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State v Awi [2016] PGNC 338; N6563 (17 June 2016)

N6563

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 960 OF 2014

BETWEEN

THE STATE

AND

DAVID AWI

Kundiawa: Liosi, AJ.
2016: 26^thApril, 17^th June

CRIMINAL LAW – Sentence – Sexual penetration of a child 6 years old – Criminal Code Act, Chp262 – Section 229A(1)& (3) – Factors in mitigation – guilty plea – Prisoner now crippled – Isolated and one off incident – first time offender – no use of force or violence – Aggravating factors – Existence of trust – Age difference – Sentence of 10 years imposed

Cases cited:
Goli Golu -v- The State [1979] PNGLR 653
Sabiu -v- The State (2007) SC866
State -v- Biason Benson Samson N2799 to
State -v- John Ritsi Kutetoa (2005) N2814
State -v- Pennias Mokei (No.2) 2004 N2635
State -v-Tiama Esrom (2006) N3054
The State -v- Ben Sakias (2011) N4238
The State -v- Billy Paulo N5286
The State -v- Ereman Kepas (2007) N3192
The State -v- Joe Mui CR 1495 of 2010
The State -v- Kawage [2009] PGNC 87
The State -v- Martin Willie CR 541 of 2010 (Unreported and unpublished judgment dated 12^th December)
The State -v- Peter Lare (2004) N2557
Yalibakut -v- The State [2006] PGSC 27 SC890

Counsel:
K. Umpake, for the State
M. Yawip & B. Popeu, for the Prisoner

Ruling

17^th June, 2016

1. LIOSI AJ: The Prisoner David Awi pleaded guilty to 1 count of sexual penetration of one Marian Ulka a 6 year old female pursuant to s.229A(1)(2) & (3) of the Criminal Code.
   
2. The State alleged that the prisoner on the 25^th day of April 2012, at Goglme Village in Kerowagi in Papua New Guinea engaged in an act of sexual penetration with one Marian Ulka a female child under the age of 12 years, then aged 6 years by inserting his penis into her vagina.
   

And at this time the said David Awi had an existing relationship of trust with the said Marian Ulka.

Facts

3. The alleged facts upon which the prisoner is sentenced is as follows. At about 2 pm on the 25^th April 2012 at Goglme Village in the Kerowagi District, the victim a 6 year old female child was with her mother at a neighbour’s house where people were gambling. The prisoner then 22 years old had returned from school and was alone in the victim’s house. He called the victim over to the house. Whilst playing with her, he got tempted. He lifted the victim onto the bed and had sexual intercourse with her by inserting his erect penis into her vagina. The victim did not reveal the incident to anyone in fear of harm by the prisoner.
   
4. She developed vaginal infections and became ill from time to time. On 3^rd May 2014 she complained of abdominal and back pains. Upon persistent questioning by the mother and a medical staff from Kerowagi Health Centre she eventually reported the incident. She was then medically examined and treated.
   
5. The State further alleged a relationship of trust with the victim because he lived at the victims house and was been looked after by the victims parents.
   
6. I entered a plea of guilty and convicted him after reading the depositions and satisfying myself.
   

Antecedent

7. The prisoner is 24 years old and completed grade 10 at Kerowagi Secondary School in 2013. He was unable to continue due to poor academic performance. Both his biological parents are deceased and he was being maintained and supported by the victim’s parents who are his uncle and the wife. He has no prior convictions.
   

Allocatus

8. On allocatus, the prisoner said whilst he was in the Police cells, there were two breakouts. He did not escape as he respected the Court. After been committed to stand trial, he was transferred to Barawagi Correctional Institution Services. Whilst awaiting his trial, his mother passed away. The village Councillor and his family requested if he could attend the funeral but the Correctional Institution Services refused the request. This prompted him to escape from custody. He surrendered after the escape but after been taken back to the cellblock he was shot on the leg four (4) times from which he is now crippled.
   
9. He says sometimes he is fed but most times he goes without food. Barawagi Jail is now over crowded as it is serving two provinces. Sometimes he excretes in the cellblock causing unhygienic conditions for other remandees. His family will assist him if he lived outside. He is sorry to the Court, to God the father and family of the victim for the crime.
   

Submission on Sentence

10. Mr. Popeu for the prisoner submits that since the State has pleaded circumstances of aggravation under s.229 (2)&(3) in the indictment the maximum imprisonment term would be life imprisonment but subject to s.19 of the Criminal code Act. The relevant provisions of s. 19 of the Criminal code Act would be s.19(1)(a)&(d)&19(6)(a)&(b) which deals with the construction of provisions of the Code as to punishments.
    
11. He submits the other relevant applicable principle of law is to be found in the Supreme Court case of Yalibakut -v- The State [2006] PGSC 27; SC 890. The Supreme Court in that case held that “as to the facts which the offender has not pleaded guilty, the offender must be given the benefit of a reasonable doubt”. In such circumstances the Supreme Court also held that the Court should act on version of facts which within the bounds of possibility is most favourable to the accused.
    
    12. In mitigation he submitted the following;

1) Prisoner has no prior convictions and is a first time offender.
2) He co-operated with the Police at the outset as admitted in his Record of interview.
3) He pleaded guilty to the offence.
4) The prisoner expressed genuine remorse as evidenced in his allocatus where he apologised to the Court, the victim and her family.
5) No weapon was used in the commission of the offence.
6) The victim did not suffer any serious or permanent physical injury. According to the medical report dated 5^th May 2014 that was tendered into evidence the victim was in stable and satisfactory condition.
7) The Prisoner is now a cripple as evidenced in his allocatus and Pre- Sentence Report.
8) The Prisoner is a young offender. He is now 24 years old; he was 22 years old when he was charged (see antecedent report of 2014), and was 18 years old during the commission of the offence in 2012.
9) Isolated incident with no pre-planning.
10) The defence submits that there was consent in this case and that it is a relevant mitigating factor in this case.

13. The evidence before the Court is sufficient for the Court to draw an inference that sexual intercourse was consensual in this case. The accused stated in his Record of Interview (questions 23 and 25) that the victim consented to sexual intercourse. According to the victim’s statement she did not scream and further there is no evidence of force. The incident was not reported until 2 years later when the mother enquired. The victim stated that she was threatened by the Prisoner not to tell anyone but the Prisoner denies issuing any threats to the victim.
    
14. Applying the principles in the case of Yalibakut -v-The State (supra), the Prisoner in this case must be given the benefit of a reasonable doubt to facts which he has not pleaded guilty to. They include the issue of consent and threat to the victim not to tell anyone. These facts are in contention and the Prisoner must be given the benefit of a reasonable doubt as to this issues. The Record of Interview is in line with the victim’s statement which does not attest to any screaming or force and the very late revelation by the victim establishes a reasonable doubt as to whether there was consent or not. Therefore the Prisoner should be given the benefit of that doubt based upon this evidence.
    
15. Counsel also cited several cases to assist the Court in determining the penalty. He cited the cases of The State -v- Kawage [2009]PGNC 87; N3696 and the Supreme Court case of Yalibakut -v- The State (supra)
    
16. In the case of State -v- Kawage, the offender pleaded guilty to the charge of Sexual Penetration of a Child under the age of 16 under section 229 A (1) of the Criminal Code Act. The age difference between the offender and the victim was 10 years as the prisoner was 24 years old and the victim was 14 years old at the time of the offence. There was lack of consent in that case and there was an existing relationship of trust as the prisoner was the victim’s uncle. In that case there existed the factor of aggravated violence as the prisoner punched the victim’s face and covered her mouth before and during the sexual encounter. The prisoner was sentenced to 14 years in hard labour at Barawagi Correctional Services.
    
17. In Yalibakut -v- The State (supra), there was an appeal against conviction and sentence. The relevance of that case is the appeal against the sentence. The offender in that case pleaded guilty to a charge of Sexual Penetration of a Child under the age of 16 under section 229A(1) of the Criminal Code Act. The age difference between the offender and victim was 29 years as the prisoner was 40 years old and the victim was 11 years old at the time of the offence. There was no violence used against the victim and the accused claimed that he had sexual intercourse with the victim by consent. His honour Justice Kandakasi did not consider consent as a mitigating factor when sentencing. His honour Justice Kandakasi then proceeded to sentence the prisoner to 17 years imprisonment. The prisoner then appealed to the Supreme Court against the sentence as being excessive. The Supreme Court then held that “the trial judge erred by not giving the benefit of a doubt to the offender on the issue of consent, in a way that vitiated the sentence”. The Supreme Court in that case upheld the appeal against sentence, quashed the sentence and substituted with a sentence of 14 years imprisonment.
    
18. In comparison he submits the current case before the Court is less serious than the two referred to above. The case of State -v- Kawage involved circumstances of aggravated violence, lack of consent and the offender was in a position of trust as being the victim’s uncle. The case of Yalibakut -v- State involved a substantial age difference of 29 years in that the victim was 11 and the accused was 40 years old. In both cases the offenders were sentenced to 14 years imprisonment. The prisoner in the current case should receive a lesser sentence then the two referred cases.
    
19. He submits that given the Court’s sentencing discretion under section 19(1)(a), the mitigating factors; including the existence of consent which has been established on the balance of possibilities and benefit of a reasonable doubt, the appropriate sentence for this case should be within 10 to 14 years.
    
20. Furthermore, given that the prisoner is now a cripple and the Pre-Sentence Report recommends part custodial sentence and part probation, he submits that the Court exercises it’s sentencing discretion under section 19(6)(a)&(b) and suspend part of the sentence upon the prisoner entering into a recognizance. The defense also submits that the Pre-Sentence custodial period from 13^th May 2014 to the date of sentence be deducted from the balance to be served.
    
21. The State on the other hand submitted that the following circumstances of aggravation are present and must be considered. They are;
    
    • (a) The prisoner was about 22 years old at the time of the offence. The victim was 6 years old then. There is a big age difference of about 16 years.
    • (b) The victim was only 6 years old. The prisoner took advantage of her tender age and lack of her understanding of the nature of the act performed on her.
    • (c) There was an existing relationship of trust between the prisoner and the victim which was breached.
    • (d) The victim had contracted sexually transmitted disease.
    • (e) Prevalency of the offence
      
22. The State further referred to a number of cases set out below.
    
23. In a similar case of The State -v- Peter Lare (2004) N2557, the offender pleaded guilty to sexually penetrating a 10 year old girl whom he had adopted after her parents had passed away. There was a serious breach of trust. The offender was sentenced to 20 years imprisonment.
    
24. In State -v- Tiama Esrom (2006) N3054, the offender pleaded guilty to sexual penetration of a 9 year old girl who was his granddaughter. Offender was between 50-60 years old. There was a big age difference and breach of trust. The offender was sentenced to 12 years imprisonment.
    
25. In State -v- John Ritsi Kutetoa (2005) N2814, the offender returned home drunk and took his 10 year old step daughter into a room and sexually penetrated her. There was a serious breach of trust. Offender was sentenced to 17 years imprisonment.
    
26. Considering the above cases, the State submits an appropriate penalty would be in the range of 15–20 years.
    

The Law

27. Section 229 A of the Criminal Code Act as amended prescribes the penalty of such an offence.

“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”

28. Since the State has pleaded circumstances of aggravation under section 229A(2)&3 in the indictment, the maximum imprisonment term would be life imprisonment subject to section 19 of the Criminal Code Act.
    
29. The relevant provision of section 19 of the Criminal Code Act would be sections 19(1)(a)&(d) and 19 (6)(a)&(b).
    

“ 19. CONSTRUCTION OF PROVISIONS OF CODE AS TO PUNISHMENTS.

(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–

• (a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term;

(d) a person convicted in indictment of an offence not punishable with death may–

(i) instead of, or in addition to, any punishment to which
he is liable–be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and
(ii) comply with such other conditions as the court may, in its discretion, impose;
(6) When a court sentences any person convicted under Subsection (1)(d) to a term of imprisonment, it may further order that–

(a) the offender be imprisoned for such portion of that term as it thinks proper; and
(b) the execution of the sentence for the remaining portion of the sentence be suspended on his entering into a recognizance, with sureties if so directed, in accordance with Subsection (1)(d) but further conditioned that, if called on, he shall appear and receive judgment in respect of his service of the portion of the sentence.”

30. The other relevant applicable principle of law is to be found in the Supreme Court case of Yalibakut v. The State. In that case the Supreme Court held that “as to the facts which the offender has not pleaded guilty, the offender must be given the benefit of a reasonable doubt”. The Supreme Court in that case also held that “if the Court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the Court should act on the version of facts which, within the bounds of possibility, is most favourable to the accused.”
    
31. The law views sexual penetration of a child as a very serious matter because of the emotional and the physical trauma that such acts have on children. The physical and emotional scars are normally carried for life. Under Section 229A of the Criminal Code as amended engaging in sexual penetration of a child under 16 years carries an imprisonment term of 25 years subject to Subsection (2)&(3). If the child is under 12 years the offender is liable to imprisonment for life subject to Section 19. This reflects the seriousness of the offence.
    

Sentencing Trend

32. I set out below a few cases to give us an indication of the sentencing trend for the offence.

What should be the appropriate sentence?

33. The maximum penalty that can be imposed here is life imprisonment. It is however well settled that the maximum penalty is always reserved for the worst category cases. Goli Golu -v- The State [1979] PNGLR 653. Each cases also depend on their own circumstances.
    
34. In sentencing offenders for sexual penetration cases, the Supreme Court in Stanley Sabiu-v-The State (2007) SC866 adopted and approved Canning J’s decision in the State-v-Pennias Mokei (No.2) 2004 N2635 and the State-v-Biason Benson Samson N2799. They set out relevant factors to be considered which includes;
    
    • (1) The age difference between the offender and the victim.
    • (2) How far below the age of 16 years the victim was.
    • (3) Whether there was consent
    • (4) The number of offenders
    • (5) Whether the offender used a threatening weapon or aggravated physical violence.
    • (6) Whether the offender cause physical injury or infect the victim with sexual transmitted disease.
    • (7) Whether there was existing relationship of trust, dependency or
      authority and if there was, how close
    • (8) Whether it was an isolated incident and from time to time in each particular case. For instance in a lot of the cases surveyed above the courts took into account whether the offender impregnated the victim.
    • (9) Whether the offender surrendered after the incident

(10) Whether he co-operated with police

(11) Whether he has done anything tangible such as offering compensation to the victim of her family or apologizing or reconciling with them personally or publicly.

(12) Whether he has caused further trouble to the victim and her family since the incident.

(13) Whether he has pleaded guilty

(14) Whether he has shown genuine remorse

(15) Whether he is a first time offender

(16) Whether he can be regarded as a youthful offender or his personal circumstances are such that they should mitigate the sentence.

(17) Whether there are other circumstances of the incident of the offender that warrant mitigation of the head sentence.

35. Such circumstances above can either mitigate or aggravate the offence. In my view the circumstances of this case does not place it in the worst category scenario. The maximum penalty is inapplicable never the less some custodial sentence is warranted.
    

Mitigating Factors

36. The prisoner is a first time offender. He has co-operated with the Police as evidenced in his Record of Interview. The prisoner has pleaded guilty to the offence. There was no force or violence used nor use of a weapon. The victim has not suffered any serious permanent physical injuries as evidenced by the medical report of 5^th May 2014 tendered into evidence. That victim was in a stable medical condition. There was consent in this case. The victim did not scream and there was no evidence of force. The incident was not reported until 2 years later. This was an isolated incident with no preplanning.
    
37. On the other hand, I consider the following aggravating factors against him. The prisoner was 22 years old at the time of the offence. The victim was 6 years old. There is a big age difference of 16 years. The prisoner took advantage of her tender age and lack of understanding of the act performed on her. There was an existing relationship of trust between the prisoner and the victim which was breached. The victim had contracted sexually transmitted disease and the offence is prevalent.
    
38. I have considered submissions and particularly the cases cited by counsels as guidance. I have considered each of the cases cited and note that the circumstances of each of those cases appear more serious than the current case.
    
39. I consider that the range of sentence herein should fall in the range of sentences imposed in the case of State -v- Martin Willie (supra) 10 years imposed. The State -v- Ben Sakias (supra) 12 years imposed, The State -v- Joe Mui (supra) 12 years imposed, The State -v- Ereman Kepas (supra) 12 years imposed.
    
40. The circumstances in each of the above cases appear to be more serious than the current case as they involved instances of persistent sexual abuse, sexual touching and more than one act of sexual penetration over a period of time.
    
41. The Pre-Sentence Report was prepared on interview with the Victim’s mother and father and the village Court Magistrate. Whilst noting the victim’s parents concerns that they do not wish the prisoner to be released on a non custodial sentence, the Court will sentence the prisoner on its own assessment of the evidence.
    
42. The Pre-Sentence Report has indicated that a part prison sentence term with conditions would be appropriate given the fact that the prisoner is now crippled and moves around with the aid of a walking stick.
    
43. Taking into account all the factors for and against the prisoner, the appropriate sentence would be 10 years imprisonment.
    
44. The prisoner has been in pre-trial custody for a period of 2 years 7 months which is deducted.
    
    45. The prisoner will therefore serve the balance of 7 years 5 months.

Should any of the sentence be suspended.

46. The Pre-Sentence Report recommends part custodial sentence and part probation. Using the Courts discretion under section 19(6)(a)&(b) of the Criminal Code, the period of 3 years 7 months is suspended. The prisoner will therefore serve 3 years imprisonment in light labour.
    

Sentence

47. The prisoner is sentenced as follows;
    

Sentenced accordingly,
____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner