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State v Hatoga [2014] PGNC 371; N6845 (26 September 2014)

N6845

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 207 of 2014

THE STATE

v

EDWARD HATOGA

Buka: Injia, CJ
2014: 25^th & 26^th September

CRIMINAL LAW- Sentence- Sexual offence - Sexual penetration of girl under 12 years- Victim mute and deaf - Provisional conviction following guilty plea- Safeness of conviction based on unsworn statement of victim - Conviction confirmed- Need for punitive and deterrent sentence- Appropriate sentence - 13 years imprisonment- Criminal Code , 229A (1)(a) and (2)

Counsel:

P Kaluwin, for the State
F Pitpit with Lungabai, for the Prisoner

26th September, 2014

1. INJIA, CJ: The prisoner pleaded guilty to one count of sexual penetration under s 347 with circumstances of aggravation under s 349(a) & (g) the Criminal Code. The circumstances of aggravation are that the victim, a young girl, was under disability in that she was a mute person and that the offence was committed in the company of two other persons. The offence with those circumstances of aggravation carries a maximum sentence of,subject to s19, imprisonment for life.

Facts

2. The facts in brief as I extract from the material before me are as follows. In the early hours of the night of 9 April 2013 at Binasoa village, the victim was washing on the beach. The prisoner and his two accomplices observed her from a distance. The other two accomplices approached her first, swam next to her and touched her against her will. She escaped to some distance away and was followed by one of the men who pulled her and took her to the reef some distance away from where she was swimming. There the three men took turns to have sexual intercourse with the victim. She resisted them but she was overpowered by them. The prisoner was the first to have sex assisted by the other two who held her down. The other two then took turns to have sex with her. Later that evening she reported the matter to her mother who in turn reported the matter to police.

Principles of sentencing

3. Sexual penetration is amongst a series of sexual offences that is prevalent in this region and in this country. A custodial sentence from a starting point of 8 years imprisonment is usually imposed to reflect the seriousness and prevalence of the offence. This starting point was suggested by the Supreme Court in John Aubuku's case which was decided in 1987 some 26 years ago in the 20^th century. In cases decided in the 21^st century, the Courts have recognized the need to increase the starting point suggested in John Aubuku's case.

4. The maximum punishment of course is reserved for the worst case of its kind. The appropriate sentence to be imposed in a particular case depends on the facts of each case. In sexual offences involving women and children, it is always imperative to approach the exercise of sentencing discretion against a backdrop of the basic premise that women and small children in the community are in need of protection from offenders. The imposition of a firm custodial sentence, as a starting point much higher than the 8 years suggested in John Aubukus's case, regardless of the personal circumstances and extenuating circumstances of the case in question that favour the prisoner, is also imperative.

5. Having articulated those underlying principles, it remains for me to balance the extenuating circumstances of the offence and mitigating factors on one hand against the aggravating circumstances and impose a sentence that reflects the aggregate balance of those factors and circumstances.

Extenuating circumstances

7. In favour of the prisoner, I take into account all those extenuating matters pointed out by his counsel including the fact that no weapon was used, no severe physical injury was inflicted in the process of the sexual attack and that there is no evidence of any sexually transmittable disease transferred to the victim. I take these circumstances into account in his favour.

8. Counsel for the prisoner submitted that the offence was not pre-meditated and that offence was committed by three men who shared the responsibility for the attack between them. I do not consider these circumstances to be appropriate extenuating circumstances. In law, each of the three accomplices are equally liable for the offence committed in common purpose. Further, the statement of witnesses and the prisoner's own statement given to police shows that the crime was pre-mediated or pre-planned, albeit for a shorter time. They planned to attack her when they sat on the beach front and observed her swimming alone in the sea in the night and they executed their plan accordingly.

Mitigating factors

9. The prisoner is a young man, single, has had limited education at primary school level . He is a Christian, has no prior convictions against his name and generally a man of prior good character. He freely admitted the offence to the police when they interviewed him. He freely admitted the offence to the District Court magistrate at the committal hearing and pleaded guilty before this Court. As a result, he saved the Court time and resources and more importantly, it saved the victim the embarrassment and stress of giving evidence at a trial. He also expressed genuine remorse for his wrongdoing to this Court, the victim and her relatives and to God. I take all these mitigating factors into account in his favour.

Aggravating factors

10. The very fact that the offence was committed in the company of two other persons and the offence was committed upon a person with a disability in themselves are serious circumstances of aggravation. The fact that all three persons took turns in sexually penetrating her is a serious form of invasion of her person. The victim's statement coupled with the accused's own statement in the record of interview confirms that the victim was held captive and subjected to repeated indignities before and during the act of penetration. She was traumatized by the ordeal and this is confirmed by the medical report. According to that report, the post traumatic episode would last for 2 months to heal. Those traumatic experience obviously would no doubt remain in her memory in her life time. She was preyed upon at night when she was swimming in the sea next to her village and was completely taken by surprise, she was in pain during the entire episode and stressed out. She was also subjected to further stress and humiliation and threatened at the house by her parents in order for them to force her to tell the full story. I take into account these aggravating factors against the prisoner.

Aggregate balance of those factors in favour of and against the prisoner

12. I disagree with submissions by counsel for the prisoner that the extenuating circumstances and mitigating factors far outweigh the aggravating factors. It is the reverse of that. Sexual penetration of a mute person by a group of men at night time cannot be taken lightly under any circumstances.

13. I agree with counsel for the prisoner that the maximum punishment is reserved for the worst case of its kind and by reason of the extenuating circumstances referred to, the facts of this case do not present this case to be the worst case of its kind. Further, had it not been for those extenuating circumstances and the mitigating factors, a higher sentence in the top range of sentences for this type of case would have been warranted. From the decided cases referred to me by counsel for the prisoner, the top of the range in a guilty plea case involving multiple accomplices is around 15 to 17 years imprisonment.

Confirm conviction

14. Before I pass the actual sentence, I return to a point that arose during submissions which is relevant to conviction. The principle is established that it remains open for a provisional conviction recorded after a guilty plea to be revisited prior to pronouncement of the sentence if there is some aspect of the case disclosed in the court depositions or during the accused's statement in allocuturs or submissions on sentence that may tend to contract the guilty plea. The statement of the victim written in English and signed by her did concern me as to its admissibility and reliability considering the victim is a mute person and there is no statement or certificate before me from any other person certifying the victim was explained the content of the statement in a language and in a manner that she understood the document before she adopted the statement by putting her mark to it. The question arises as to how reliable the statement is in terms of supplying the evidence for the offence.

15. However I note from other statements on file including the accused's own statement to police, the medical reports and statement from a number of witnesses including the victim's parents of fresh complaint, that when they are taken separately from the victim's statement, establishes the offence. In the circumstances, I conclude that it is safe to confirm the conviction and I so do.

The sentence

16. I consider a sentence of 13 years imprisonment in hard labour to be the appropriate sentence and impose the same. I do not consider the prisoner to be a young person for which a portion of the sentence should be suspended. The pre-trial period of 1 year 4 months and 26 days is deducted from this sentence. He will serve the balance of 11 years 7 months and 4 months.

______________________________________________________________
Pondros Kaluwin, Public Prosecutor: Lawyer for the State
Frazer Pitpit, Public Solicitor: Lawyer for the Prisoner