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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 139 OF 2018
THE STATE
V
KIKU MERCY SANG
Lae: Numapo AJ
2018:12th, 20th July 03rd & 17th August
CRIMINAL LAW – Particular offence – Sexual Penetration of a Child under 16 years – Guilty Plea – Aggravating circumstances and Mitigating factors - Big age difference and Continued sexual penetration of a child makes it an aggravated sexual penetration - Sentencing Guidelines - Sentencing Discretion, ss. 229A (1) & 19 of Criminal Code – Prevalence of the Offence – Deterrence – Custodial Sentence.
Held:
(i) Intention of the legislature is made clear for the offence of sexual penetration of a child under the age of 16 years when it prescribed maximum penalty, subject to sub-sections (2) & (3) and 19, imprisonment for a term not exceeding 25 years under s.229A (1) of Criminal Code.
(ii) The offence of sexual penetration involving under-age children is not only unlawful but is also against the societal norms on accepted standard of morality.
(iii) The big age difference between the offender and the victim and the continued sexual penetration of a child over a period of time makes this an aggravated sexual penetration.
(iv) Sexual penetration of under age children and other sexual offences of similar nature is becoming too prevalent in the country in recent times and the Court must impose the type of sentence that has a deterrent effect.
(v) Offender must be given the benefit of any reasonable doubt if there exists contentious facts alleging that sexual intercourse was initiated by the victim in the absence of any evidence to the contrary that may be favourable to the accused.
(vi) Accused is sentenced to 6 years imprisonment less the pre-trial custody period.
(vii) Partial suspension of sentence with prisoner placed on a good behaviour bond with strict conditions.
Cases cited:
Goli Golu v The State [1979] PNGLR 653
State v David Awi (2016) N6563
State v John Ritsi Kutetoa (2005) N2814
State v Tiama Esrom (2006) N3054
Sabiu v The State (2007) SC866
State v Sabiu [2005] N3654
The State v Engi Hendrix Cr. No 485 of 2012
The State v Jessie Chadrol (2011) N4648
The State v Raumo [2007] N4983
Counsel:
J. Done, for the State
S. Katurowe, for the Defence
SENTENCE
17th August, 2018
1. NUMAPO AJ: This is a decision on sentence. The accused pleaded guilty on the 12th of July 2018 to one count of sexual penetration of a child under the age of 16 years, contrary to section 229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.
2. The brief facts relating to the charge are that; on the 13th of May 2017 between 10am-11am the prisoner was at Two Mile, 1 Block in Lae. The complainant was alone when the prisoner took her into the house and forced her to remove her clothes and he inserted his penis into her vagina and had sexual intercourse with her. She was afraid to tell her parents what the prisoner did to her. However, the parents became suspicious of her behaviour and questioned her and she told them what had happened. It was further alleged that the incident first started in 2014 and continued up to 2017. The prisoner was arrested and charged.
3. The medical examination carried out on the victim revealed the following:
(a) Vulva – Multiple healed linear lacerations noted on the outer vulva; healed lacerations noted at 6 o’clock position of the inner vulva extending to outer vulva; healed noted from 3 to 4 o’clock position of the inner vulva.
(b) Hymen – Laceration noted at 1 to 2 o’clock position and 7 to 11 o’clock position of the hymen.
(c) Vaginal Opening – Widening of the vaginal opening measuring 3cm x 2cm.
The medical report is consistent with what the victim told the Nursing Officer.
4. Section 229A (1) (2) of the Criminal Code reads:
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 is guilty of a crime.
Penalty: Subject to Subsection (2) and (3), imprisonment for a term not
exceeding 25 years.
(2) If a 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.
5. There are three categories of penalties prescribed under s 229A for the offence of sexual penetration. The first category is under Subsection (1) which provides for the maximum penalty of 25 years imprisonment if the victim is under 16 years of age. The second category under Subsection (2) applies to aggravated sexual penetration where the victim is under the age of 12 years. The maximum penalty under the provision is life imprisonment. The final category is under Subsection (3) which provides for life imprisonment where there is a relationship of trust, dependency and authority regardless of whether the victim is under the age of 12 or 16 years.
6. The present case falls under the first category in that the victim was under the age of 16 years, being 14 years old at the time of the offence. Therefore, the maximum penalty subject to Subsections (2) and (3), is imprisonment for a term not exceeding 25 years.
7. There is an existing relationship of trust between the prisoner and the victim at the time of the offence. The prisoner lives at 1 Block at 2 Mile and later in 2015 moved in and lived with the victim and her family in their house at 3 Mile when he committed the offence.
8. The Supreme Court in Goli Golu v The State [1979] PNGLR 653 held that maximum penalty is reserved for worst type offence. This was a ruling on a murder case which eventually became trite law and applies to other offences as well.
9. For sexual penetration offences the following factors must be present for it to be considered as a worst case:
(i) Where the offender illustrates a sadistic tendency in sexually penetrating several children at once.
(ii) Where the victim is kidnapped and sexually penetrated for a number of days.
(iii) Where the single victim is sexually penetrated by more than one offender.
(iv) Where the victim is sexually penetrated more than once over a period of time by the same offender.
(v) Where the victim suffered serious physical injuries that is life threatening and may result in some long term disability.
(vi) Where the victim suffered immense psychological trauma that has the potential to permanently affect his/her normal way of life.
(vii) Where there is evidence of a serious breach of trust and violation of relationship and dependency.
(viii) Where the offender is a repeat offender with prior convictions of serious offences such as murder, rape or armed robbery.
10. Both the State and Defence submitted that the present case does not fall under the category of worst case and asked the Court to consider a penalty less than the prescribed maximum penalty under s. 229A (1) of the Criminal Code.
11. The aggravating and mitigating factors and circumstances of the present case are as follows:
was 52 years old and the victim was 14 years old at the time the offence was committed, an age difference of 38 years. This makes it an aggravated sexual penetration.
(ii) Breach of trust – The prisoner was living with the victim’s family at their house at 3 Mile at the time the offence was committed. There was some degree of trust on him by the victim as a senior elder from the same area. He repaid the family’s generosity by committing a crime against their daughter.
(iii) The offence of sexual penetration of a child is becoming too prevalent as reflected in the number of case laws cited by Counsels.
In the Police Record of Interview (ROI) in Question and Answer no. 25; the prisoner stated that sexual intercourse was initiated by the victim. When answering the question put to him by the Police the prisoner in reply said the following: “.....Victim (unnamed) came and told me to go with her into the house and sleep and I told her no, it’s 4:00pm and your mother and others will come. I told her three times and got tired and came out of the house. She came and repeated the same thing three times again. I refused and came out of the house and she called me and I said no, a couple were cutting grass outside and will hear you calling and will inform your mother. I went in and she slept and I came and stood on the door way and she called and I went in and she removed her clothes and slept on the bed and opened her legs and she told me to come quickly they might come. I went and unzipped my trousers and inserted my penis into her vagina and sexually penetrated her. I thought of her parents so I left her and came outside. She asked me if I have ejaculated and I said yes already and I came out. I came and stayed at the kitchen and she came with a rice and I cooked it and she went to the compound.”
12. The prisoner repeated the same statement again in the Pre-Sentence Report at Paragraph 12.3 at Page 4. This statement by the prisoner was not challenged by the prosecution.
13. In Saperus Yalibakut v The State (2006) SC 890 the Supreme Court held amongst others that in plea cases; “...the offender must be given the benefit of any reasonable doubt and if there are contentious facts in which there is no agreement the Court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused”.
14. Evidence also revealed that the sexual relationship between the prisoner and the victim happened over a period of time but the victim never reported the matter to any of her family members or to the authorities for reasons only known to herself. There is no evidence to suggest that threat was issued by the prisoner or that favors were held out to procure sex. The victim’s family only found out after questioning her when they noticed that her behaviour started to change. According to the victim’s mother, the prisoner has been treating the victim as his wife and would swear and abuse her when he is not happy. All these prompted the victim’s family to question the victim and eventually she admitted to having a relationship with the prisoner.
15. In deciding an appropriate sentence the Court must address its mind to four (4) overarching principles on sentencing: Firstly, “purpose of sentence” - to achieve an outcome that reflect the intent of the law for such crimes; secondly, the “principles of sentencing” - (i.e. deterrence (general & specific), retribution, rehabilitation and restitution) - the established principles that guides the Court to impose a sentence that fits the crime and also reflect the views of society towards such crimes; thirdly, “sentencing options” - range of options available to Court including non-custodial sentences and finally, “uniformity in sentencing” - to ensure parity and consistency in the sentencing process based on case precedence, current sentencing trend for like cases including sentencing tariffs developed by the Courts over the years.
16. On the first principle, the intention of the legislature was made clear for the offence of sexual penetration of a child under the age of 16 when it prescribed maximum penalty, subject to Subsections (2) and (3) of section 299A (1) of the Criminal Code an imprisonment for a term not exceeding 25 years.
17. Secondly, with regards to the principles of sentencing-deterrence (general & specific); retribution and rehabilitation) it calls for careful observations by the Court in relation particularly to the effects of the punishment itself and the impact it would have both on the offender himself and other would-be offenders and the society as a whole. The offence of sexual penetration of under age children is not only unlawful but is also against societal norms on accepted standard of morality. This type of offence and other sexual offences of similar nature are becoming too prevalent in the country in recent times. The country has lost its moral compass and this has contributed to the general break down in law and order. The Court must impose a sentence that has a deterrent effect to both the offender himself and the other would-be offenders that there is no place for sexual deviants in our communities.
18. Thirdly, on the sentencing option, I have considered the degree of the seriousness of the offence. The big age difference of some 38 years between the prisoner and the victim and the continued sexual penetration perpetrated by the prisoner makes this an aggravated sexual penetration. There was a breach of trust in that the prisoner was accommodated by the victim and his family in their family home. The prisoner took advantage of the victim’s tender age to satisfy his sexual lust. The Court must impose a sentence that is adequate and proportionate to the gravity of the offence taking into account all the relevant factors and circumstances. In the present case, I am of the view that a custodial sentence is the most appropriate penalty. However, the mitigating factors and the extenuating circumstances sways in favour of the prisoner and for this reason, a partial suspension of the sentence would, in my opinion, be more appropriate.
19. Finally, with respect to the uniformity on sentencing, I have been referred by Counsels to a number of comparable case laws in relation to penalty for similar offences which I find to be useful. I refer to some of them below:
(i) The State v Engi Hendrix Cr No. 485 of 2012
20. The offender, Engi Hendrix was charged with one count of sexual penetration of a victim aged 5 years old in a position of trust and dependency. In that he was an uncle to the victim and had lived with her and her parents at their house.
21. On a guilty plea, he was sentenced to 10 years which was partial suspended by 5 years.
(ii) The State v Raumo [2007] N4983
22. The offender who was 25 years old sexually penetrated the victim aged 6 inserting his finger into her vagina. He took her to the river then to a breadfruit tree. He told her to lie down and he inserted his finger into her vagina. He also attempted to penetrate her with his penis.
23. He was sentenced to 10 years. None of his sentence was suspended.
(iii) State v David Awi (2016) N6563
24. The offender pleaded guilty to sexually penetrating a 6 year old girl with whom he had an existing relationship of trust. The offender was 22 years old and the time of the offence. There was an age difference of 16 years. The victim also contracted sexually transmitted disease. The offender was sentenced to 10 years imprisonment.
(iv) State v Tiama Esrom (2006) N3054
25. The offender pleaded guilty to sexual penetration of a 9 year old girl who was his granddaughter. The offender was 50-60 years old. There was a big age difference and breach of trust. He was sentenced to 12 years imprisonment.
26. The prisoner is 53 years old and comes from Kamlawa village, Finschafen, Morobe Province. He is married with four grown up children and all of them live in the village. He is related to the victim and her family as they all come from Finschhafen. He resides with the victim and his family at 3 Mile Block, Lae. He expressed remorse and told the Court that he was very sorry for what he did. He has plans to compensate the victim with K5,000.00 when he finds the money. He will return back to his village in Finschafen after he completed his time in prison.
27. The Supreme Court in Sabiu v The State (2007) SC866 held that, for sentencing purposes, the starting point in sexual penetration of victims under the age of 12 years is 15 years imprisonment. The Supreme Court upheld an appeal by the appellant against a sentence of 17 years imposed on him after he pleaded guilty to sexually penetrating a child under the age of 12 years. The Supreme Court held that:
“We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than 15 years imprisonment.’’
28. However, in The State v Jessie Chadrol (2011) N 4648, his Honour Batari, J. held that the proper approach to deal with sexual penetration cases was to set a sentencing range as opposed to a definite starting point. His Honour then proposed a sentencing range for category two cases (where victim is less than 12 years) at 7 – 25 years generally and 25 years to life imprisonment for near worst to worst cases. His Honour held that:
“Where the victim is under 12 years or circumstances of aggravation like, extreme young age of the victim or breach of trust or persistent sexual penetration are present, a starting point of 15 years has been suggested by the Supreme Court in Stanley Sabiu v The State.
In my view, the proper approach is to consider a term within the range of sentences for aggravated sexual penetration. The range will be slightly higher than that for category one offences. I suggest a general range of 7 to 25 years. In extreme cases of seriousness with no mitigating factors; sentences from 25 years to life may be justified.”
29. There are two opposing views with regard to the starting point on sentencing. One by the Supreme Court in Sabiu (supra) where it stated that the starting point should be 15 years in cases involving victims under the age of 12 years whilst in the recent National Court decision, it was proposed that a sentencing range of between 7 – 25 years be imposed for victims under 12 years rather than a definite starting figure. I note that the two above cases relate to sexual penetration involving victims under the age of 12 years. I assumed therefore, that it covers the both age groups in the absence of any specific tariffs for victims under the age of 16. However, the difference between the two is the respective penalties prescribed for each category of victims. Sexual penetration of victims under the age of 16 years carries a maximum of 25 years imprisonment pursuant to s 229A (1) whilst sexual penetration of victims under the age of 12 years carries a life imprisonment pursuant to s 229A (2). There is a huge difference between these two categories of victims in terms of the prescribed maximum penalty.
30. Therefore, there is a need to set a new and sentencing tariff for sexual penetration of a child under the age of 16 years. In that regard, for victims under the age of 16 years, I propose a range of between 5 – 10 years at the lower end of the sentencing scale and 10 – 15 years at the mid-range and 15 – 25 years at the extreme end for near worst to worst cases with no mitigating factors or extenuating circumstances.
31. I based this proposal on the widely held belief backed up by some medical evidence that due to the present changing lifestyles, it is not unusual to find girls who may have already reached their puberty and are sexually active early in their teenaged years between 14 to 16 years.
32. The head sentence is determined from the factual circumstances of the case being; the aggravating and mitigating factors and
circumstances including the extenuating circumstances which I have already stated above.
33. Having considered all the relevant factors, I am of the view that this case falls at the lower end of the sentencing scale that attracts a sentence of between 5 – 10 years imprisonment.
34. I sentence the prisoner to Six (6) years imprisonment.
35. I deduct Twelve (12) months for the pre-trial custody period.
36. I further order that the prisoner to serve Three (3) years imprisonment.
37. The balance of Two (2) years to be suspended with the prisoner entering into his own recognizance and to be of good behaviour bond for a period of Two (2) years with strict conditions.
Orders accordingly,
---------------______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Applicant
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