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State v James [2011] PGNC 336; N4314 (9 June 2011)

N4314

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1673 OF 2003

THE STATE

V

KOLA JAMES

Madang: Cannings J
2011: 17 May, 2, 9 June

SENTENCE

CRIMINAL LAW – Criminal Code, Division IV.2A, Sexual Offences Against Children – Section 229A(1), engaging in act of sexual penetration with a child under the age of 16 years – sentence after guilty plea – offender aged 18 at time of offence, child, a girl, aged 13 – consensual sex – no violence – sentence of 4 years imprisonment.

The offender pleaded guilty to engaging in an act of sexual penetration with a 13-year-old girl. He was aged 18 at the time. It was consensual sex. This is the decision on sentence.

Held:

(1) The maximum penalty for the offence of engaging in an act of sexual penetration with a child under the age of 16 years, without circumstances of aggravation, is 25 years imprisonment; therefore it is appropriate to use 12 years imprisonment as a starting point when sentencing.

(2) Consent is not an element of an offence under Section 229A, though the presence of consent can be a mitigating factor for sentencing purposes if the child is at an age that consent can be regarded as real; and in this case it was accepted that it was real.

(3) Mitigating factors were: no weapon or aggravated violence used against the victim; no physical injury to the victim; there was consent between the offender and the victim; the offender has caused no further trouble; he pleaded guilty; he has cooperated with the police; he is a first-time offender; he and the victim's family would like to reconcile.

(4) An aggravating factor was the tender age of the victim and the fact that the offender has not co-operated with the justice system in having the matter resolved, resulting in him being arrested seven years after a warrant for his arrest was issued.

(5) The offender was sentenced to 4 years imprisonment, the pre-sentence period in custody was deducted and three years of the sentence was suspended, subject to conditions.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Biason Benson Samson (2005) N2799
The State v Charles Rome CR No 502/2007, 13.07.07
The State v Francis Guandi Borie CR No 289/2007
The State v George Taunde (2005) N2807
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 John Ritsi Kutetoa (2005) N2814
The State v Johnson Roman CR No 1924/2005, 23.03.07
The State v Paul Gule CR No 686/2006, 24.08.07
The State v Pennias Mokei (No 2) (2004) N2635
The State v Sawan Raumo CR No 876/2007
The State v Titus Soumi (2005) N2809
The State v Willie Dominic (2005) N2938

PLEA

The offender pleaded guilty to engaging in an act of sexual penetration with a child under the age of 16 years and the following reasons for sentence were given.

Counsel

P Kaluwin & S Collins, for the State
A Turi & A Meten, for the offender

9 June, 2011

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to the offence of engaging in an act of sexual penetration with a child under the age of 16 years contrary to Section 229A(1) of the Criminal Code. On the night of 26 July 2003 at Mareg Hamlet, Yabob, on the edge of Madang town, the offender took the victim to an unoccupied house and had sexual intercourse with her by introducing his penis into her vagina. It was consensual sex.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I say sorry to the victim and to her family and to the court for what I did. It is my first time to appear in court and I ask for the court's mercy.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard I emphasise that the 'short facts' to which he pleaded guilty included acceptance of the claim, which he has consistently made, that this was a planned tryst between him and the victim. Although she was under age and the question of whether she consented is not relevant to whether an offence was committed, the presence of consent in these sorts of cases can be a mitigating factor for sentencing purposes if the child is at an age that consent can be regarded as real; and in this case it is agreed that it was real.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service.

Personal details of Kolo James

Age : 25
Origin : Mareg Hamlet, Yabob, Madang
Upbringing : Mareg and Madang town
Marital status : Single
Family : Both parents alive, 5 siblings
Education : Grade 8, Lutheran Day Top-Up Primary School
Employment : Ramu Nico Management (MCC) prior to this case
Occupation : Security guard
Health : Diagnosed with TB
Religion : Lutheran

Other aspects of the offender's life

6. Kola James has lived at Mareg Hamlet all his life. He is the only boy in the family and also the first born. He is single at the moment and has no immediate plans to marry. He intends to further his education if opportunities arise once this trouble is behind him. He is at present unemployed and not in a position to pay a hefty fine or compensation. His family and the victim's family (particularly her father) have tried to resolve this matter out of court but things did not work out. Perhaps a court order will move the families towards reconciliation and peace. Both families want a non-custodial sentence considered by the court to allow time for reconciliation. The LLG Ward 18 Member for Ambenob LLG, Mr Lade Kubod, also supports this view as his attempts to get the parties to reconcile have not been successful as everyone is waiting for the court to make its decision.

SUBMISSIONS BY DEFENCE COUNSEL

7. Ms Turi stressed that this was a different sort of case to many Section 229A cases in view of the youthful ages of both the offender and the victim and the presence of consent. She drew the court's attention to another Madang case, The State v Willie Dominic (2005) N2938, where the ages of the offender and victim were similar to here, and there was an element of consent, factors which resulted in a relatively moderate head sentence of four years. The positive presentence report warranted a fully suspended sentence, Ms Turi submitted.

SUBMISSIONS BY THE STATE

8. Mr Collins submitted that though there was a relatively small age gap between the offender and the victim there were aggravating factors that warranted a sentence of five to seven years imprisonment. He submitted that the depositions showed that the offender was intoxicated and that he used force to get apparent, not real, consent from the victim and that he detained her and kept her hidden for a considerable period. I reject those submissions as misconceived. This offender has pleaded guilty to a set of allegations – the short facts – which expressly stated that sex was consensual. He was convicted on that basis. Evidence to the contrary in the depositions cannot be relied on in these circumstances (Saperus Yalibakut v The State (2006) SC890).

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty?
• 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?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. The offence of engaging in an act of sexual penetration with a child under the age of 16 years, without circumstances of aggravation attracts a maximum penalty of 25 years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. 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 a starting point of 12 years.

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

12. I will summarise in the following table some sentences I have imposed.
SENTENCES UNDER SECTION 229A

STEP 4: WHAT IS THE HEAD SENTENCE?

13. The head sentence will reflect the following mitigating and aggravating factors.

14. Mitigating factors:

• no weapon or aggravated violence used against the victim;
• no physical injury to the victim;
• there was consent between the offender and the victim;
• small age gap between offender and victim;
• offender was a young man at the time;
• the offender has caused no further trouble;
• he pleaded guilty;
• he is a first-time offender;
• a good pre-sentence report, showing that the offender has a strong family and community support network;
• both the offender's family and victim's family want to reconcile.
  

15. Aggravating factors are:

• the tender age of the victim;
• the fact that the offender has not co-operated with the justice system in having the matter resolved, resulting in him being arrested seven years after a warrant for his arrest was issued.
  

16. There are more mitigating factors than aggravating factors so a sentence below the starting point is warranted. This case is less serious than most of the cases referred to in view of the ages of the offender and the victim and the presence of consent. I agree with the defence counsel's submission as to the appropriate head sentence. I fix a head sentence of four years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

17. 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 deemed to be two months.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

18. The pre-sentence report recommends suspension on strict conditions as indicated by the victim's father which is also supported by the Ward 18 Member of Ambenob LLG. It is unfortunate that the CBC Office has not obtained a statement from the victim. The offender is the only male in his family and his parents need him to be close to them to support them as they are growing old. The victim's father has highlighted that the offender is related to the family of the victim and some form of reconciliation is necessary to make peace between the two families.

19. This is an unusual case, which comes close to warranting a fully suspended sentence but there are two things that make it unsuitable for that treatment. First, the victim's views are not known to the court. She is the most important person in this case but no one can say what her attitude to the matter is. Secondly, the offender, Kola, has really been on the run from the law (even though he has been staying in the village) for more than seven years. A warrant for his arrest was issued in November 2003, which has only recently been executed.

20. I will suspend half of the sentence only: two years. Some time in custody will reflect the seriousness of the offence and the seriousness of the offender's lack of co-operation with the justice system. He will come out on probation after a moderate time and can then set about the task of reconciliation and get on with the rest of his life.

21. The following conditions will apply to the suspended part of the sentence:

(a) must report to the Probation Office within three days after the date of release from custody;

(b) must participate in a reconciliation ceremony with the victim, supervised and witnessed by the Village Court and the Probation Office, within one month after the date of release from custody, and at the reconciliation ceremony:

• he must give K500.00 cash + foodstuffs to the victim;
  
• the victim's family must contribute 5 chickens + foodstuffs;
  

and, within one week after the reconciliation ceremony, the Probation Office shall provide a report of the reconciliation ceremony to the National Court in Madang;

(c) must reside at his village and nowhere else except with the written approval of the National Court;

(d) must not leave Madang Province without the written approval of the National Court;

(e) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;

(f) must attend his local Church every weekend for service and worship and submit to counselling;

(g) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;

(h) must not consume alcohol or drugs;

(i) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and her family;

(j) must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody;

(k) if he breaches any one or more of the above conditions, shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

22. Kola James, having been convicted of one count of sexual penetration of a child under the age of 16 years contrary to Section 229A(1) of the Criminal Code is subject to the following total sentence:

Sentenced accordingly.
_________________________

Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender