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State v Hillary (No.3) [2015] PGNC 197; N6095 (10 September 2015)

N6095

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.750 OF 2014

THE STATE

V

ROCHUS HILLARY (N0.3)

Kokopo: Lenalia, J
2015: 15th, 16th, 21st July & 10th September

CRIMINAL LAW – Sexual penetration of underage girl – Sentence after a finding of guilty – Criminal Code s.229A (1) of the Criminal Code as Amended

CRIMINAL LAW – Sexual penetration of the victim under the age of 16 years – Sentencing principles on crimes of sexual penetration of underage girls

Cases cited.

Maima v Sma [1972] PNGLR 49
The Secretary for Law v Suares [1974] PNGLR 288
The Public Prosecutor v Terrence Kaveku [1977] PNGLR 110
The State v Penias Moke (2004) N2635
The State v Biason Benson Samson (2005) N2799.
Stanley Sabiu v The State (2007) SC866
The State v Kukubur Walia (17.3.09) CR.No.883 of 2006
The State v Waira Nason Tomar (9.10.06) CR.No.534 of 2005

Counsel

Mr. L. Rangan, for State
Mr. P. Kaluwin, for the Accused

10th September, 2015

1. LENALIA, J: The prisoner in this case Rochus Hillary was found guilty on 21st July this year on two counts of sexual penetration of the victim under the age of 16 years contrary to s.229A (1) of the Criminal Code.

2. Before I discuss the law on sentencing trends, I give a brief outline of the evidence on trial upon which the prisoner was found guilty. On 25th December 2013, the victim, Ms. Elly Moso, had been beaten up by her uncle in his family house at Volavolo village, Rabaul District and she ran away seeking a place for refuge for the night. She left the house about 11 pm and called the accused via his mobile and asked him to come and meet her and on the road and escort her to her parents' house.

3. After they met on the road, the accused told her that, it was getting late and he was to take her to his house and the next day he would take her to her parents' house. In the morning of the next day, she asked the accused to take her home and the accused told her that he would take her home sometime later.

4. According to the victim's evidence, she was kept in the accused parents' house for 7 days. In those days, the prisoner tried as much as possible to keep the victim hidden from his parents until his father found out after five days when she had been contained by the prisoner. In her evidence, the victim revealed that the prisoner and the victim had entered into a relationship of boy and girl friend prior to the date the offences were committed.

5. According to Elly's evidence, the first act of sexual intercourse took place on the night of 27th, and the second time they had sex was on the night of 30th December 2013. On the defence case, the accused denied sex and said, he merely kissed her in those nights they were in his room. It was not clear from her evidence if sexual intercourse had taken place before the time they had sex. On 21st July this year, the court found the accused guilty and convicted him accordingly.

Application of Law

6. The provision of the law which the prisoner breached is s.229A (1) of the Criminal Code. This Section states:

"(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 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

is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life."

7. The prisoner's case falls under Subsection (1) only. I have also quoted Subsections (2) & (3) because they contain aggravations and for purposes of airing general awareness to educate young offenders and the public in general as a means of providing awareness on the seriousness of the offence of sexual abuse of under-age children and minors and of course the older generations as well.

8. The victim was more than 15 years less than the statutory limitation provided under s.229A (1) of the Criminal Code. The evidence showed that it may have been consensual sexual intercourse. However, pursuant to s.229F, of the Code, consent is not a defence for charges under the Division.

Addresses on Appropriate Penalty

9. On his last say, the prisoner expressed remorse for what he did to the victim and said, the victim was his girl friend at the time the offences were committed. He asked the Court to consider he is a first - time offender as he had never appeared in any courts before. He asked the Court to consider he has not completed his education as he left it at Grade 11. He asked for leniency and said, he did what he did out of ignorance of law and submitted that, what he did was done with the will and wish of the victim. He said, he is still a student and wants to continue his studies if he is given a suspended sentence. He raised concern about his parents saying they are both alive and there is no one to look after them.

10. Mr. Kaluwin of counsel for the prisoner asked the court to consider the following factors:

➢ his client is a first time offender,
➢ no force was used to commit the offence,
➢ a one off incident,
➢ no sexual diseases was passed to the victim and
➢ the fact that, as the court found, sex was consensual.

11. Counsel submitted that though there is a lot of community input in the pre-sentence and means assessment reports, the court can be able to exercise its sentencing discretion to impose an appropriate penalty. He asked the court to consider the fact that, the victim and the prisoner had earlier entered into a relationship of boy-and-girl friend and on the nights of 27th & 30th December 2013, when sexual intercourse took place, those nights may not have been the first time for them to have sex. Counsel asked for leniency.

12. For the prosecution, Mr. Rangan asked the Court to consider the totality principle because there are of course two offences charged on the indictment. Counsel asked the Court to consider, admission by the prisoner made in the pre-sentence report to having sex with the victim but, he wanted to defend himself in Court when he entered a not guilty plea necessitating a three days trial. On the issue of compensation counsel asked the Court to consider differing views as to whether compensation should or should not be paid at all.

Sentencing Trends

13. Sentences imposed for crimes of sexual penetration cases vary from case to case. Penalties imposed on these crimes are entirely dependent on whether such offence was committed with aggravations or not. Many of those sexual offences have seen significant increases on sentences given by National Court Judges. I have considered the sentencing guidelines set by Justice Cannings in State v Penias Moke (2004) N2635 and in State v Biason Benson Samson (2005) N2799.

14. The maximum penalty for the offence for which the prisoner was charged is 25 years imprisonment pursuant to s.229A (1) of the Criminal Code. This Court has the discretion under s.19 of the Criminal Code. This means this Court cannot impose a term above the 25 years limit but it can impose a term lower than 25 years. The principle on sentencing also involves consideration on extenuating and aggravating factors. On the issue of sentence and what should be the appropriate penalty to be imposed on any case, the practice so far is, it is left to the sentencing discretion of the National Court Judge to decide the appropriate penalty in each case depending on the merits of each case. Stanley Sabiu v The State (2007) SC866

15. Because of the rise of sexual crimes, concern authorities and parliamentarians of this nation considered that the former provision for sexual crimes was amended. The victim of this case was at the age of 15 years at the time consensual sex took place.

16. If there is any truth in the evidence and factual circumstances of this case, like the comments of those persons contacted by the author of the pre-sentence and means assessment reports which seem to say that, there may have been prior engagement of either sexual intercourse between the victim and the prisoner or that the prisoner and the victim had a relationship before the offence, such action still defeats the purpose of the Act because such law was designed to protect children from being abused as consent is not a defence under s.229F of the Amended Criminal Code.

17. Before you are sentenced, let me say that Judges of the National Court always say that, sexual intercourse with underage girls is serious. That is why in a similar case like the one you committed, that of State v Kukubur Walia (17.3.09) CR.No.883 of 2006, the prisoner pleaded guilty to two counts of sexual penetration of an under-age girl charged under s.229A (1) of the Code, he was sentenced to 8 years for the first count and 6 years for the second count.

18. Those sentences were ordered to be served concurrently. Five (5) years were suspended with conditions including compensation to be made by the parents of the offender. The above matter was a case in this Province as well as the following ones. That was a guilty plea case.

19. In State v Waira Nason Tomar (9.10.06) CR.No.534 of 2005, the offender was charged for sexual penetration of the 14 year old victim. In that case, there were two acts of sexual intercourse. Four (4) years were imposed for the first count and three (3) years for the second. Sentences were ordered to be served consecutively. Then in State v Paul Wakara (2006) CR.No.914 of 2006, it was a case where the offender was charged for one count of sexual penetration of a ten year old child. The offender forced the victim into sex. Though no injuries were found, he was sentenced to 10 years imprisonment.

20. Mr. Rangan correctly referred the court to the totality principle on sentencing for offences committed one after the other or where in the course of committing an offence, another crime is committed. On this principle, I consider the fact that, the prisoner is charged with two counts under the section charged.

21. Where there are a string of offences and where consecutive sentences are considered, a final review of those sentences should be made to ensure that, the total penalty is not excessive: The Public Prosecutor v Terrence Kaveku [1977] PNGLR 110. Not only that but, where cumulative sentences are imposed, totality sentences must not exceed the prescribed maximum penalty: The Secretary for Law v Suares [1974] PNGLR 288.

22. Having considered all circumstances of this case such as the mitigations together with the aggravations, the maximum penalty is usually reserved for the worse type case: Maima v Sma [1972] PNGLR 49. On the circumstances of the instant case, the victim was under-age and to deter the current trends of sexual violence and abuse against young children, sentences imposed, must reflect the seriousness of such offences.

23. A part from all aggravating circumstances, I consider in the prisoner's favour the fact that he is a young man with no prior convictions. You must be sentenced to a term that will create deterrence not only for yourself but to other young men and even older folks who are or who may be involving themselves in similar crimes. In our Criminal List, there is a very high number of sexual offences more than any other crimes. On the instant case, I also consider the fact that, sexual intercourse of the two charges may have been consensual.

24. You are sentenced in the following manner:

Count 1. The prisoner is sentenced to 7 years imprisonment.

Count 2. He is sentenced to 5 years imprisonment.

25. These sentences shall be served concurrently. The total sentence to be served shall be 7 years. The custody period shall be deducted and you shall serve the balance. The court will not order any compensation in this case as there were no injuries caused to the victim and as well, this was consensual sex. His bail money shall be refunded to him.
_______________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.