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State v Gisigesi [2010] PGNC 126; N4124 (12 August 2010)

N4124

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 436 OF 2007

THE STATE

V

LUKE TOYANA GISIGESI
and JOSEPH MWAISIGA

Losuia: Hartshorn J.
2010: 3rd, 10th, 12th, August

CRIMINAL LAW – s. 229A (1) Criminal Code – Sexual Penetration of child under the age of 16 years – Conviction after trial – Penalty to be imposed

Facts:

The two accused were convicted after a trial for the offence of sexual penetration contrary to s 229A (1) of the Criminal Code Act. The victim was
14 year old at the time of the offence. She is believed to have been the girlfriend of one of the co-accused.

Held:

1. An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered (The State v. Lucas Yovura (2003) N2366, per Kandakasi J)

2. The sentence imposed upon Luke Gisigesi is 9 years imprisonment with hard labour.

3. The sentence imposed upon Joseph Mwaisiga is 11 years imprisonment with hard labour.
4. Time spent in pre-trial custody shall be deducted

Cases cited:

The State v. Lucas Yovura (2003) N2366
The State v. Eddie Trotsy (2004) N2681
Stanley Sabiu v The State (2007) SC866
The State v. Philip Soni (2008) N3694
The State v. Brown Kawage (2009) N3696
The State v. Simam July Melly (No 2) (2009) N3779

Counsel:

Mr. J. Done, for the State
Mr. G. Pipike, for the Accused L.T. Gisigesi
Ms. E. Wurr for the Accused J. Mwaisiga

12th August, 2010

1. HARTSHORN J. The two accused have been convicted of the charge of sexually penetrating a child under the age of 16 years pursuant to s. 229A (1) Criminal Code. The crime occurred on 5th July 2006 at Bwekwau, Losuia, Milne Bay Province. The child was aged 14 years 8 months at the time.

2. The brief facts are that at about 7pm on 5th July 2006 the accused Luke Toyana Gisigesi (Gisigesi), had sex with the complainant. When Gisigesi had finished, the accused Joseph Mwaisiga (Mwaisiga) appeared, grabbed the legs of the complainant and also had sex with her. Both accused sexually penetrated the victim contrary to s. 229A (1) Criminal Code.

3. The penalty is prescribed in s. 229A (1) as subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years. As the victim was not under the age of 12 years and there was no existing relationship of trust, authority or dependency contained in the indictment, the maximum penalty of life imprisonment does not apply.

Circumstances of the offenders

4. Gisigesi is now about 23 years of age being 19 years of age at the time of the incident. He is single. His parents are alive, he is the oldest of three children and a member of the United Church. He does not have any previous convictions. He apologised for what he had done including to the victim and requested that he be placed on a good behaviour bond so that he can return to his village and look after his parents who are very old.

5. Mwaisiga is now 23 years of age being 20 years of age at the time of the incident. He is single, his mother is still alive and he is the oldest of three children and a member of the United Church. He does not have any previous convictions. He apologised for what he had done including to the victim. He requested that he be placed on a good behaviour bond so that he can return to his village and look after his family.

6. Counsel for Gisigesi submitted in mitigation that the Court take into account that; he is a first time offender, he was young at the time of the offence, the age difference between Gisigesi and the victim is not significant being 4 years, the victim being about 15 years of age at the time, Gisigesi had expressed how remorseful he was, no weapons or violence were used and there was evidence of consent on behalf of the victim. This was a one off, isolated incident and Gisigesi and the victim were boyfriend and girlfriend at the time. The sentence of 25 years should be reserved for the worst case and this was not in the worst case category. Section 229A was enacted to protect young girls and boys from adults. In this instance they were boyfriend and girlfriend and some cultures are different as to when girls or young women become sexually mature. The sentence that this Court imposes should reflect the crime and its circumstances. A sentence of anything up to 8 years was urged.

7. Counsel for Mwaisiga submitted in mitigation that the court should take into account that he is a first time offender, he is remorseful which is genuine, the age difference between the victim and him was 5 years which is not significant, the victim did not suffer any injury, there was no threat of violence, he was cooperative with the police and that this is a one off incident. A sentence of between 6 and 10 years was urged.

8. Counsel for the State submitted that the manner in which the offence occurred was similar to pack rape. Gisigesi had befriended the victim, had sexual intercourse with her and then another participant followed. Although it was not included in the indictment, the actions of Gisigesi constituted a betrayal of trust and that a sentence of imprisonment of up to 15 years should be considered. In respect of Mwaisiga counsel for the State adopted these submissions and also reiterated that s. 229A was part of comprehensive amendments that were made by Parliament to protect child victims of sex crime. The offence continued to be on the rise especially in Losuia and that the sentences to be imposed should act as a deterrent. Counsel also mentioned that by both of the offenders pleading not guilty, the victim had to relive the ordeal again. In addition, the State had been put to the expense and inconvenience of conducting a trial.

9. As to an appropriate sentence to be imposed in the circumstances, in the Supreme Court decision of Stanley Sabiu v. The State (2007) SC866 after reviewing various National Court decisions concerning s.229A Criminal Code, the Court of which I was a member, said that:

"In 5 cases where the victims were between 13 and 15 years of age, sentences of imprisonment imposed were 20, 17, 15, 12 and 10 years.

The general principles of sentencing provide that the maximum sentence is reserved for the worst cases: Maima v. Sma [1972] PNGLR 49. The maximum sentence for sexually penetrating a child under the age of 16 years is 25 years imprisonment and the maximum sentence for sexually penetrating a child under the age of 12 years is life imprisonment. What should the starting point be in such cases? In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that the sexual penetration of children under the age of 12 years is the more serious, hence the larger maximum penalty. In The State v. Biason Benson Samson (supra) Cannings J. determined that the starting point in a case involving a 13- year-old victim was 15 years imprisonment. We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than 15 years imprisonment."

10. As to a starting point in a case involving a 15-year-old victim, I am of the view that it should be at least 10 years imprisonment taking into account the above comments and the fact that the law does not recognise consent by a girl under the age of 16 years as a defence. I will proceed on this basis accordingly.

11. Further on in Sabiu's case (supra) the Supreme Court said:

"In considering the circumstances of a particular case, Cannings J. in The State v. Biason Benson Samson (supra) restated a list of considerations for sentencing in respect of child sexual penetration cases that he had previously mentioned in The State v. Pennias Mokei (No 2) (supra). These considerations were adopted by Lay J in The State v. Ndrakum Pu-Uh (supra), and are:

a) Is there only a small age difference between the offender and the victim?

b) Is the victim not far under the age of 16 years?

c) Was there consent?

d) Was there only one offender?

e) Did the offender use a threatening weapon and not use aggravated physical violence?

f) Did the offender cause physical injury and pass on a sexually transmitted disease to the victim?

g) Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?

h) Was it an isolated incident?

i) Did the offender give himself up after the incident?

j) Did the offender cooperate with the police in their investigations?

k) Has the offender done anything tangible towards repairing his wrong such as offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?

l) Has the offender caused further trouble to the victim or the victim's family since the incident?

m) Has the offender pleaded guilty?

n) Has the offender genuinely expressed remorse?

o) Is this his first offence?

p) Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?

q) Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

We are of the view that the above are useful guidelines to be considered in sentencing for child sexual penetration cases. We emphasis however that it is for the trial judge to determine the sentence to be imposed after having regard to all of the circumstances of the particular case before him.

12. I adopt the above guidelines in considering the appropriate sentences to be imposed in this case.

13. Before I consider the sentence that should be imposed taking into account the above guidelines, I referred earlier to the fact that both of the offenders had sought to be placed on good behaviour bonds so that they could remain in their respective villages to care for family members. In this regard I refer to the comments of Kandakasi J in The State v. Lucas Yovura (2003) N2366 where his Honour said that an offender's background or family circumstances or concerns should have little or no weight against the need to impose a sentence or punishment that best befits the offence committed. I respectfully agree with those comments. An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered.

14. I mention that I have considered the following cases in coming to my decision as to what are appropriate sentences to be imposed in this case:

a) The State v. Eddie Trotsy (2004) N2681, where Kandakasi J imposed a sentence of 6 years upon a 21-year-old offender who pleaded guilty in respect of his 15-year-old girlfriend with whom he had had sexual intercourse before with consent.

b) The State v. Philip Soni (2008) N3694, Gavara Nanu J imposed an effective sentence of 12 years upon two accused who were 18 and 23 years of age at the time of sexually penetrating a 14-year-old mentally disabled girl without consent.

c) The State v. Brown Kawage (2009)N3696, were David J imposed a sentence of 14 years upon a 24-year-old offender who pleaded guilty in respect of a 14-year-old victim. There was a breach of a relationship of trust and aggravated violence.

d) The State v. Simam July Melly (No 2) (2009) N3779, where Makail J imposed an 8 year sentence and ordered payment of compensation upon a married offender in respect of a 15-year-old victim. There were reported acts of sexual penetration overtime with consent.

15. In regard to Gisigesi, in considering his position with reference to the guidelines approved in Sabiu's case (supra), there is a 4 year age difference between him and the victim, the victim was over a year away from her 16th birthday, there was evidence of consent but there was more than one offender, no weapon or violence was used, there was no injury caused or any evidence of any disease passed, there was a relationship of trust in that Gisigesi and the victim were boyfriend and girlfriend, Gisigesi and the victim had had sex before, he co-operated with police, there is no evidence of reparations or any further trouble, he pleaded not guilty, he has shown remorse, this is his first offence, he is a youthful offender.

16. In regard to Mwaisiga, there is a 5 year age difference, the victim was over a year away from her 16th birthday, there was no evidence of consent, there was one other offender, no weapon or violence was used, no injury was caused or disease passed, no relationship of trust, he co-operated with police, there is no evidence of reparations or any further trouble, he pleaded not guilty, he has shown remorse, this is his first offence, he is a youthful offender.

17. As for Gisigesi the major mitigating factors are that he was the victim's boyfriend, he had had sex with her before, and there was evidence of consent. The major aggravating factor is that there was more than one offender. In the circumstances therefore the sentence that I impose upon Luke Gisigesi is 9 years imprisonment with hard labour.

18. As for Mwaisiga, there are not as many mitigating factors in his favour and the major aggravating factor is that he was one of two offenders. In the circumstances therefore the sentence that I impose upon Joseph Mwaisiga is 11 years imprisonment with hard labour.

19. For the avoidance of doubt, there shall be deducted from their terms of imprisonment the period in custody that each of the offenders has already spent in relation to this matter.

_______________________________________________
Office of the Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Offender Luke Gisigesi
Office of the Public Solicitor: Lawyer for the Offender Joseph Mwaisiga