N6916

PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 865 OF 2015

THE STATE

V

PANKA HARAI
Prisoner

Kainantu: Polume-Kiele, J
2015: 2, 11 & 20 November
2016: 29 February, 15 March 

CRIMINAL LAW - Sentence – Plea – Guilty – One count of Sexual penetration of a child under the age of 16 years, Criminal Code, s 229A (1) – Four counts of Act of indecent assaults/acts, Criminal Code, 229C (1) & (2) - Division IV.2A

CRIMINAL LAW – Sentence – Mitigating factors – Early guilty plea – Cooperation with police – Aggravating factors - Age difference of 11 years- factors relevant to sentence – application of factors – assessment of sentence – decision on sentence

Brief Facts:	

The State alleged that on the 23rd of November 2014, at around 2 pm., the accused aged 23 years; met the victims namely Ryan Rex, aged 12 years old, Ryan Sarufa aged 11 years old, Adrian Mike aged 11 years old, Gordon George aged 11 years old and Scandalyn Jason aged 14 years old at a Coffee garden at Umpia Village. The accused is from the same Village as the victims. The accused in this case, threatened the boys to cut them with a bush knife and told them to follow him to where a trumpet flower was and from there he further threatened them to follow whatever he say or else he will cut them. He then ordered the boys to remove their clothes which they all complied with. After that he removed his trousers and pants and put on a condom on his erected penis and ordered the boys to see his penis. He then ordered the victim Scandalyn Jason to suck his penis which the victim did. He is charged with one count of sexual penetration pursuant to s 229A (1) and four counts of indecent assault and act pursuant to s 229C (1) & (2) of the Criminal Code.  The offence of sexual penetration of a child under the age of 16 years under s 299A (1) of the Criminal Code, carries a maximum penalty of 25 years imprisonment and the offence of indecent assault/act of a child under the age of 12 years is 7 years imprisonment and above the age of 12 years is 5 years imprisonment.

Held:

(1)	The range of sentences determined in relation to sexual penetration of a child under 16 years old varied from 2 years to 20 years depending on the given facts and circumstances of a case and the range of sentences for indecent assaults/acts directed at a child under the age of 16 years varies from 1 year to 4 years.

(2)	In considering what is an appropriate sentence to be imposed in the light of the present case, this court will give due consideration to circumstances where aggravating facts exist such as:

(i)	Use of lethal weapon such as a bush knife or axe on an unarmed victim;
(ii)	Offender is in a position of trust;
(iii)	The offender inflicts physical violence on the victim;
(iv)	Where there is pre-planning; 
  
(3)	The prisoner’s mitigating factors are: he pleaded guilty early, he is a first time offender, cooperated with the police and is remorseful.

(4)	The prisoner’s aggravating factor are: PSR and MAR not favourable, threat to community, 

(5)	Incarceration appropriate

Cases Cited:

Avia Aihi v the State [1982] PNGLR 92
Golu v the State [1979] PNGLR 635
Public Prosecutor -v- Don Hale (1998) SC564 
SCR No. 1 of 1984: Re Maximum Penalty PNGLR 418
The State v Daba [2008] PGNC 76: N3313
The State v Wabe Kapak (2008) CR 894 of 2008
The State v George Taunde (2005) N2807
The State v Eddie Trosty (2004) N2681
The State v John Ritsi Kutetoa (2005) N2814
The State v Kalara (No.2) N5752	
The State v Karepa (2008) N2693
The State v Kemai Lumou (2004) N2684
 The State v Lepi (No.2) PGNC [2002] (22 July 2002)
The State v Pennias Mokei (No.2) 2004 N2635
The State v Peter Lare (2004) N2557
The State v Titus Soumi (2005) N2809
Public Prosecutor –v- Tardrew [1986] PNGLR 91)
Ure Hane v the State [1984] PNGLR 105

Counsel:

B Gore, for the State
S Ifina, for the Prisoner

SENTENCE

15th March, 2016	

1.	POLUME-KIELE J:   On the 20th of November 2015, Panka Harai, male  aged 23 years old appeared before me charged for one count of sexual penetration pursuant to s 229A (1) and four counts of indecent assault and act pursuant to s 229C (1) & (2) of the Criminal Code.  The offence of sexual penetration of a child under the age of 16 years under s 299A (1) of the Criminal Code, this offence carries a maximum penalty of 25 years imprisonment and the offence of indecent assault/act of a child under the age of 12 years is 7 years imprisonment and above the age of 12 years is 5 years imprisonment respectively.

Section 229A of the Criminal Code reads:

"(1) 	A person who engages in an act of sexual penetration with a child under the age of 16 is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for term not exceeding 25 years.

Section 229C of the Criminal Code reads:

(1)	A person who commits an indecent act directed at 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 five years

(2)	If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime and is liable to imprisonment for a term not exceeding seven years

2.	This is now my decision on sentence.

Committal Court Disposition

3.	The Committal Court Disposition presented by the Kainantu District Court alleged the particulars of the offence as follows:  the accused on the 23rd of November 2014, at around 2 pm., met the victims namely Ryan Rex, aged 12 years old, Ryan Sarufa aged 11 years old, Adrian Mike aged 11 years old, Gordon George aged 11 years old and Scandalyn Jason aged 14 years old at a Coffee garden at Umpia Village where he threatened these young boys to cut them with a bush knife and told them to follow him to where a trumpet flower was and from there he further threatened them to follow whatever he said or else he would cut them. He then ordered the boys to remove their clothes which they all complied with. After that he removed his trousers and pants and put on a condom on his erected penis and ordered the boys to see his penis. He then ordered the victim Scandalyn Jason to suck his penis which the victim did. He is charged with one count of sexual penetration pursuant to s 229A (1) and four counts of indecent assault and act pursuant to s 229C (1) & (2) of the Criminal Code.  The prisoner pleaded guilty.

4.	The State relied on documentary evidence which comprised mainly of statements from the witnesses including the victim and the Police Record of Interview which were contained in the Kainantu District Court Deposition that had been tendered into evidence by consent. 

(a)	The Police Record of Interview comprised both the original Pidgin and English Version dated 23rd January 2015, relating to the allegations of sexual penetration of a child under the age of 16 years old during which the accused, Panka Harai had admitted to have committed “one count of sexual penetration of a child under the age of 16 years old at Umpia Village, contrary to s 229A (1) and four counts of indecent assault/acts contrary to s 229C (1) & (2) of the Criminal Code.

(b)	The Statements of State witnesses namely Ryan Rex aged 12 years old dated 6th January 2015; Ryan Sarufa aged 11 years old dated 6th January 2015; Adrian Mike aged 11 years old dated 6th January 2015; Gordon George aged 11 years old dated 6th January 2015 and Scandalyn Jason aged 14 years dated 7th January 2015 who are the complainants in these proceedings. This also includes the statements of Kukuwe Rex dated 7th January 2015 (Ryan Rex’s father); Nakari George dated 7th January 2015 (Gordon George’s father), Morahory Sarufa dated 7th of January 2015 (Ryan Sarufa’s father), Yoyo Jason dated 7th January 2015 (Scandalyn Jason’s father) who all gave details of the date of birth of their respective child.

(c)	All these statements respectively confirmed the identity of the accused and the circumstances and his demeanour at the time of the commission of the offence including the interrogation and the laying of the charge against the prisoner.

5.	Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted. The prisoner was convicted on the charge of sexual penetration of a child under the age of 16 years old under s 229A (1) and indecent assault/acts contrary to s 229C (1) & (2) of the Criminal Code Act (Ch No 262)

Antecedent Report

6.	The prisoner has no prior convictions. 

Pre-Trial Detention

7.	The prisoner was committed to stand trial on the 29th of May 2015. He has been held in custody for a period of 9 months 17 days to the date of this ruling on sentence.

Allocutus

8.	When administering the allocutus, you were asked if you had anything to say on penalty. You stated that you wished to speak to the Court on the issue of penalty. You were then given the opportunity to speak and in your statement on penalty, you said that you were sorry for what you did. You apologised to the court and court staff and all those people present in the court room for what you had done. In addition, you asked for leniency from the Court and that you asked this Court that you be placed on probation.  

Pre-Sentence Report

9.	Because you had asked to be placed on probation and to pay compensation, your lawyer, Mr Ifina requested that this Court direct the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report and a Means Assessment Report for purposes of assessing your suitability as a candidate for supervisory probationary orders and capacity to make compensation payments if so ordered and also to assist this Court determine penalty. This process is now a necessary component of the Court process where prisoners have exercised their right to ask the Court to be placed on probation (given the principles established in the case of Public Prosecutor -v- Don Hale (1998) SC564. To facilitate this process, this Court had directed the Probations Officer, (Kainantu) to prepare and file a Pre-Sentence Report and Means Assessment Report which was compiled and filed prior to the 20th of November 2015.  These Reports were promptly provided by the Probation Officer.  

10.	According to the Pre- Sentence Report, you have two sisters and four brothers. The prisoner is the fourth child in the family. All his other siblings including his parents live in Umpia Village, in Kainantu. You were unemployed and depend entirely on your parents for financial support. The prisoner is not married.  With regard to the issue of payment of compensation, your father does not have the capacity to raise money to say sorry to all the victims and their families and therefore would accept whatever the outcome of this proceedings.  In addition, the community was also consulted as to your suitability for supervisory probationary orders and the community hold the view that it would not be in a position to rehabilitate you into the community. Overall, the Pre-Sentence Report is unfavourable. 

Mitigating Factors

11.	The relevant mitigating factors in your favour are your early plea which has resulted in saving Court’s time and State’s expenses which has resulted in this early outcome. In addition, this Court also noted that you are a first time offender and that you have co-operated well with the police including your explanation relating to the offence as recorded in the Record of Interview and that is no trust, authority and dependency relationship between you and the victims

Aggravating Factors

12.	The aggravating factors against you are that you engage in acts of sexual penetration and indecent assaults/acts with the victim which took place at your Village. At the time that you engaged in this acts, the victims were all under the age of 16 years and by doing so, you have broken a law of this country. This type of offence is prevalent; an offence for which you have to face the consequences of your actions.

Elements of the Offence - s 229A (1) of the Criminal Code

13.	In order to prove the offence of sexual penetration of a child under the age of 16 years old under s 229A (1) of the Criminal Code, the elements of the offence must be established by evidence. In that the State must prove the following:

(a)	This element of offence under s 229A (1) of the Code.  Under this subsection, evidence must be adduced to establish that the prisoner engaged in an act of sexual penetration with a child under the age of 16 years old.  In applying this element to the present case, the relevant documents that is the Statement of the victim’s fathers’ verifying the date of birth of their respective sons; whose  statements had been tendered into evidence by consent.  Relying on those evidence, the count found that the ages of the Complainants are not in dispute. This element of offence under s 229A (1) of the Code has been proven by the State.

(b)	In relation to the element of offence under s under s 229C (1) & (2) of the Criminal Code where the child is under the age of 12 years, this is a factor that determines the severity of sentence and for this case, the child (victim) in this case is a child under the age of 12 years then 9 years at the time of the offence.  Again, the age of the child is not disputed.

Submission on Sentence

14.	Mr Ifina on behalf of the prisoner submitted that although the prisoner had pleaded guilty upon indictment to the charge of one count of sexual penetration of a child under the age of 16 years old, an offence for which the maximum penalty prescribed under s 229A (1) of the Criminal Code Act (Ch No 262) imprisonment for a term not exceeding 25 years counts of and four  indecent assaults/acts of a child under the age of 16 years, an offence for which the maximum penalty prescribed under s 229C (1) & (2) of the Criminal Code, he submitted that this is not the worst type case of these offences and said that this case should be considered on its own set of facts and merits and referred to SCR No. 1 of 1984: Re Maximum Penalty PNGLR 418; Avia Aihi v State [1982] PNGLR 92, Golu v the State [1979] PNGLR 635 and Ure Hane v State [1984] PNGLR 105 in support of his submission. He submitted further that by operation of s 19 of the Criminal Code, the Courts have wide discretion under s19 of the Criminal Code to impose a lesser penalty and on that basis, this exercise of powers gives this Court wide discretion in making the maximum sentence discretionary. A number of case authorities were also referred to in support of his submission on sentence and some of these case authorities are referred to in this judgment.

15.	Mr Ifina also urged this Court to also consider other factors in its determination of penalty which include the fact that the prisoner had pleaded guilty early saving court time and expenses to the State including the fact that this act was not pre-planned and the prisoner acted alone. Furthermore, the prisoner is a first time offender with no prior convictions. He had cooperated well with the Police and is remorseful and has apologised for his behaviour to this Court, the victim and her family through this Court.

16.	Mr Ifina submitted that this Court in the exercise of its discretion impose a prison term between 1-3 years for count 1, 5-8 years for count 2, 1-3 years for count 3, 1-3 years for count 4 and 1-3 years for count 5; however, deduct the period that the prisoner has been held in custody and consider suspension of the term of the sentence on terms. Further, that the prisoner pay compensation in the sum of K1000.00 each and food stuff to the victim and to restore peace.

17.	Ms Gore for the State; in reply, submitted that this is a case where, the prisoner had breached the trust that had existed between the victim as himself. He is in a position of trust and authority and the victim depended on him to protect her. They are blood relations. Instead of protecting the victim, he violated that trust and abused her sexually. He did use weapons to commit the offence.  This type of offence is prevalent. Ms Gore impressed upon this Court that such offence should not be allowed to go unpunished. There is an increase trench relating to offences relating to the abuse of vulnerable and innocent young girls, women, mothers and this Court should impose a custodial sentence as this would be seen as having a deterrent effect on offenders from re-offending and to others from committing such offences. 

18.	In addition, Ms Gore submitted that whilst the prisoner has stated that he is willing to pay compensation, there is really no genuine attempt or efforts made to do so nor there being any serious attempt made to reconcile or to pay compensation to the victim and her family. Furthermore, other factors which should be taken into account include the fact that there is age difference of the prisoner and the victim which is about 14 years. That is the prisoner is 23 years and the victim then 9 years old.  

19.	With regard to sentence, Ms Gore submitted that this Court has wide discretion under s 19 of the Criminal Code to impose an appropriate penalty; including discretion to also impose conditions as to the payment of compensation and to reconcile and make peace with the victims and their family. Overall, Ms Gore submitted that there was a serious breach of trust because the prisoner and the victims who are from the same Village. This type offence is also becoming prevalent and a deterrent sentence must be imposed to protect vulnerable children and to restore confidence within community due to an unfavourable PSR. She submitted that the Court exercise discretion to impose a custodial sentence of 12 to 15 years as a deterrent factor.

Determining sentencing

20.	In determining sentence, this Court notes that "The general principle is that the maximum punishment should be awarded only in the worst cases” and also given the principles established in (SCR No. 1 of 1984: Re Maximum Penalty; Golu Golu –v- The State (supra); Avia Aihi –v- The State (No3) (supra) and Ure Hane v the State (supra) that each case should be considered on its own set of facts and circumstances.

21.	Furthermore, the Court has considerable discretion whether to impose the maximum penalty or a lesser sentence under Section 19 of the Criminal Code. Section 19 of the Criminal Code provides among others, the following penalty that can be imposed: a shorter term may be imposed [subsection (1)(a)], a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (1)(b)], a good behavior bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d)], the offender can be discharged and the sentence postponed [subsection (1)(f)] or a part of or all of the sentence can be suspended subject to conditions [subsection (6)]. 

22.	The issue before the court is whether you should be sentenced according to the penalties prescribed under s 229A (1) and s 229C (1) (2) of the Criminal Code Act (Ch No 262)?  Mr Ifina submitted that the maximum sentence of 25 years imprisonment, and 7 years subject to s 19 is not applicable in this case because of a number of reasons and outlined these reasons to be as follows: Firstly, the facts of the case is peculiar and different thus this court should consider imposing sentence on a case by case basis and the maximum penalty should be reserved for only the very worst case type of sexual penetration of a child and indecent assault/acts under the age of 16 years old citing the principles established in SCR No. 1 of 1984 (supra); Avia Aihi v The State (supra) and Ure Hane v the State (supra) to support his submission on penalty.

23.	This Court is therefore tasked to consider and determine an appropriate sentence to be imposed on you.  In order to determine such a penalty, I have to firstly determine whether your case is such a case that warrants the imposition of the maximum penalty. This means that I would have to determine whether the facts of this case are so serious that the maximum penalty must be imposed, than I may take that into consideration and impose the maximum penalty. On the other hand, if the facts and circumstances of this case are not so serious, than this Court may consider imposing a sentence below the maximum penalty. Having stated all of the above, this Court also has a very wide discretion to impose a sentence below the maximum penalty under Section 19 of the Code based on proper judicial principles.

24.	Other matters which are also taken into consideration when determining penalty include the Pre-Sentence Report and views of the community where you come from including the overall justice administration relating to sentencing principles and its objective in making our society safe and secure in which every man, woman and child is free to live and not be afraid. This Court notes that the Pre-Sentence Report is unfavourable.  

25.	Equally, important to the consideration of severity of sentence is the recognition that sexual offences are on the increase. More so, such offences occurred in family settings or situations where offenders in such cases stood in positions of trust, authority and dependency towards their victims.  In order to address these problems, our law makers had introduced amendments to the Criminal Code by enacting the Criminal Code (Sexual Offences and Crimes Against Child) Act 2002 purposely to deal with such offences. 

26.	This amendments also have prescribed tougher penalties for these offences and the circumstances of aggravation. This Court’s role in dealing with offenders who breached such laws are to give effect to the intentions of our Legislators (Parliament) and that is to impose appropriate sentences on offenders who breach this law and must be punished for their wrong doing. It is equally important for offenders to realize that such wrongs will not go unpunished and where warranted offenders are incarcerated to prevent them re-offending. At the same time and most importantly, the imposition of tougher punishment is seen as a deterrent to others so that they too, do not commit the same offence or (any other offence). 

27.	Counsels have assisted this Court in citing relevant cases in order to determine penalty and provided a table adapted from decided cases involving s 229A -sexual penetration of a child under the age 16 years offences and indecent assault/act under s 229C (1) (a) (4) of the Criminal Code and I have in this regard, outlined a summary of these cases (in a table) below in this judgment to assist this court determine sentence.

28.	Summary of sentences imposed sexual penetration of a child under the age 16 years offences and indecent assault/act 

No	Case 	Details of Charges	Sentence Imposed	

1	 
The State v Wabe Kapak (2008) CR 894 of 2008 	
Young male prisoner pleaded guilty to rape of another male prisoner by forcing him to suck his penis while threatening him with a knife. No physical injury. Offender apologised and reconciled with victim, early guilty plea, remorseful. Aggravating factor, use of an offensive weapon; victim suffered shame and humiliation	
Sentence to 4 years imprisonment wholly suspended on terms.	

2	
The State v Pennias Mokei (No.2) 2004 N2635, Wewak	
Offender aged 33 years, charged and convicted with -one count of sexual penetration of child under the age of 16 years.  Complainant, a girl aged 13 years. Offender was the girl’s uncle. No consent, isolated incident – serious betrayal of trust. Offender cooperated with police – pleaded guilty and expressed remorse. No attempts at compensation. First time offender- no trouble caused with complainant or family since commission of offence.	
Sentence to 15 years imprisonment	

3	
The State v Lepi (No.2) PGNC [2002] (22 July 2002)	
Offender convicted on one count each of attempted unlawful carnal knowledge of a girl under 10 years, than aged 5 years and second count of indecently dealing with a girl under 16 years. Offender married man. Victim trusted him as an uncle and Christian friend. Offence committed within family house (grandparents’ home). 	
Sentence to 8 years imprisonment for attempted carnal knowledge;
Sentence to 3 years imprisonment for indecently dealing.

4	
The State v Daba [2008] PGNC 76: N3313	
Offender pleaded guilty to sexual penetration of a child under the age of 16 years. Victim was 13 years old. 	
Sentence to 6 years imprisonment.	

5	
The State v Kalara (No.2) N5752	
Offender charged for one count of sexual penetration and 4 counts of indecent acts.
5 different children involved. All under 16 years of age. 	
Indecent acts – 5 years
Sexual penetration- 12 years
Indecent acts – 2 years
Indecent act – 3 years

Indecent assault – 4 years

22 years imprisonment concurrently

6	
The State v Karepa (2008) N2693 	
Offender charged for one count of sexual penetration with fingers and one count of indecent act. Different victims, a child under the age of 16 years 	
Sentence to 2 years for indecent assault

10 years for sexual penetration	

7	
The State v Peter Lare
(2004) N2557	
Offender aged 40 years charged with one count of sexual penetration. Complainant, a girl aged 12 years. Offender is girl’s adopted father. No consent, no physical aggravated personal violence but offender passed on sexually transmitted disease to complainant. Part of pattern of persistent abuse over a period of 2 years. Serious betrayal of trust. Offender cooperated with the police. Pleaded guilty, expressed remorse. No compensation attempted. First time offender. Offender labelled a sexual predator.	
Sentence to 20 years imprisonment	

8	
The State v Eddie Trosty (2004) N2681	
Offender aged 21 at time of offence, charged with one count of sexual penetration. Complainant, a girl aged 15. Complainant was offender’s girlfriend- consensual sex, no aggravated physical violence; part of a pattern of persistent consensual sex. Offender cooperated with police- pleaded guilty and expressed remorse. No compensation paid- first time offender	
Sentence to 6 years imprisonment	

9
	
The State v Kemai Lumou (2004) N2684	
Offender aged 22 years, charged with one count of sexual penetration. Complainant, a girl aged 14 years. Offender was girl’s uncle. No consent – aggravated physical violence: used a bush knife to threaten complainant and sexual penetration was forceful. No evidence of physical injury or infection of complainant with sexually transmitted disease. Isolated incident – serious betrayal of trust- offence committed against a pupil on her way to school. Offender did not cooperate with police. Tried to cover up his actions by claiming that complaint was his girlfriend, aged 17 and sex was consensual. Pleaded not guilty. Complainant was forced to relive crime. No evidence of offender saying sorry to complainant and her relatives. No compensation attempted. First time offender.	
Sentence to 17 years imprisonment	

10	
The State v Titus Soumi (2005) N2809	
Offender aged 30 years at time of offence; charged with one count of sexual penetration. Complainant, girl aged 14 years. Offender married to complainant’s older sister. Consensual sex – no physical violence. Offender cooperated with police – pleaded guilty and expressed remorse. No compensation attempted. First time offender.  	
Sentence to 2 years imprisonment	

11	
The State v John Ritsi Kutetoa (2005) N2814	
Offender aged 39 years at time of offence, charged with one count of sexual penetration. Complainant, a girl aged 10 years. Stepfather/step daughter relationship. Lack of consent – no weapons used or aggravated physical violence. Physical injury caused to child. Violation of existing relationship of trust. Offender cooperated with police, pleaded guilty, expressed remorse. No compensation attempted. First time offender	
Sentence to 17 years imprisonment	

29.	The sentences imposed in sexual penetration cases ranged from a term of 2 years to 20 years imprisonment. In the case against you, you have admitted to the sexual penetration of a child under the age of 16 years, an offence under s 299A (1) of the Criminal Code attracts a maximum penalty not exceeding 25 years imprisonment.

30.	 Sentences imposed in indecent assault/acts also varied from 2 years to 4 years

31.	This Court is now tasked to determine whether it will impose the maximum penalty on you given the circumstances and facts of your case or whether it will impose a lesser penalty.

32.	In order to arrive at a decision as to whether to increase or decrease the head sentence; I have taken into account the guidelines identified in the case of The State v Pennias Mokei (No.2) 2004 N2635 to assist this court determine penalty. Given that rationale, the process of sentencing is not governed by any definite process. It is a discretionary exercise and thus the weight given to all these considerations are not measured by a measuring tool. The standard of assessment given to any of the mitigating or aggravating factor depends entirely on the prevailing circumstances and facts of a case.  For instance, in this case, the age of the victim and the age difference between the offender and the victim are important considerations. Where there is a small age difference, then this may be regarded as a mitigating factor. 

33.	Overall, where the victim is of tender age, then the offence is more serious. Also important to these considerations are whether there is consent or no consent. Whilst the absence of consent is not an element of the offence, this can still lead to an offender being found guilty of the offence as held in the case of the State v Eddie Trosty (supra) where there was real consent to sexual penetration. In a case where there was no consent; then this is a serious aggravating factor, particularly where a weapon (e.g. a bush knife) is used as in the case of Kemai Lumou and Wabe Kapak (supra) or if there is aggravated physical violence or physical injury caused to the victim and whether this is an isolated incident or is part of a pattern of abuse as held in the case of the State v Peter Lare (supra) who was labeled a sexual predator.

34.	Other matters which are also taken into consideration are the conduct of the offender and how the offence has been dealt with. Has there been any compensation and or reconciliation attempts made to express remorse for the wrong done and what are the personal circumstances of the offender and  are there any other considerations which should be taken into account that have been overlooked  and should be taken into consideration?

Application of considerations

35.	In applying this principle to the current case; this Court found that all the victims are a child under the age of 16 years old; that is they were aged between 11 years and 14 years old respectively when the prisoner engaged in acts of sexual penetration and indecent assault/acts occurred on 24th of November 2014. 

36.	While it is apparent that the list of mitigating factors and aggravating factors are about the same, these factors should not be seen as diminishing the gravity of your crime. You have preyed on young vulnerable children. This is a factor that outweighs any mitigating factor in your favour and calls for a penalty to be imposed that is within the bounds of reason and principle of decency and trust. This type of offence and similar offences against children are on the increase. Therefore there is a need to impose tougher penalties for purposes of deterrence to stop offenders from re-offending and others from committing the same offence. Children should be protected irrespective of whether they are your flesh or blood.  There is a moral obligation on every man to protect young vulnerable innocent children and keep them safe from harm. 

37.	Having considered all of the above I am satisfied that the aggravating factors are significant such as to warrant fixing the starting point of sentence  for sexual penetration at 10 years and for indecent assault/act at 3 years for each count of indecent assault/act.

The next question is “Should all or part of the head sentence be suspended?

38.	Counsel for the prisoner submitted that this Court suspension of the sentence either partly or wholly after passing sentence. Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report as held in the case of the Public Prosecutor –v- Done Hale (1998) SC 564).  Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships (Public Prosecutor –v- Tardrew [1986] PNGLR 91). Whilst this court agrees that some form of punishment be imposed as a deterrent factor, there is also a necessity to encourage reconciliation and peace between the parties. This will be seen as a reinforcement of the prisoner’s genuineness of being remorseful.  For your case, the PSR unfavourable.

39.	In consideration of all of the above factors, I sentence you as follows: 

(1)	Count one: Indecent assault/act – 2 years imprisonment
(2)	Count two: Sexual penetration –  8 years imprisonment
(3)	Count three: Indecent assault/act – 2 years imprisonment
(4)	Count four: Indecent assault/act – 2 years imprisonment
(5)	Count five: Indecent assault/act – 2 years imprisonment

These sentences will be served concurrently.

40.	I deduct the period of 9 months 14 days that you have been held in custody.

41.	The balance of the term of sentence of 7 years 2 months 16 days imprisonment will be served in custody at CIS, Bihute.

42.	None of the sentence is suspended.

Orders accordingly,

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