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State v Baero [2014] PGNC 294; N5925 (31 October 2014)

N5925


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO 680 OF 2014


THE STATE


-V-


JOSEPH BAERO


Buka: Kawi-iu, AJ
2014: 22, 24, 31 October


CRIMINAL LAW– Sentence –– Mitigating factors considered – Plea of Guilty – First time offender ––No Expression of remorse - Aggravating factors considered – Close relationship of trust and dependency – Breach of trust - No compensation, reconciliation or personal apology – Head sentence of 15 years less time spent in custody – Balance wholly suspended on conditions - Criminal Code Act Ch. 262, ss 229A (1)(3), 19 .


Cases Cited


The State v Biason Benson Samson (2005) N2799
The State v George Taunde (2005) N2807
The State v Ian Unawing CR No 392/2005, 19.08.05
Jack Mari v The State SCR No. 19 of 2006, 02.03.07
The State v Johnson Roman CR No 1924/2005, 23.03.07
The State v Pennias Mokei CR 596 of 2004 (Unnumbered, unreported)
The State v Peter Lare (2004) N2557
State v Peter Lare (2004) N2557
Stanley Sabiu -v- The State (2007) SC866 (27 June 2007).
The State v Titus Soumi (2005) N2809
State v Tom Angut (2004) N2557


State v Tomas Angut (2005) N2830
The State v Willie Dominic (2005) N2938


Counsel:


J. Waine, for the State
Mr Lugabai, for the accused


SENTENCE


31st October, 2014


  1. KAWI-IU, AJ: You pleaded guilty to a charge that you did on a date in August 2013 at Tarara sexually penetrated one JS a child under the age of 16 years. And at the time you restrained her before the commission of the offence, and immediately after the commission of the offence you used threats and that she was in a relationship of trust, authority and dependence with you. This is an offence under section 229A (1) (2) (3) of the Criminal Code Act Ch. 262 (the Code).

FACTS


  1. The brief facts against you are as follows. The victim was 12 years old at the time of the commission of the offence. She is your step daughter and was living with you at Tarara village at the time. That sometime in the month of August 2013 in the middle of the night when the victim was fast asleep you took off her trousers. When she woke up and tried to scream, you held her mouth tightly to close it and forcefully held her down on the bed hence she could not free herself and escape. Whilst in that position, you forcefully penetrated her vagina with your penis. When you finished, you threatened her saying that her mother and relatives would beat her up if she told them.

ANTECEDENTS


  1. At the time you committed the offence, you were 40 years old. You are married with 3 children age 15, 7 and 2 years. You are a member of the Catholic Faith. You are a subsistence farmer and had been in custody since 30/12/13 (9 months and 20 days). You are a first time offender.

ALLOCUTUS


  1. In your address you told the Court that what you did was wrong. You apologised to the victim and her family. You also apologised to your family. You told the Court that you were tempted and did what you did and promised not to do it again. You apologised to the family of your wife and the community. You apologised to your wife and the three children. You told the Court this is your first time in Court. You asked for Court’s mercy. You told court that you are getting over 40 years now. You finally asked court to consider placing you on probation or GBB.

Submissions on Sentence


Defense Counsel


  1. Your lawyer Mr Kirriwom informed the court that the maximum sentence for your offence is 25 years, subject to court’s discretion under section 19 of the Criminal Code. He submits that factors against you were that the offence was perpetrated on a child of tender age of 12 years. She is your step daughter. That the offence may be akin to one of rape.
  2. However, he urged the court to weigh these factors against those in your favour. These are your plea of guilty, cooperation with the police, expressed genuine remorse, and you are a first time offender. Your lawyer referred me to a couple of cases. Firstly, the case of The State v Pennias Mokei CR 596 of 2004 (Unnumbered & Unreported). In that case His Honour Cannings J. sets out certain considerations as factors in considering appropriate sentences. These considerations will be referred to a little later ( para.32 below).

In approving these considerations the Supreme Court in Stanley Sabiu -v- The State (2007) SC866 (27 June 2007), reiterated that a sentencing judge must take into account all the circumstances of the particular case before him/her when determining the appropriate sentence.


  1. The consideration to be taken as factors in Pennias Mokei (supra) has set the scene for other considerations in other cases. For example in the cases cited below the court have taken into account as factors of aggravation when the child is infected with sexual transmitted disease, or made pregnant. The circumstances referred to above can be taken appropriately as either mitigating or aggravating the offence.
  2. The State v Peter Lare (2004) N2557. In that case the victim was aged 10 years and abused continued until she was 14 years of age. She was the step daughter of the accused. When she revealed these to her relatives she was taken to hospital, and found to be infected with sexual transmitted infection (STI). The STI alone was taken as a factor of aggravation in which accused was sentenced to 20 years imprisonment.
  3. State v Tomas Angut (2005) N2830. In that case the victim was 12 years of age. Sexual acts continued until she was 14 years of age. Accused charged with sexual touching and sexual penetration over the period. Accused was the step daughter of the victim. She was impregnated and became a mother before the age of 15. Her education was cut short as she was expelled from school. Accused was sentenced to 10 years imprisonment.
  4. For your case your lawyer urged the Court to take heed of the following matters which would mitigate your sentence. Your case is a one off incident, no pattern of sexual abuse over a period of time, victim not infected with sexual transmitted infection/sexual transmitted disease, and no aggravated violence caused on the victim.
  5. Your lawyer submits for the court to consider an appropriate sentence which he says to be between 12 – 14 years imprisonment and further submits that court exercise its discretionary power under section 19 of the Criminal Code to suspend part of the sentence.
  6. Finally your lawyer referred to a medical report for a diagnosis of a condition described as epidydimocitis (sic). It is not known for what aspect this document was tendered at this late stage without prior notice to the State. However, State did not raise objection to its tender. As to what the term means is any body’s guess. However without attempting to define the word in its technical or medical meaning suffice to say that it relates generally to a condition affecting the male reproductive system.
  7. In the absence of an explanation of the purpose for tender of the document it could only be assumed that such condition was introduced to sway the court to consider a non custodial sentence, on medical ground.

State’s Submission:


  1. Counsel for the State in his preliminary remarks, says that the penalty for the present offence is a maximum of life imprisonment as the accused was charged under section 229A (2) (3) of the Criminal Code Act.
  2. He says remorse to be considered as genuine must accompany tangible acts on the part of the accused, e.g. payment of compensation. In respect to the medical report he enquired - is the illness life threatening? Victims of rape and all sexual assaults suffer long term traumatic and other psychological insecurities.
  3. Although acknowledging the defence submission in respect to mitigating and aggravating factors, he submits that these factors are to be weighed against other factors. Counsel then refers to the case of Stanley Sabiu -v- The State (2007) SC866 (27 June 2007).
  4. That case involves a child under the age of 12 years (6 years) and a sentence of 17 years imposed by the National Court was upheld on appeal. Appellant had pleaded guilty to sexually penetrating a child under the age of 12 years, contrary to s.229A (2) Criminal Code.
  5. The facts of that case are that - the Appellant had followed the victim, his 6 year-old nephew, into some bushes and forcibly had anal intercourse with him, causing the boy to suffer bruising, bleeding and pain as a consequence.
  6. As to appropriate penalty counsel refer to the case Sabiu (supra) and says that children victim 12 -15 years old starting sentence should be 15 years, to be adjusted up or down depending on mitigating and aggravating factors.
  7. He further submits that that case was decided in 2007 and circumstances have changed during the years thus warranting a starting point of 17 years, adjustable with circumstances of mitigation or aggravation.
  8. In reply defence submits that the State is proposing a quantum leap to 17 years as a starting point. This he submits has no case law in support of the proposition.
  9. The present case he submits is not one of the types that he had earlier referred to that features circumstances of aggravation such as infecting victim with STI/STD, persistent abuse or impregnating the child victim. Thus any consideration on sentence should not be equated with those referred to, but considered on its own circumstances and facts.

THE LAW


  1. The offence of sexual penetration of a child is provided by Section 229A of the Code in the following terms:

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) 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.


SENTENCING TREND


  1. Your lawyer referred court to some cases previously dealt with, similar to your case in considering an appropriate sentence. He referred to the case of The State -v- Pennias Mokei (No: 2) (2004) N2635 in which Cannings J. sentenced the prisoner (33) to 15 years for sexually penetrating his 13 years old niece. It was non consensual, no aggravated violence, an isolated incident; offender cooperated with police, expressed remorse, first time offender and did not attempt to pay compensation.
  2. Other cases dealing with child sex offences involving children between 12 and 16 years for equivalent offences (S. 229A) are considered below.

i) The State v Biason Benson Samson (2005) N2799, Kimbe - Guilty plea – offender aged 17 at time of offence – victim, a girl, aged 13 – lack of consent – no aggravated physical violence – offender cooperated with police – expressed remorse – no compensation attempted – first offender. 5 years


ii) The State v George Taunde (2005) N2807, Buka Guilty plea – offender aged 33 at time of offence – victim, a girl, aged 13 – uncle/niece relationship – lack of consent – no aggravated physical violence – offender cooperated with police – expressed remorse – no compensation attempted – first offender. 10 years


iii) The State v Titus Soumi (2005) N2809, Buka Guilty plea – offender aged 30 at time of offence – victim, a girl, aged 14 – offender married to complainant’s older sister – consensual sex – no physical violence – offender cooperated with police – expressed remorse – no compensation attempted – first offender. 2 years


iv) The State v Willie Dominic (2005) N2938, Madang, Guilty plea – offender aged 17 at time of offence – victim, a girl, aged 14 – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender. 4 years


v) The State v Ian Unawing CR No 392/2005, 19.08.05, Bialla Guilty plea – offender aged 26 at time of offence – victim, a girl, aged 13 – no relationship of trust – offender cooperated with police – expressed remorse – no compensation attempted – first offender.8 years


vi) The State v Johnson Roman CR No 1924/2005, 23.03.07, Kimbe Guilty plea – offender aged 30 at time of offence – victim, a girl, aged 15 – no aggravated physical violence – no relationship of trust – offender cooperated with police – expressed remorse – no compensation attempted – first offender. 5 years


26. In the Supreme Court case of Stanley Sabui v The State (2007) SC 866 (27 June 2007), it referred to other cases National Court has considered and imposed numerous sentences for offences against s.229A since it came into force. (Criminal Code (Sexual Offences and Crimes Against Children) Act 2002).


27. Some of those cases are The State v Peter Lare (2004) N2557 , The State v Pennias Mokei (No 2) (2004) N2635 , The State v Eddie Trosty, (2004) N2681 , The State v Kemai Lumou (2004) N2684 ; The State v Biason Benson Samson (2005) N2799 ; The State v Thomas Angup (2005) N2830 , The State v Binga Thomas (2005) N2828, The State v.Kutetoa (2005) N2807, The State v. Alois CR 236/05 Kokopo, The State v. George Taunde (2005) N2807 , The State v. Ndakum Pu-Uh (2005) N2949 and The State v. Ella Yasu (2007) CR 961/06 Vanimo.


28. Of those cases where the victim was 12 years of age and under, the sentences of imprisonment imposed were 20, 17, 9 and 8 years. In the latter 2 cases the victims were 10 and 12 years of age and the offenders were 18 and 21 years of age. 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.

  1. From the above cases, it can be seen that sentences have ranged from twelve (12) to twenty eight (28) years, the higher sentences being those where there existed relationships of trust authority and dependency.
  2. The Supreme Court said in Stanley Sabui -v- The State (supra) – that Parliament had clearly spoken that sexual penetration of children should be severely punished and that the sexual penetration of children under 12 is more serious hence attracting the maximum penalty of life imprisonment. The Supreme Court there was dealing with an appeal against sentence for a conviction against S.229A of the Code.

APPROPRIATE SENTENCE


  1. The maximum sentence that can be imposed for s. 229A (1) (2) (3) offence is life imprisonment. However, it is well settled law that the maximum penalty is always reserved for the worst category cases. Goli Golu v The State [1979] PNGLR 653. The final sentence to be decided will depend on the peculiar circumstances of each case.
  2. In sentencing offenders for sexual penetration of children generally, the Supreme Court in Stanley Sabui v The State (supra) adopted what Cannings J. considered in The State -v- Pennias Mokei (No: 2) (2004) N2635 and The State v Biason Benson Samson (supra) to be relevant factors. These are –
  3. In approving the above considerations the Supreme Court reiterated that a sentencing judge must take into account all the circumstances of the particular case before him/her when determining the appropriate sentence.
  4. As can be seen from the relevant factors six were recorded as aggravating factors, [one neutral and nine mitigating factors]. The age of the prisoner is 40 years and victim 12 years, age difference of 28 years, no consent, existing relationship of trust, dependency or authority a relationship of stepdaughter, no compensation or apology to victim or relatives, not a youthful offender.
  5. In mitigation the the prisoner pleaded guilty to the charge and made early admissions as evidenced from the record of interview. He also co-operated with police. He is a first time offender, not cause further trouble since the arrest, did not use force or violence on the victim, surrendered and cooperated with the police. He did not impregnate the victim nor did he infect her with any sexual transmitted infection (STI).
  6. Sexual abuse of children, particularly girls, in whatever form or manner, is a scourge to the society that must be arrested and stiff punitive sentences should be visited upon perpetrators most of whom are adult men, who invariably, are known to the victims and some of whom stand in positions of trust, dependency and authority.
  7. So with the above considerations, on the authorities cited above I feel that a starting point for the prisoner in these circumstances should be 15 years.
  8. A case similar to yours is that of Jack Mari v The State (supra). The brief facts are that on the evening of 9 July 2003 accused and his family were at Polomo village and having dinner in the evening. After dinner he told the victim to go into the room to sleep. He then followed her into the room, and had sexual intercourse with her in the room. The State says that at that time the victim was 14 years of age and the victim was his stepdaughter, the child of his wife. He pleaded guilty, mature age offender, 14 years old girl, father/stepdaughter relationship. Supreme Court on review of sentence reduced original sentence of 20 years to 15 years.
  9. The prisoner submitted through his counsel that a sentence between 12-14 years be imposed on the prisoner.
  10. However each case has to be considered on its own merits so that an appropriate sentence can be imposed that will address the conflicting interest of the parties involve – the offender, the State and the victim.
  11. Defence address on sentence proposed a sentence range of 12 – 14 years, whilst the State proposed a starting point of 17 years.
  12. The sentence for this offence with circumstances of aggravation is life imprisonment. It is the Parliament acting for the law abiding citizens to punish those who violate its laws in this case sexual molestation of young children from all forms of sexual degradation and to severely punish those who want to satisfy their sexual desires on unsuspecting children who are like lamb led to the slaughter. It is only at the slaughter table where the lamb will experienced the suffering that it had no power to resist in the first place. To a child the long term psychological trauma will reverberated throughout his or her entire life.
  13. The state through its many agencies like courts will only do their best within the confine of their judicial powers to cushion the surge to this heinous crime and others, but experience has shown that the eradication of the mischief will not disappear for we are not dealing with the tangible but intangible that is the conscience/mind of a person for there is no mortal who can tame it. Simply stated human lust is personal, court can only try to minimise its preponderance. Thus sentencing principals are geared to this end.
  14. For this and other sexual offences perpetrated on young children and women folks despite the many sentences the crime seems to to be on the rise.
  15. There is one significant feature of this case that counsels have overlooked. And that is the fact that there is no evidence before the court on the age of the victim. The accused is described as a child under the age of 16 as per the charge on the Indictment. However the brief statement of fact upon which the prisoner pleaded guilty on says that the child/victim was 12 years old, thus the charge under s.229A (2) would be in conflict with the facts. Simply put the indictment charges "child under the age of 16 years" whilst the Statement of Facts says "child is 12 years" as opposed to "under the age of 12 years" (s.229A (2).
  16. The effect of such anomaly reflect much on the penalty, i.e. if the child is 12 years and not under 12 years the penalty is 25 years for by operation of s. 229A (1) she would be a child under the age of 16 years which attracts a penalty of 25 years and not life had she been under the age of 12 years (s. 229A (2).
  17. However on reading sub-section (3) of S.229A the Facts revealed an existing relationship, authority and dependency. Thus the penalty envisaged by the State i.e. life imprisonment will still be available under this provision.
  18. After taking into account the aggravating and mitigating factors I am of the opinion that some form of retribution will suffice to deter the offenders from taking advantage of innocent and unsuspecting children to satisfy their crave for human lusts of this prevalent crime.
  19. Counsel for the prisoner proposed a sentence of between 12 -14 years whilst the State had proposed a head sentence of 17 years citing the case of Stanley Sabiu as the authority. The case of Sabiu concern acts more aggravating then the case at hand.
  20. After taking into account factors in considering sentence in The State -v- Pennias Mokei (No: 2) (supra) and The State -v- Biason Benson Samson (supra), Jack Mari v State (supra) and further considering mitigating and aggravating factors conclude that there is not much difference between factors favouring the accused and those against him. This offence or to be more generic sex offences are on the rise and there is no sign of slowing down not only here in Buka but elsewhere in PNG. Thus in the circumstances I consider that an appropriate penalty will be imprisonment. The head sentence shall be 12 years.
  21. And in the exercise of my discretion I will consider suspending part of the sentence.
  22. The prisoner is therefore sentenced as follows:
    1. The prisoner is sentenced to 12 years imprisonment.
    2. Ten (10) months shall be deducted for pre-sentence custody period
    3. The resultant sentence therefore is 11 years, 2 months
    4. The prisoner shall serve 6 years of his sentence at the Buka Corrective Institution.
    5. The balance of 5 years, 2 months is suspended on the condition that the prisoner shall enter into his own recognizance to be of good behaviour for the whole period of the suspended sentence.
    6. In the event that the Prisoner breaches his recognizance, the said recognizance shall be forfeited and he shall be committed to prison at Buka to serve the balance of his suspended sentence.

Sentenced accordingly
__________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner

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