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State v Magu [2008] PGNC 299; N3878 (19 November 2008)

N3878

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1216 of 2008

THE STATE

-V-

NELSON MAGU

Buka: Kandakasi, J.
2008: 12th & 19th November

CRIMINAL LAW –Sentence – Sexual penetration of a girl under 16 years – Several instances of sexual penetration but charged with one count – No serious injury, pregnancy or sexually transmitted decease – Substantial age difference – No compensation paid – Guilty plea – No prior convictions - 14 years sentence imposed – Section 229A(1) of Criminal Code.

Cases cited:

The State v. Alex Noga CR 1082 of 2007
The State v. Eddie Trosty (2004) N2681
The State v. Peter Lare (2004) N2557
The State v Kemai Lumou (2004) N2684
The State v. Thomas Angup (2005) N2830
The State v. John Ritsi Kutetoa (2005) N2814
The State v Paul Nelson (2005) N2844

Counsel:

D. Mark, for the State
P. Kaluwin, for the Accused

19th November, 2008

1. KANDAKASI J: You pleaded guilty to a charge of sexual penetration of child under the age of 16 years, contrary to s.229A (1) of the Criminal Code. The only issue left for me to decide is, what is an appropriate penalty for the offence you committed?

Relevant Facts

2. The issue before me can only be determined by reference to the relevant facts of the case, your personal background, the factors operating both in your favour and those against you and the kind of sentences imposed in other similar cases.

3. I will first consider the relevant facts which are these. On 12th February 2008, the victim of your offence, a girl then aged 13 years was home alone. She had returned from her elementary school that day. That was in the afternoon between 3:00 and 4:00pm. You went to her house looking for a hammer. On seeing you, the victim became afraid and tried to hide from you because you had on previous occasions had sexual intercourse with her without her consent.
   
4. You continued to call upon the victim. On realizing eventually that, you were with your little son, the victim took comfort and came over to you and she went looking for the hammer inside her house. While she was doing that, your son left and you were left alone with her. You approached her, lifted up her skirt. Then you told her to bend down but she did not do that. You forced her to do so by pushing her down from her neck. Thereafter, you took out your fully erected penis, put some saliva onto her vagina and inserted your penis and had sexual intercourse with her. After satisfying yourself, you left her at her house and went away. Not long after, her parents came home and she reported what you did to her mother. That lead eventually led to your arrest and being charged and committed to stand trial before this Court.
   

The Offence and Sentencing Trend

5. I will repeat what I said about the offence and sentencing trend in the decision I handed down yesterday in the matter of The State v. Alex Noga.[1] As I said there, s. 229A (1) of the Criminal Code creates and prescribes the offence of sexual penetration of a child under 16 years of age as follows:

"229A. Sexual penetration of a child.

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years."

6. This was an improvement and upgrading in terms of the penalty by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 by way of an amendment to the then existing law. The offence prior to the amendment prescribed a maximum penalty of 5 years. The amendment thus increased the penalty to 25 years and made it apply irrespective of the sex of the victim. This came about out of serious concerns over the sexual abuse and exploitation of young children and women and the previous penalties imposed by the Courts seem not to stop people like you from committing this offence.

7. In a number of cases, as in The State v. Eddie Trosty,[2] I held that, in view of the reasons for the amendments to the law, sentences for the offence of sexual penetration of girls under the age of 16 must be beyond the maximum prescribed under the old law. I then decided to impose a sentence of 6 years on a guilty plea in that case. The prisoner and his victim had a boyfriend and girlfriend relationship. The victim was 15 years old whilst the prisoner was 21 years old at the time of the offence. They had several consensual sexual intercourses. The prisoner did not cause any injuries to the victim. He also did not introduce the victim to any sexually transmitted disease or make her pregnant. These factors caused me to arrive at the sentence of 6 years.

8. Earlier on, in The State v. Peter Lare,[3] I imposed a sentence of 20 years. There, the prisoner was an uncle to the victim and he had several and or repeated acts of sexual penetration of the victim over a four year period. There was substantial age difference between them. The prisoner was 40 years old whilst the victim was under the age of 12. The prisoner did not express any genuine remorse evidenced by a lack of payment of any form of compensation to the victim and her side. Further, the prisoner infected the victim with a sexually transmitted decease.

9. In arriving at that sentence, I noted that, the:
   

"... amending legislation came about out of a growing concern over an ever increasing and prevalent sexual offences and crimes against children. This concern was not only a local PNG concern but a world wide concern to protect the victims of such crimes particularly women, girls and children because of their vulnerability and therefore not able to defend themselves. The amendment also represents an action by Parliament against past sentences not deterring offenders like you and other would be offenders. Many judgments have acknowledged this failure of the past sentences. Examples of such judgments to name only a few are: The State v. Damien Mangawi (Unreported judgment delivered on 13/06/03) N2419; The State v. Dii Gideon (Unreported judgment delivered on 05/03/02) N2335.

No doubt, Parliament [was] ...aware of the kind of sentences the Courts were imposing and more importantly those sentences failing to deter other men and older boys who were intent on committing this offence against small girls. Some of the cases that went before the Courts were actually rape and others were cases of incest in blatant breach of trust placed in the older offenders by the victims as close relatives. Parliament therefore felt the need, in my view, to re-emphasis the seriousness of the offence and reenacted the offence and in terms of the particular wording in s. 229A. This enactment has come at a time when past sentences have certainly not deterred people like you from committing the offence despite all the concerns raised publicly both within our country and in the international arena".

10. In The State v. Kemai Lumou,[4] I had regard to the sentence and the particular circumstances in which the prisoner committed the offence in the above case and then imposed a sentence of 17 years. There, the Court convicted the prisoner after a trial. The facts disclosed a rape of a niece by an uncle using a bush knife. The victim was much younger than the offender was. Despite this, the State charged him with sexual penetration and not rape.

11. Sometime later, Mr. Justice Lay had regard to my judgment in The State v. Peter Lare,[5] and imposed a sentence of 20 years for one out of a number of sexual offence charges in the case of The State v. Thomas Angup.[6] From the headnote to that case, I note that, the defendant was convicted on his guilty plea to one count of sexual touching of a child under 12 years in 1998, one count of sexual penetration of a child under 12 years in 1998, two counts of sexual penetration of a child under 16 years, in 2000 and another one in 2003, on unspecified dates. The prisoner committed these offences in breach of an existing relationship of trust. Clearly, the charges arose out of a pattern of sexual abuse of the victim over a period of 6 years. The victim became pregnant and bore a son before she reached age 16. Due to her pregnancy, the victim's schooling got terminated prematurely.

12. Cannings J, in his judgment in The State v. John Ritsi Kutetoa,[7] cited the judgments in The State v. Peter Lare,[8] and The State v Kemai Lumou[9] and imposed a sentence of 17 years. There, the prisoner got his stepdaughter into a room in their house, where he sexually penetrated her. The victim was about 11 years old at the time. There was a relationship of trust being a stepfather and stepdaughter which the prisoner breached.

13. Subsequently, Cannings J., in The State v Paul Nelson,[10] in my view, gave an excellent summation and a comparable table of nearly all of the cases on sexual penetration under s. 229A of the Code thus far dealt with by the Court since the amendments in 2002. That summation shows that, sentences have ranged from as low as 2 years up to the highest at 20 years. Those going beyond 2 years and 6 years have been in cases, where the offenders committed the offence in breach of an existing trust, there exists serious aggravating factors such as, serious injuries, threats or actual use of violence to secure the commission of the offence, or the victim had been exposed to sexually transmitted deceases or had become pregnant.

Sentence in Your Case

14. In order to determine what sentence is appropriate in your case, I need to take into account and weigh both the factors operating for and against you. Considering first the factors in your favour, I note that, your conviction was on your guilty plea. That saved the State the time and money it could have spent on running a trial. It also spared the victim of the shame and trouble you could have put her through to come into Court and testify against you.

15. Secondly, I note that, this is your first ever conviction. That means, until the commission of offence for which you are in Court, you have been a good law abiding citizen. All of that has now been tarnished by your own senseless conduct against a young child.

16. Finally, I note that, you did not use any dangerous weapon such as a gun, bush knife or an axe or anything like that to secure the various acts of sexual intercourse with the victim. The absence of the use of such weapons usually operates in favour of an offender.

17. I note that, you did say sorry for committing the offence. However, there is no evidence of you paying any compensation or taking any tangible step to show your remorse as is required by the customs and tradition of your society. You did not immediately admit committing the offence when you were arrested and charged. It seems you took your sexual attacks on the victim were acceptable. In the circumstances, I do not find your expression of remorse to be genuine.

18. Turning specifically then to the factors against you, I firstly note that, you engaged in not only one incident of sexual intercourse with the victim but on numerous occasions. This went on over a period of time. Fortunately, however, you were charged with only one of the incidents. Sexual abuse and exploitation of young children in the way you did is a very serious offence that requires a serious response for the protection of our young children who are our nation's vital citizens and leaders of tomorrow.

19. Secondly, you were in a position of trust if not real, a de facto one. The victim and you lived in the same village and she called you an uncle and you called her a niece or in our way of speaking a "daughter". Fortunately for you, however, the State did not include this factor in the indictment against you and the supporting facts. I will therefore not place any serious weight on this factor against you.

20. Nevertheless, I note that, you are a mature older person married with your own children. No one in the victim's position would have expected you to violate her in the way you did but you did. You did not provide any reason for doing what you did. It goes without much further that, you wanted to satisfy your sexual desires through the violation and exploitation of the victim. There is no evidence of the victim doing anything to attract what you did to her. You destroyed the trust she had in you as fellow villager, an uncle and a older member of the community.

21. Thirdly, I note that you have taken away the victim's virginity and introduced her to sexual relations with man. You did that using your position as an older and stronger person against a very younger tender aged female child. No doubt there was a much wider age difference between you and her.

22. Finally, you committed an offence that is prevalent. It is the prevalence of this offence not only in Papua New Guinea but almost the world over that has caused Parliament to amend the law by increasing the penalty from 5 years previously to 25 years now. This is necessary because children, young girls and women in our society need the protection of everyone in the society. They have been repeatedly violated and treated by some, only as mere sex objects as if they have no human dignity and a right to life and a right to live in our various societies. The courts have followed Parliament's wish and have imposed stiffer penalties compared to what they used to impose prior to the change in the law.

23. I find that a careful consideration of the factors both for and against you does not place your case closer to the cases of The State v. Peter Lare,[11] and The State v. Thomas Angup[12] or even that of The State v. Alex Noga.[13] This is because, you have not made the victim pregnant or infected her with a sexual transmitted deceased.
    
24. Carefully considering all of the foregoing, I am persuaded that, I should impose a sentence lower than the ones imposed in the above three cases. Hence, I consider a sentence of 12 years appropriate and I impose that sentence against you. Of that sentence, I order a deduction of your pre-trial and pre-sentence custody period of 8 months. This will leave you with the balance of 11 years, 4 months.
    
25. I have given some serious consideration to suspending either the whole or part of the sentence and have decided against it because of the risks of your re-offending. The pre-sentence report does not rule that out. Material on the court does show that you have the propensity to re-offend. As I noted yesterday in the Alex Noga case, in cases of sexual offences by older and stronger males against younger females, there is a propensity for the offender to re-offend. This is confirmed for instance by the repeated acts of sexual intercourse over a period of time in your own case, the case of The State v. Peter Lare,[14] and The State v. Thomas Angup[15] and the Alex Noga case. Imprisonment of you is the only option left for the protection of the victim and to ensure that you do not re-offend against other possible victims. It is also hoped that your imprisonment will tell you and other men in Bougainville that it is serious and wrong for a adults to sexually abuse and violate young children. This is one kind of offence in which there can be no compromise with custome or any form of suspended sentence because it is a serious offence and there is a tendency of repeat offending.
    
26. In the end, you are left to serve the balance of your sentence of 11 years and 4 months to serve in prison. I order that you serve your sentence in hard labour at a Correction Service facility here in Autonomous Region of Bougainville or at the Kerevat Correction Service in the East New Britain Province. A warrant of commit in those terms shall be issued forthwith.
    

_____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

^[1] CR 1082 of 2007.
^[2] (10/09/04) N2681.
^[3] (20/05/04) N2557.
^[4] (23/09/04) N2684.
^[5] Supra note 2.
^[6] (21/04/05) N2830.
^[7] (22/03/05) N2814.
^[8] Supra note 2.
^[9] Supra note 3.
^[10] (25/05/05) N2844.
^[11] Supra note 2.
^[12] Supra note 5.
^[13] (supra) note 1.
^[14] Supra note 2.
^[15] Supra note 5.