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State v Wanaisu [2013] PGNC 130; N5284 (24 May 2013)

N5284

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 172 OF 2012

THE STATE

V

KEMO WANAISU

Alotau: Toliken, AJ
2013: 13st & 14th March
24th May

CRIMINAL LAW – Sentence – Sexual penetration of a girl under 16 years – Plea – Accused grabbed 13 year old victim in the bush and sexually penetrated her against her will - No circumstances of aggravation alleged in indictment –Prisoner a youthful offender – Remorseful – Unsophisticated and illiterate – Orphaned at young age – No family support and guidance – First time offender - Prevalent offence – Need for personal and public deterrence – Head Sentence of 12 years less pre-sentence period – Criminal Code Ch. 262, s 229A(1).

Cases Cited

The State v Pupuka (2001) N3184
The State v Penias Mokai (No.2) (2004) N2635
The State v Benson Benson Samson (2005) N2799
Chris Awin v The State, SCR 55 of 2005
The State v Kutetoa (2005) N284
The State v Stanley Sabiu (2005) N3659
The State v Thomas Agaup (2005) N2830
The State v Esrom Tianu (2006) N3054
Joe Nawa v The State SCR No. 16 of 2006
Sabiu v The State (2007) SC 866
The State v Brown Kawage (2009) N3696
The State v Hela (2012) N4788
The State v Matanu (2012) N4891

Counsel

R. Auka, for the State
M. Arua, for the accused

SENTENCE

24th May, 2013

1. TOLIKEN, AJ: The accused pleaded guilty to one count of sexual penetration of a girl under the age of 16 years contrary to Section 229A (1) of the Criminal Code Act Chapter 262 (as amended to date). The victim was 13 years of age.

BRIEF FACTS

2. The brief facts of the case are as follows. On 21st day of November 2009, the victim, Maggie Maduma was returning to the village from the bush after collecting firewood for her grandmother when the accused confronted her. He hit her on the head and punched her in the face knocking her to the ground.

3. He then grabbed her by her hair and dragged her down to a river amidst the victim's pleas for him to stop. There, he removed her "T" Shirt and skirt, pushed her roughly to the ground and then sexually penetrated her by inserting his penis into her vagina. The victim felt great pain and was crying and bleeding from her vagina.

6. After penetrating the victim, he told her not to tell anyone. He threatened to kill her if she did. However, the victim walked home and reported the matter to her parents. They reported the matter to the police and the prisoner was subsequently arrested and charged.

7. I entered a provisional plea of guilty which I confirmed after I had satisfied myself from the District Court's Depositions that the evidence supported both the plea and the charge. I then convicted the prisoner.

ANTECEDENTS

8. The State alleged no priors against the prisoner.

ADDRESSES ON SENTENCE

9. On allocutus, the prisoner apologized for what he had done to the victim. He apologized to her parents and the community. He also apologized to God and to the Court.

10. Mr Kalandi for the prisoner, submitted among other things that the offence, while is serious have no aggravating circumstances. He pointed the Court to factors which he said mitigated the offence and asked for a sentence between 10 – 17 years less the period spent in custody awaiting trial.

11. Mr Auka for the State, on the other hand, submitted that while the prisoner was youthful, he acted like an adult. He said there are aggravating factors present in this case including the prevalence of the offence in recent times. Counsel conceded that an appropriate sentence would be in the range submitted by the defense.

12. Both Counsel cited authorities which I am grateful for to assist the Court in arriving at an appropriate sentence.

ISSUE

13. So, the issue before me then is – What is an appropriate sentence for the prisoner?

THE LAW

14. The offence of sexual penetration of a child under 16 years is provided by Section 229A of the Code 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 subsection (2) and (3), imprisonment for a term not exceeding 25 years.

(2) ...

(3) ...

15. The offence under consideration, among other offences under PART IV – DIV.2A – Sexual offences Against Children, was created by Parliament through the Criminal Code (Sexual Offences Crimes Against Children) Act 2002. This amendment to the Code was Parliament's response to the increasing level of sexual abuse on our children. These amendments brought about heavy penalties which included life imprisonment in the worst of case.

16. For instance, these amendments imposed upon people in positions of trust such as parents a heavy duty to protect children under their care, and provided heavy penalties for breach of that trust. But even for people who are not in positions of trust, the penalties are indeed heavy as seen from the penalty for the offence under enquiry i.e. imprisonment for a term not exceeding 25 years. The sentence can, however, increase to life imprisonment if the child victim is under the age of 12 years or there is in existence a position of trust, authority or dependency (Sub-sections (2) and (3) of Section 229A).

17. So, how have the Court responded to the people's decree through Parliament?

18. Let us consider a few cases some of which were cited by counsel to the Court.

SENTENCING TREND

19. In The State v Thomas Agaup (2005) N2830, the prisoner was convicted for sexual penetration of a child under Section 229A (1) (2 counts). Section 229A(2) (1 count) and for one count of sexual touching under Section 229B. He was sentenced to a total concurrent sentence of 20 years.

20. In The State v Pupuka (2001) N3184, a case heard here in Alotau, the prisoner sexually penetrated a 7 year old boy through his anus. He was sentenced to 10 years imprisonment on a plea of guilty. Five years of the sentence were suspended with conditions.

21. In The State v Esrom Tianu (2006) N3054, the prisoner pleaded guilty to sexually penetrating a 9 year old girl, an offence that was aggravated by an existing relationship of trust, authority and dependency. The prisoner was between 50 – 60 years old. He was sentenced to 12 years, two of which were suspended with conditions.

22. In The State v Stanley Sabiu (2005) N3659, the prisoner anally penetrated his 6 year old nephew. He was sentenced to 17 years imprisonment. He subsequently appealed against the sentence but the Supreme Court dismissed the appeal and affirmed the sentence. (Sabiu v The State 2007) SC 866).

23. In Chris Awin v The State SCR 55 of 2005, 29th June 2007, 28th August 2008, the appellant appealed against his 25 years sentence. The Supreme Court allowed the appeal and reduced the sentence to 18 years.

24. In Joe Nawa v The State SCR No. 16 of 2006, the prisoner was sentenced by the National Court to 20 years for sexually penetrating a 7 year old girl. The Supreme Court reduced the sentence to 17 years.

25. In Stanley Sabiu v The State (supra), the Supreme Court adopted and approved what Cannings, J. Considered in The State v Pennias Mokei (No.2) (2004) N2635 and The State v Biason Benson Samson (2005) N2799 to be relevant factor to take into account when sentencing offenders for crimes against children. These factors include among others, the age difference between the offender and child, the age of the child and how far below the age of consent was, whether there was consent, whether threats, weapons or aggravated violence was used, whether victim was impregnated or contracted STI, whether there was an existing relationship of trust, dependency and authority, plea, whether offender paid compensation, apologised or reconciled with victim etc.

26. In The State v Kutetoa (2005) N284, the prisoner pleaded guilty to sexually penetrating his step-daughter who was under 16 years. He was sentenced to 17 years.

27. In The State v Brown Kawage (2009) N3696, the prisoner (24 years old), pleaded guilty to sexually penetrating a 14 year old girl. Prisoner assaulted the victim and confined her before and after the incident. Here was also an existing relationship of trust, dependency and authority. He was sentenced to 14 years.

28. In The State v Hela (2012) N4788, the prisoner was sentenced on plea to a convenient sentence of 18 years for 4 counts of sexual penetration – 2 counts for penetrating the child victim's mouth and 2 counts for penetrating his anus. There was an existing relationship of trust, dependency and authority.

29. In The State v Matanu (2012) N4891, the prisoner, a police man, pleaded guilty to one count of sexually penetrating a 12 year old girl with his fingers. He was sentenced to 13 years of which 7 years were suspended on conditions.

THE PRESENT CASE

30. When determining what ought to be an appropriate sentence for the prisoner in this case, I have taken into account firstly the mitigating factors. These are:

1. He pleaded guilty to the charge.
2. He is a first time offender.
3. He co-operated with the police and made early admission.
4. He expressed remorse.
5. He is unsophisticated and illiterate.
6. He seemed to have had a life without family support and guidance as both parents are deceased.
7. The offence was not pre- meditated.
8. He is a youthful offender.
   

31. Against him are, however, the following aggravating factors:

1. He used force and assaulted the victim before he sexually penetrated her.
2. The offence is prevalent in the province.
   

32. So, what is an appropriate sentence for him?

33. The circumstances of the case indicate that this is not the worst offence of this type. Hence, it should not attract the maximum penalty which in this case is 25 years and not life imprisonment as no circumstances of aggravation were pleaded in the indictment.

34. Nevertheless, every instance of sexual penetration of a child is serious and must be treated as such by a sentencing court, in order to give effect to the clear intention of Parliament that this type of offence must be met with severe punishment for the protection of our children from predators like the prisoner in this case.

35. This case should, however, be treated on its own merits and circumstances as is trite law on this jurisdiction.

36. Hence, it can be easily distinguished from the majority of cases cited above by the fact that most of those cases had an element of aggravation, mostly the existence of a relationship of trust, dependency and authority.

37. The circumstances of this case seem, however, to fit with those of Brown Kawage (supra) though the aggravating factors in that case were much greater. There, the prisoner was sentenced to 14 years.

38. It also bears some similarities with Matanu (supra), though that was a case of digital penetration by an adult person who was a policeman. That case attracted 13 years.

39. Hence, in the circumstances, I feel that a starting point in this matter should be 13 years. And in consideration of the prisoner mitigating factors which significantly reduced the gravity of his offence, I fix a head sentence of 12 years.

40. For a young man, this is a heavy sentence. However, the message has to be drummed into the heads of men, young and old, who abuse young girls (and women for that matter) that this type of behaviour is degrading of our children and women-folk and must be condemned appropriately with stiff punitive as well as deterrent sentences.

41. Our women and girls have the right to walk around freely in our villages, towns and cities without the fear of being sexually abused by men and boys who on the most part have no respect for the dignity and freedoms of our women-folk.

42. So, the prisoner in this matter will lose a good part of his life to incarceration but that is the price for not respecting the rights of others and abusing one's own freedom.

43. I, therefore, sentence the prisoner to 12 years imprisonment.

44. The prisoner was arrested on 25/6/11 so he has been in custody for a period of 2 years. Hence, two years is deducted from the head sentence being a resultant sentence of 10 years. None will be suspended.

ORDERS

45. The prisoner is therefore sentenced as follow:

46. Ordered accordingly.

___________________________________
Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the accused