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State v Suliga [2008] PGNC 33; N3307 (19 March 2008)

N3307

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 82 of 2007

THE STATE

-V-

MANEWA SULIGA

Tabubil & Sturt Island: Kandakasi, J.
2008: 5 & 19 March

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Particular Offence – Sexual penetration of 13 year old girl – Circumstances disclosing rape – Reason for change in the law – Sentences have to be higher than those previously imposed – Use of force – Victim render temporarily unconscious – No other aggravating features – Guilty plea by first time offender - Sentence of 10 years less time spent in pre-trial and pre-sentence custody imposed – Criminal Code ss.19 and 229A(1).

Papua New Guinea Cases Cited:
The State v. Kemai Lumou (23/09/04) N2684.
The State v. Eddie Trosty (10/09/04) N2681.
The State v. Peter Lare (20/05/04) N2557.
The State v. Thomas Angu (21/04/05) N2830.
The State v. John Ritsi Kutetoa, (22/03/05) N2814.
The State v Paul Nelson, (25/05/05) N2844.

Counsel:
J. Kesan for the State.
P. Kapi for the Prisoner.

19 March, 2008

1. KANDAKASI J: You pleaded guilty to a charge of sexual penetration contrary to s. 229A (1) of the Criminal Code. After receiving your address on sentence together with your lawyer and that of the State’s submissions, I adjourned to today for a decision on your sentence.

Issue Before the Court

2. The issue for the Court to decide is what is an appropriate sentence for you? In order to properly determine that issue, I need to take into account the relevant facts and the circumstances in which you committed the offence, the offence and the sentencing trend, your personal and family backgrounds and the factors operating both in your favour as well as those operating against you.

Relevant Facts

3. Turning firstly to the relevant facts, I note that, on 12 March 2007 at about 11:00 am, a young girl then aged 13 years and another little girl aged 6 years old were heading for their garden where their mother had earlier gone. This was on this island, Sturt, Island at Sailowa Village, Middle Fly, Western Province. On the way, the girls decided to take a swim in a river and went for a swim. As they were swimming, you came by them and called out to the 13 year old girl and then grabbed her by the hand and pulled her into the nearby banana patch. As you pulled the victim into the banana patch, the other small girl ran away.

4. As you pulled your victim along, you shut her mouth and removed her clothes. The victim did of course put up a struggle but you over powered her and proceeded to have forceful sexual intercourse with her. After much struggle, you sexually penetrated the victim. As the victim was a virgin, you broke her hymen causing her to become unconscious for a little while and bleed from her vagina. After you satisfied yourself, you left the victim at the place where you raped her. Eventually the victim regained her consciousness and strength and walked to the village. She reported what you did to her to her relatives. Subsequently, with the assistance of the community law and order committee and the Ok Tedi Mining Limited, you were arrested and charged and brought before the Courts.
   

The Offence and Sentencing Trend

5. When you did what you did, you broke the laws of our land. In particular, s. 229A (1) of the Criminal Code which creates and prescribes penalty for 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. As I have observed elsewhere,[1] 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. Prior to the amendment, the prescribed maximum penalty for this offence was 5 years. The amendments thus, increased the penalty to 25 years and made it apply irrespective of the sex of the victim.

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. 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 prior 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. These factors influenced me to arrive at the sentence of 6 years.

8. However, 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 a substantial age difference between them. The prisoner was 40 years old whilst the victim was under age 12 years. 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 (...13/06/03) N2419; The State v. Dii Gideon (...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 re-enacted 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 above decision and the particular circumstances in which the prisoner committed the offence in there and 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 head note to that case, I note that, the Defendant was convicted on his guilty plea to 1 count of sexual touching of a child under 12 years in 1998, 1 count of sexual penetration of a child under 12 years in 1998, 2 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 trust relationship. Clearly, the charges arose out of a pattern of sexual abuse of the victim over 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 range 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 has been exposed to sexually transmitted deceases or has become pregnant.
    

Sentence in Your Case

14. Bearing the above sentencing trend and tariffs in mind, I now turn to a consideration of a sentence in your case. For that purpose, I note and take into account what you said in your own and that of your lawyer’s address on sentence. You said sorry for committing the offence. Also, you said you are a first time offender and that you pleaded guilty to the commission of the offence. Further, you said you are a local village man and the local police did not tell you about the law and so you did what you did and now regret that you did it.
    
15. You are 29 years old while your victim was at the time of you committing the offence against her, was 13 years old. Both you and your victim come from the same village Sialowa, on Sturt Island, here in the Western Province. You are a single man not in any form of employment. You have 4 brothers and 1 sister and that, you are the first born in your family. You have been in custody for 4 months, 3 weeks and 1 day as of today.
    
16. In your favour, I note and accept that, you are a first time offender. That means you have not been in trouble with the law before. Usually the law exercises some leniency toward first time offenders, which I must ensure you are accorded with. I also note in your favour that, you pleaded guilty to the commission of the offence. This is consistent with the position you took from the point of your arrest, to committal and now before this Court. Hence, I note that, you cooperated well with the authorities. Again, this factor, in most cases, allows for some reduction or leniency toward an offender. You will be accorded the benefit this brings you. Finally, I note, that apart from the psychological pain and trauma you have caused the victim by your sexual and physical violation of her, you have not inflicted any physical injury to her.
    
17. At the same time, I note that there are a few factors operating against you. First, you committed an offence that is prevalent as the above discussion of the offence and sentencing trend and tariffs demonstrates. That is why, again as the foregoing will demonstrate, Parliament at the highest level of authority, increased penalties. Sentences for this kinds of offences have increased to as high as 22 years.
    
18. Secondly, I noted that you have in fact committed an act of rape upon the victim. You forcefully had sexual intercourse with the victim. In other words, you had sexual intercourse with the victim without her consent or approval. In your record of interview between you and the police, you said you did what you did in retaliation to the victim’s brother having what appears to be a consensual sexual affair with your sister. Even if the victim’s brother was violating your sister against her will, you should have taken steps against the victim’s brother and not your victim because she did nothing to warrant your attack on her.
    
19. Thirdly, the victim was much younger than you. You were therefore in a position to know that, what you went about doing against the victim in the way you did was wrong. Whilst I accept that you might come from a remote part of our country and may not have been aware of the existence of the law, that is no excuse for the commission of the offence because you and everyone in our country knows that it is not right for a person to sexually violate a young girl in the way you did.
    
20. Finally, I note that, you and the victim come from the same village. I note that in most of our village communities everyone looks for and after each member in the village. There is never an expectation that a member of the village will turn against any other member and commit an offence. There seem to be an unfortunate trend now of people no longer respecting first of all, the family units and then, the village or community units and the relationships that exist there, from time immemorial and our communities have existed peacefully with the presence of courts, police, and correction services. There is hence a need to arrest the situation by imposing appropriate and sterner penalties to help deter this bad development from spreading.
    
21. Weighing the factors for and against you, as well as your family and personal backgrounds, I find that, the factors against you seem to outweigh those in your favour. However, I do not find this to be a case that warrants the maximum prescribed penalty as I am not able to find this to be the worse case of its kind. Your case does not come any where closer to the case of The State v. Peter Lare,[11] or even that of The State v. Thomas Angup.[12] Also I do not consider that your case comes closer to any of the other cases in which sentences have being imposed over 10 years, because in most of those cases, there was an element of direct trust being breached.
    
22. Instead, I am of the view that, your case is a bit worse than the case of The State v. Eddie Trosty.[13] Taking into account the particular facts in that case and those in your case, I am of the view that your sentence should be beyond 6 years which was the sentence imposed in that case. In that case there was consensual sexual intercourse between a boyfriend and a girlfriend. The only problem was that, the victim was under the age of 16. In your case, you in fact raped the victim. You physically assaulted her in addition to your sexual attack of her. In all of the circumstances, I consider a sentence of 10 years appropriate. Out of that 10 years, I order a deduction of the period of 5 months, 2 days, you have already spent in custody. That will leave you with a balance of 9 years, 6 months and 5 days yet to serve. I order that you serve that time in hard labour at the Ningerum Correction Services.
    

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

^[1] As in The State v. Kemai Lumou (23/09/04) N2684.
^[2] (10/09/04) N2681.
^[3] (20/05/04) N2557.
^[4] Supra note 1.
^[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.