N5521

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 884 OF 2013

THE STATE

-v-

MACY SIGEGE

Popondetta:	Toliken AJ
2014 : 	18th, 21st February

CRIMINAL LAW – Sentence - Sexual penetration of a girl under the age of 12 years – Digital Penetration of girl aged 3 years and 11 months by 16 year old man – Relationship of trust, authority or dependency – Guilty plea - Aggravating and mitigating factors considered – Different modes or means of penetration and likely consequences on victim considered – Mode of penetration and consequence may mitigate or aggravate offence - Appropriate sentence – 11 years less pre-sentence custody period – Partial suspension with conditions – Criminal Code Act Ch. 262, s 229A (2)(3). 

Case cited

Golu Goli –v- The State [1979]) PNGLR 653
Ure Hane –v- The State [1983] PNGLR 105
Don Hale –v- The State (1998) SC564
Stanley Sabiu –v- The State (2007) SC866
The State v Biason Benson Samson (2005) N2799 
The State –v- Pennias Mokei (No 2) (2004) N2655
The State –v- Matanu (2012) N4891 
The State –v- Kemo Wanaisu (2013) N5285
The State –v- Stanley Sabiu (2005) N3659
The State –v- Tiama Esrom (2006) N3054 
The State –v- Hela (2012) N4788
The State –v- John Kariva, CR No. 252 (No.2) of 2007 (Unreported and unnumbered judgment dated 17th September 2013) 
Manu Kovi v The State (2005) Sc 789
The State –v- Billy Paulo (2013) N5286 

Counsel

J Waine, for the State
P Palek, for the Prisoner

JUDGMENT ON SENTENCE

21st February, 2014

1. TOLIKEN, AJ. Macy Sigege, on 17th of February 2014 you pleaded guilty to an indictment charging you with one count of sexual penetration of a child under the age of 12 years and at the relevant time a relationship of trust, authority and dependency existed between you and the victim. This is an offence against Section 229 A (2)(3) of the Criminal Code Act Chapter 262. The charge was that –

"… on the 18th of December 2012, at Popondetta, in Papua New Guinea,  [you] engaged in one act of sexual penetration with JENITA ABRAHAM a child under the age of 12 years AND that JENITA ABRAHAM was then in a relationship of trust, authority and dependencies with [you]." (sic)

3. The brief facts put to you for the purpose of arraignment are that on the 18th day of December 2012, the victim Jenita Abraham, a child of 3 years and 11 months at that time, was with her mother in the village of Kiorota here in Popondetta. You called out to the child to come to you. And when she did you asked her to follow you to the store so that you would buy her some biscuits. However, instead of going to the store you took her into the nearby bushes and there sexually penetrated her several times using your fingers.

4. I confirmed your plea after satisfying myself that the Committal Court depositions supported both the charge and your plea. I then convicted you.

5. The offence you pleaded guilty to is provided by Section 229A of the Code in the following terms –

229 A. Sexual penetration of a child

(1)	A person who engages in an act of 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

(2)	If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3)	 If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

6. So as we can see, the offence of sexually penetrating a child is a very serious one. If the child is between 12 years and 16 years the penalty is 25 years imprisonment. However, if the child is under 12 years, the offender is liable to imprisonment for life. If there is an existing relationship of trust, authority or dependency between the child and the offender, regardless of whether she is under 16 years or under 12 years, an offender is also liable to imprisonment for life.

7. What constitutes a relationship of trust, authority or dependency is defined by Section 6A of the Code as follows –

6A. Relationship of trust, authority or dependency

(1) …

(2) A relationship of trust, authority or dependency includes, but is not limited to circumstances where –

(a)	the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b)	the accused has care or custody of the complainant; or

(c)	the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d)	the accused is a school teacher and the complainant is his pupil; or

(e)	 the accused is a religious instructor to the complainant; or

(f)	the accused is a counselor or a youth worker acting in his professional capacity; or

(g)	the accused is a health care professional and the complainant is his patient; or

(h)	the accused is a police or prison officer and the complainant is in his care and control.

8. The very stiff penalties for sexual abuse of children, particularly against those who stand in positions of trust or where the child is under 12 years is a clear reflection of how society, through Parliament, views this abhorrent, defiling and destructive behavior against the most venerable members of our society. Children have the right to be cared for and protected and not abused by adult members of our society. The penalty against abuse of trust reinforces the moral duty that those standing in such positions have to those under them is perhaps justified also by the fact that the great majority of abuse arises in the domestic setting and perpetrators are on the most part people who are known to the victims such as parents and other close relatives.

10. Sexual abuse includes not only sexual penetration of child but also sexual touching without penetration. These offences carry different penalties which again reflect the relative seriousness of those types of abuse. Hence while sexual penetration carries the maximum penalty of 25 years and life imprisonment sexual touching carries a lesser penalty of 12 years (s 229B of the Code). So how have the Courts treated offenders in sexual penetration cases against children?

11. First the Supreme Court in Stanley Sabiu –v- The State (2007) SC866 where the appellant had appealed against a sentence of 17 years imposed on him for sexually penetrating (anal) his 6 years old nephew, in dismissing the appeal set the starting point for sexual penetration of a child under the age of 12 years at 15 years.

12. The Supreme Court further approved certain considerations enunciated by Cannings J. in the State –v- Biason Benson Samson (2005) N2799 and The State –v- Pennias Mokei (No 2) (2004) N2655 as useful sentencing guidelines. These include the age difference between the accused and the victim, how far below the age of consent the victim was, whether there was only one offender, whether the offence was aggravated by use of threats or of weapons, whether the victim suffered physical injury or sexually transmitted infection, whether there was a relationship of trust, authority or dependency, whether it was an isolated incident, whether the offender co-operated with the police, whether he pleaded guilty, whether he gave himself up and co-operated with investigations, whether offender has paid compensation and reconciled with the victim, whether he has shown remorse, whether he is a first-time offender and whether he is a youthful offender or has some other personal circumstances that can mitigate his offence.

13. The considerations remain very much relevant but perhaps a further consideration should be whether the act of penetration was penile or digital. In other words did the offender penetrate the victim by using his penis or by using his fingers or other objects? Depending on the circumstances of each case the mode or means of penetration will either mitigate or aggravate the offence taking into consideration whether or not any injuries or other harmful consequences were suffered by the victim.

14. Let me now consider a few cases to see what the sentencing trend had been in the recent past. Some of these were referred to me by the lawyers in their submissions.

15. The State –v- Matanu (2012) N4891. The offender there, a serving policeman pleaded guilty to one count of sexually penetrating a 12 year girl using his fingers. He was sentenced to 13 years of which 7 years were suspended.

16. The State –v- Kemo Wanaisu (2013) N5285. The prisoner there pleaded guilty before me in Alotau for one count of sexually penetrating (penile) the victim, then 13 years of age. The prisoner was youthful and amongst other mitigating factors was a first time offender, unsophisticated and illiterate and expressed remorse. His offence was aggravated by the fact that he used force and that the offence is becoming very prevalent. I sentenced him to 12 years imprisonment.

17. Apart from these Mr. Palek also urged me to consider The State –v- Stanley Sabiu (2005) N3659, The State –v- Tiama Esrom (2006) N3054 and The State –v- Hela (2012) N4788. These were all cases of penile penetration of victims ranging from 6 years, 9 years, 12 years and which cases respectively attracted sentences of 17 years, 12 years and 18 years.

18.	Mr. Waine also referred me to The State –v- John Kariva, CR No. 252 (No.2) of 2007 (Unreported and unnumbered judgment dated 17th September 2013) a matter I heard here in Popondetta. This was, however, a case of persistent sexual abuse albeit by sexual penetration of a girl by her biological father. He also referred to The State v Biason Benson Samson (supra) where the offender (aged 17 years) was sentenced to 5 years for penetrating the 13 year old victim. There was no relationship of trust or authority there. 

19. Now to say the least these latter cases bear no similarity to the present case. My search for similar cases i.e. digital penetration yielded no result so as it stands unfortunately the only matter that bears direct relevance to your case is The State –v- Matanu (supra).

20. Let me now turn to your case. In your address to the Court you apologized for what you did. In particular you apologized to your family, your neighbours, the Holy Trinity and to the Court. You then pleaded for mercy.

21. Mr. Palek in his written submission submitted among other things that you and the victim are related in that you and her mother are first cousins – their fathers being blood brothers. Hence the victim is your niece and it follows that you are therefore in a position of trust, authority and dependency towards the victim.

22. Mr. Palek submitted that you are a youthful offender and you were 16 years at the time you committed the offence. There is, he said an age difference of 13 years between you two. Counsel submitted that unlike most of the cases that he cited, you fondled with the victim's vagina and then eventually penetrated her with your fingers thus bringing your case closer to The State v Matanu (supra). 

23. Counsel cited several mitigating factors in your favour, among which are the following; you entered an early guilty plea,	you have no prior convictions, you're a youthful offender, you're illiterate, you come from a good family back ground, were of previous; good character and are a faithful member of the Renewal Revival Church, you cooperated with the police and made early admission, you expressed remorse and the victim did not suffer any injuries or contracted an STI nor did she get pregnant. Counsel, however, concedes that at least two aggravating factors operate against you. These are the existence of a relationship of trust, authority or dependency between you and the victim and that the offence is prevalent.

24. Mr. Palek therefore submitted that an appropriate sentence for you should be 10-15 years less time spent in pre-sentence custody. Counsel further submitted that the Court may then consider suspending part of the sentence.

25. Mr. Waine on the other hand submitted on behalf of the State that any sexual offence against children should be treated as rape and sentences should reflect the increasing prevalence of these types of offences and the circumstances in 2013 (2012?) when this offence was committed. Counsel urged the Court to impose a sentence which is higher than that which I imposed on John Kariva (supra) i.e. 23 years.

26. While he acknowledged that the Supreme Court in Stanley Sabiu –v- The State (supra) had set the starting point for this type of offence i.e. sexual penetration of children under 12 years at 15 years, Counsel submitted strongly that threshold should now be increased to 18 years given the ever-increasing incidence of this crime and the fact that Stanley Sabiu was decided some 7 years ago.

27. Mr. Waine acknowledged that there are mitigating factors in your favour. He, however, countered Mr. Palek's submission that the victim did not suffer any injuries. He said the Medical Report shows to the contrary that she sustained injury to her vagina. Mr. Waine submitted that there are other aggravating factors against you. These are that the victim is a blood relative of yours hence the existence of a relationships of trust, authority or dependency between you twos, the child is of very tender age and would have also suffered trauma and psychological harm.

28. Finally while conceding that this is not the worst instance of this type of offence, Counsel nonetheless submitted that a starting point for your crime should be 18 years.

29. Now let me go briefly to your personal particulars. You are about 17 years of age and are married with two small children. You are the second born in a family of five children. Your parents are still alive and you have never gone to school. You are a member of the Renewal Revival Church. You are a simple villager and this is your first offence.

30. In regard to your offence I find the following mitigating factors in your favour – 

•	you pleaded guilty to the charge very early and this saved time and money for the State. Furthermore you saved the victim further trauma if the matter were to have gone to trial. Not only did you make an early guilty plea, you admitted your offence to the police from the very outset.
•	you're a first time offender
•	you're a youthful offender, in fact were a juvenile at the time you committed the offence and still are if we are to accept that you're about 17 years old now 
•	you co-operated well with the police
•	you're an illiterate and a simple villager
•	you were of previous good character
•	you have expressed some remorse
•	the victim did not contract an STI or get pregnant.

31. However, against you are the following aggravating factors –

•	there is an age difference of 13 years between you and the victim
•	the victim was of the tender age of 3 years and 11 months – a mere toddler
•	you stood in a close relationship of trust, authority and dependency with the victim
•	the medical report does show that the child suffered some injury. These being – 

(i)	ruptured hymen
(ii)	swelling/redness around and inside the vagina
(iii)	1 cm laceration with blood clots outside the labia minora
(iv)	pain on both thigh bones
(v)	pain on her private parts.

So contrary to your lawyer's submission the victim did suffer physically and it should go without saying that she would have been traumatized and suffered emotionally and psychologically as well.

32. What then would be an appropriate sentence for you? Before I venture into that I need to decide if your case falls under the worst instance of this type of offence hence deserving of the maximum penalty of life imprisonment.

33. It is accepted and settled in this jurisdiction that the maximum penalty for any offence is always reserved for the worst instance of the offence and that despite what sentences have been imposed in other cases, each case is always decided on its own merits and peculiar facts. (Golu Goli –v- The State [1979]) PNGLR 653, Ure Hane –v- The State [1983] PNGLR 105. So are the circumstances of your case such that it must attract the maximum penalty?

34. I agree with both your lawyer and the State that yours cannot be categorized as being among the worst. If anything it would fall somewhere below the starting point set in Stanley Sabiu v The State (supra). And I say this advisedly given the fact that Supreme Court had set the starting point for your kind of offence at 15 years, because of the need to protect children and especially those under 12 years such as your victim from abuse and sexual exploitation by preying men - old, young or even juveniles like you. Starting points in sentencing are a reference point and not the actual sentence. These are points from which the sentencing court or judge starts from in deciding an actual sentence. The court can either impose a head sentence below or above the starting point depending on the peculiar circumstances of each case.

35. In setting 15 years as the starting point, I do not think that the Supreme Court was setting an inflexible threshold though nor do I think – with due respect - that it adverted its mind to different ways or means by which a child can be sexually penetrated. While the purpose of penetration might be the same - sexual gratification - the means or object of penetration can be different. It may be penile or digital or by other objects or body parts and this may have a varying degree of consequences. For instance penile penetration or an act of cunnilingus – quite apart from physical injury and trauma that often would invariably accompany the act – may result in pregnancy and/or transmission of Sexually Transmitted Infections including AIDS or genital thrush (candida albicans) or other yeast borne infection. On the other hand these will not result from an act of digital penetration. And I am here not saying that the latter should be treated as any less serious. Far from it! All types and means by which a child can be penetrated are serious otherwise parliament would not have expanded the meaning of "penetrating" to include penetration by other body parts or objects of its definition of the term under Section 6 of the Code through the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No 27 of 2002), s2. All I am saying is that some distinction should be had as to the means by which a child is penetrated so that sentences in each particular case should fit the circumstances and consequences of the offence that flow there from as is trite law. 

36.	But having said that I hasten to say that acts of digital penetration are not less serious, per se. This is because the injuries caused to a victim's genitals may be very serious as in the case of vigorous and forceful penetration intended to cause pain and injury. Penetration with objects such as bottles or rough objects which are known to have been used by some male perpetrators can cause grievous bodily harm to victims. Hence, every case must be seen in the light of its own facts and sentences must reflect them appropriately. 

37. Mr. Waine argued quite forcefully that the starting point set in Stanley Sabiu should now be increased to 18 years because of the prevalence of the offence. And of course according to him this must begin with your case. I am not sure I can buy into that given the fact that this is by no means such a case by which such a leap - even if not a quantum leap - could be taken. I will not take the invitation. The starting point set in Stanley Sabiu should stand otherwise this will bring the tariffs for these types of offences well above category 2 of the Manu Kovi tariffs (Manu Kovi v The State (2005) Sc 789) for murder which, comparatively is a more serious offence. This is not to say that sentences for sexual penetration of children cannot reach such a range for indeed some have as in the case of John Kariva (supra) (23 years) and The State –v- Billy Paulo (2013) N5286 (20 years), cases which I have decided. Those were cases of persistent sexual abuse by fathers of their biological daughters in the most base and gross of circumstances.

38. In this case you sexually penetrated your victim with your fingers and not your penis. Despite that the victim did suffer injuries to her vagina causing her to bleed. You ruptured her hymen which medical knowledge says can only be ruptured by an object as large as an average size penis. The ruptured hymen indicates that some larger than normal force was used or that more than one finger was inserted into the victim's vagina during the act. There is a huge age difference of 13 years between the two of you and she is about 13 years below the age of consent. You abused the trust she had in you as her uncle. You lured her into believing that you will take her to the store to buy some biscuits but instead you took her to the bushes and you defiled her. You gave no reason at all why you did this horrendous act on an innocent child.

39. While you apologized to everybody else and seemed outwardly remorseful I did not hear you apologize to the victim nor was I told that you have done anything tangible to show your remorse or that you have reconciled with the victim and her nuclear family and of course the extended family. 

40. This child looked upon you as an uncle who would protect and care for her like any good uncle would. She did not expect to be violated by your ravaging fingers. She, like every innocent child, does not expect to be the object of sexual gratification.

41. So relying on the authority of Stanley Sabiu I set the starting point for your case at 15 years. However, I feel compelled to make some deductions because of your early plea, that you're illiterate and a juvenile at the time you committed your offence and still are despite the fact that you are now married at 17 years of age. Also the fact that you digitally penetrated her as opposed to penile penetration should also be considered on your favour but this must be weighed against the injuries that the victim suffered. This is not to say that digital penetration can be excused or should lessen the gravity of your offence. Whether it does or not depends on the injuries or other consequences brought upon the victim as I have said above.

42. The above considerations distinguish your case from that of Matanu (Supra) who got a 13 years sentence for penetrating his victim with his fingers. Matanu was an adult and was a serving policeman.

43. Therefore in the circumstances I feel that an appropriate head sentence for you should be 11 years. I therefore sentence you to 11 years imprisonment, less the 4 months you spent in pre-sentence custody. That should leave us with a resultant sentence of 10 years and 8 months. 

44. In sentencing you to 11 years I am fully aware of the duty imposed on me towards you as a juvenile and that sentencing you to a period that long can be very detrimental to you. However, the message must be sent out to you and likeminded persons is that sexual abuse of children cannot be tolerated. Long sentences such as yours must serve primarily to punish perpetrators like you and secondly to deter you personally and others as well.

45. Your lawyer asked the Court to consider suspending your sentence. The State did not say anything on that and therefore I can safely infer that they have no objection. There is no question that the Court has the power to suspend a sentence under Section 19 of the Code. However, Supreme Court authority has it that a suspension may only be made if there is a favourable Pre-Sentence Report (PSR) which shows community support for suspension and a willingness to assist in supervising or rehabilitating you (Don Hale –v- The State (1998) SC564. There is no such PSR before me but because of your relatively young age (despite the fact that you're married) coupled with your other mitigating factors, justice demands that I should suspend at least a portion of your sentence. This will allow you to at least get back on the right track when you get out of prison.

46. I therefore order that you shall serve 4 years only of your resultant sentence of 10 years and 8 months at Biru Corrective Institution. The balance of 6 years and 8 months is suspended on the condition that you will enter into your own recognizance to be of good behavior for the whole period of the suspended portion of your sentence. If you breach your good behavior bond you will be arrested and imprisoned for the balance of your sentence.

Sentenced accordingly.

Public Prosecutor:  Lawyer for the State
Public Solicitor:  Lawyer for the Prisoner