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State v Rome [2007] PGNC 215; N5048 (13 July 2007)

N5048

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 502 0F 2007

THE STATE

V

CHARLES ROME

Kimbe: Cannings J
2007: 16 May, 3, 13 July

CRIMINAL LAW – sentence – two counts of sexual touching of a child under the age of 16 years plus one count of sexual penetration of a child under the age of 16 years – circumstances of aggravation – child under the age of 12 years – existing relationship of trust – Criminal Code, Sections 229B, 229A - guilty plea.

The offender pleaded guilty to two counts of sexual touching and one count of sexual penetration of a 10-year-old boy. There was an existing relationship of trust in that the offender was a friend of the boy's parents and was living in their house.

Held:

(1) When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle. The following notional sentences were passed:

(a) count 1 (sexual touching): 3 years;

(b) count 2 (sexual touching): 3 years;

(c) count 3 (sexual penetration): 12 years;

resulting in a total potential sentence of 18 years imprisonment.

(2) The offences were committed as part of a single incident and there was one victim, so the sentences should be served concurrently. The totality principle does not require any reduction of the sentence. The court imposed a total head sentence of 12 years. The pre-sentence period in custody was deducted. None of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Jack Mari v The State SCR No 19/2006. 02.03.07
Joe Nawa v The State SCR No 16/2006. 02.03.07
Saperus Yalibakut v The State (2006) SC890
The State v Biason Benson Samson (2005) N2799
The State v George Taunde (2005) N2807
The State v Gerard Apeau CR No 1042/2006, 27.03.07
The State v Ian Unawing CR No 392/2005, 19.08.05
The State v Jeffery Toapas CR No 1924/2005, 25.08.06
The State v Joe Putubu CR No 1042/2006, 23.08.06
The State v John Ritsi Kutetoa (2005) N2814
The State v Johnson Roman CR No 1924/2005, 23.03.07
The State v Paul Nelson (2005) N2844
The State v Pennias Mokei (No 2) (2004) N2635
The State v Titus Soumi (2005) N2809
The State v Willie Dominic (2005) N2938

PLEA

An accused pleaded guilty to sexual touching of a child (two counts) and sexual penetration of a child (one count).

Counsel

F Popeu, for the State
O Oiveka, for the accused

13th July, 2007

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to two counts of sexual touching of a child under the age of 16 years and one count of engaging in an act of sexual penetration with that child, arising from an incident on the afternoon of Sunday 25 February 2007 at the staff quarters of Liamo Reef Resort Hotel, Kimbe, where the offender was employed. The victim was a 10-year old boy and the offender was living with the boy's parents. The boy's father was also a hotel employee. The offender was under the influence of liquor. He went to the house, where he found the boy alone, removed the boy's shorts, fondled the boy's penis with his fingers then removed his own trousers and forced the boy to hold his penis. He then put the boy onto a bed and penetrated the boy's anus with his penis. The boy struggled, managed to free himself, ran out of the house and reported the incident to a neighbour. There was an existing relationship of trust because the offender was living in the same house as the victim.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender said:

I am a first time offender. I deeply regret committing this crime. I feel great shame and disgust at what I did. I promise not to repeat what I did. I ask for mercy and probation. I want to continue working. I have no immediate family members around Kimbe. If I am sent to prison, I request a transfer to Kerevat. I have already been sodomised by two inmates while in custody and this has caused me humiliation and I fear for my own safety. I was threatened after reporting that incident so there is no guarantee of my safety if I stay at Lakiemata.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty, he is entitled to benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). The depositions show that the offender was arrested and detained in custody soon after the incident. He co-operated with the police and made full admissions in his police interview, which was conducted three days after the incident. He told the police he was sorry and ashamed of what he did to the boy. I accept the statements in the allocutus as a genuine expression of remorse and shame. The prosecutor did not take issue with what the offender said about being sexually assaulted and threatened while in custody, so I accept those claims as true.

PRE-SENTENCE REPORT

5. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

CHARLES ROME: 31-year-old male.

Residence: was living at Liamo staff quarters at time of incident.
Family background: mixed parentage: New Ireland/East New Britain – comes from broken family – youngest of two children from his mother's first marriage – his stepfather has since left his mother – he was brought up by his aunty, while at school, at Nabaul village, Duke of York Islands.
Marital status: was married with one child – now separated.
Education: grade 10, Rabaul High School (1992); Certificate in Business Studies, Rabaul Business College (1994).
Employment: has had a number of jobs over the years, eg Travelodge Hotel, Department of Lands, PNGBC, Mobil Lihir – came to Kimbe in 2006 to search for employment with ANZ Bank – got job at Liamo in January 2007.
Health: OK.
Financial status: now unemployed, without income.
Plans: pursue a career in banking.
Victim's attitude: clearly remembers the incident, a painful experience.
Victim's parents' attitude: still angry with the offender, do not want to see him around and want him severely punished.
Offender's family's attitude: the offender's mother, who works in Kokopo, was contacted but could not talk as she was at work – further attempts to contact her were unsuccessful.
Attitude of community: he had not been in Kimbe long before the incident, so nothing is known about him.
Assessment: could be a danger to others.
Recommendation: not recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Oiveka asked me to place a lot of weight on the guilty plea and the expression of genuine remorse and to note that the offender comes from a dysfunctional family. The three sentences should be served concurrently and the total sentence should be in the range of five to six years, he submitted.

SUBMISSIONS BY THE STATE

7. Mr Popeu conceded that the sentences should be served concurrently but that the total sentence should be in the range of 14 to 15 years. The offences were very serious and in the circumstances were tantamount to rape.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty for each offence?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?
• step 9: what should the place of detention be?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. For counts 1 and 2 – sexual touching of a child under the age of 16 years, in two circumstances of aggravation (the child was under the age of 12 years and there was an existing relationship of trust: Criminal Code, Sections 229B(1), (4) and (5)) – the maximum penalty is 12 years imprisonment for each offence. For count 3 – engaging in an act of sexual penetration with a child under the age of 16 years, in the same two circumstances of aggravation (the child was under the age of 12 years and there was an existing relationship of trust: Criminal Code, Sections 229A(1), (2) and (3)) – the maximum is life imprisonment. Therefore the maximum is life imprisonment. I have discretion, of course, to impose less than the maximum term and suspend part or all of the sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS THE STARTING POINT FOR EACH OFFENCE?

10. The Supreme Court has yet to give sentencing guidelines for these sorts of offences but based on sentences that have been imposed by the National Court and some sentences that have been reviewed by the Supreme Court, I will use the following starting points:

• for counts 1 and 2, sexual touching: the middle of the available range: six years;
• for count 3, sexual penetration, given that the maximum sentence is life imprisonment: 20 years.
  

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. I will summarise in table 1 the sentences I have imposed since 2004 for sexual touching; in table 2, the sentences I have imposed in the same period for sexual penetration; and in table 3, the result of three recent Supreme Court cases, where there was an appeal against sentence for sexual penetration.

TABLE 1: SENTENCES FOR SEXUAL TOUCHING

TABLE 2: SENTENCES ON SEXUAL PENETRATION OF A CHILD

TABLE 3: SUPREME COURT SENTENCES ON SECTION 229A

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

12. As to counts 1 and 2, having regard to the sentences I have imposed in previous cases, I fix a head sentence of three years for each offence.

13. As to count 3, there are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 9 focus on the circumstances of the incident. Numbers 10 to 14 focus on what the offender has done since the incident and how he has conducted himself. Numbers 15 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Is there only a small age difference between the offender and the complainant? No – the offender was aged 31 and the complainant 10; an age gap of 21 years.
   
2. Is the complainant not far under the age of 16 years? No.
   
3. Was there consent? No.
   
4. Was there only one offender? Yes.
   
5. Did the offender not use a threatening weapon and not use aggravated physical violence? Yes.
   
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the complainant? Yes.
   
7. Did the incident have only a minimal impact on the child? No.
   
8. Was there no relationship of trust, dependency or authority between the offender and the complainant or, if there was such relationship, was it a distant one? No.
   
9. Was it an isolated incident? Yes.
   
10. Did the offender give himself up after the incident? No.
    
11. Did the offender cooperate with the police in their investigations? Yes.
    
12. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did? No.
    
13. Has the offender not caused further trouble to the complainant or the complainant's family since the incident? Yes.
    
14. Has the offender pleaded guilty? Yes.
    
15. Has the offender genuinely expressed remorse? Yes.
    
16. Is this his first offence? Yes.
    
17. Can the offender be regarded as a youthful offender? No.
    
18. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes – he has been sexually assaulted and threatened while in custody.
    

14. There are ten mitigating factors compared to eight aggravating factors. However, it is not the comparative number of mitigating and aggravating factors that solely determines the sentence. It is the strength of each factor that is crucial. What saves the offender from a sentence of around 20 years is his public and genuine expression of remorse, shame and disgust at what he did; his co-operation with the police and, of course, his guilty plea. I impose a head sentence of 12 years imprisonment.

15. The total potential sentence the offender is facing is:

3 years (sexual touching) + 3 years (sexual touching) + 12 years (sexual penetration) = 18 years.

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

16. The question is whether the sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together). Al three offences were committed in the course of a single incident in which there was one victim, so the sentences should be served concurrently.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

17. I now look at the total sentence the offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence. I consider that 12 years would not be excessive. These were very serious offences and 12 years is not out of proportion to the gravity of the crimes or the length of sentences that have been imposed in other cases.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is our months, two weeks, one day.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. No. The pre-sentence report does not warrant suspension. Little is known about the offender. He came to Kimbe only recently and he has no support network here. Attempts to contact his family in East New Britain were unsuccessful.

STEP 9: WHERE SHOULD THE PLACE OF DETENTION BE?

20. The offender has made a request for transfer to Kerevat Correctional Institution. I think the transfer is reasonable for two reasons. First, Kerevat is close to where his relatives reside and he has a right under Section 37(20) of the Constitution to be detained in that vicinity. Secondly, he has already been sexually assaulted while in custody in Kimbe. It is better for his own safety and the level of security and order prevailing at Lakiemata Correctional Institution if he is transferred. I will grant his application for transfer and order that his security is preserved until he is transferred.

ORDER

(1) Charles Rome, having been convicted of two counts of sexual touching of a child under the age of 16 years and one count of engaging in an act of sexual penetration with a child under the age of 16 years is sentenced as follows:

(2) Charles Rome shall be transferred to Kerevat Correctional Institution within 14 days after the date of sentence.

(3) The Jail Commander, Lakiemata Correctional Institution, shall institute special measures to preserve the security of the offender pending his transfer to Kerevat.

Sentenced accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender