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State v Mankia [2019] PGNC 108; N7823 (24 April 2019)

N7823

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 103 of 2019

THE STATE

V

SEBASTIAN MANKIA
Kerevat: Susame, AJ

2019: 16, 18 & 24 April

CRIMINAL LAW – Sentence – Plea- Offence – Sexual Penetration Of A Child Under 12 Years Of Age - S.229a (1)(2) Criminal Code(Sexual Offences And Crimes Against Children)Act 2002 -

CRIMINAL LAW - Factors In Mitigation And Aggravation - Prisoner 60 Years Of Age – Victim 15 Years Old – Grand Father & Grand Daughter Relationship – Betrayal Of Trust –– Penal Penetration Of Vagina - No Weapons Used – No Physical Injuries – No Pregnancy – No Sexually Transmitted Disease Contracted – Victim Subject Of Sexual And Physical Abuse By Four Members Of The Same Family – Psychological & Mental Trauma –Prevalence Of Offence – Seriousness Of Offence

CRIMINAL LAW - 15 Years Head Sentence – 15 Years Is Imprisonment With Increase Considering Prisoner’s Old Age – Period In Custody To Be Deducted.

Cited Cases:
Goli Golu v The State [1988-89] PNGLR 653
Hindemba v The State [1998] PGSC 48
Setep v The State [2001] PGSC14
State v Penias Mokei (N0.2) (2004) N2635
Stanley Sabui v The State [2007] PGSC 24; SC866
The State v Awi (2016) N6563
The State v Biason Benson Samson [2005] N2799
The State v Emil Mankia CR No. 104 of 2019 unreported.
The State v Iran Gaira [2015] PGNC 44; N5965
The State v Nanas Libai [2015]N5767
The State v Ndrakum Pu – Uh (2005) N2949
The State v Ndrowoh [2016 PGNC 181; N6374,
The State v Peter Ania (unreported) CR N0. 627 of 2013

Counsel

Ms. L. Shanks, for the State
Ms. JM. Ainui, for the Prisoner

DECISION ON SENTENCE

24^th April, 2019

1. SUSAME, AJ: Prisoner is in court to receive his sentence. He pleaded guilty to a charge of sexual penetration of a child under 16 years of age with circumstances of aggravation contrary to s 229A(1)(3) of the Criminal Code( Sexual Offences and Crimes Against Children) Act 2002. Plea was affirmed on court being satisfied evidence in the court file established all elements of the charge.

Facts

2. I set out the Facts upon which prisoner was convicted. Prisoner is the father of Emil Mankia who has been convicted for sexually penetrating the same girl at their family home. Prisoner is about 60 years of age and is the grandfather of the girl. The girl was then 15 years of age and was in school doing her fifth grade.
   
3. During the month of September 2017 the victim went to live with the prisoner at the family home following the death of her mother. After two weeks of living with the prisoner the victim returned from the school one day at about 5pm and went into the house to sleep because she was tired.
   
4. The prisoner followed her into the room. He told her to lie down on the bed and remove her clothes and prisoner removed his clothes.
   
5. Prisoner opened the victim’s legs and inserted his erected penis into her vagina and had sexual intercourse with her until he ejaculated his sperm into her vagina. After he had sexual intercourse with her he told her not to tell his wife or he would end up in jail.
   
6. Again one Saturday night in February 2018 at about midnight the prisoner went into her room and woke her up. At the same time his wife appeared and nothing more occurred to the victim that night.
   
7. The following day the prisoner’s wife and daughter started assaulting the victim and she ran away to her grandmother’s house. Few days later she told her grandmother what had occurred and matter was reported to police.
   
8. In the record of interview with the police investigator, prisoner stated sometimes when he is making fire she comes and holds his buttocks, his front. Sometimes she takes off her laplap half way and shows him her breasts. That was why they assaulted her and she ran away. The prisoner admitted having sexual intercourse with her but stated she started it.

Allocutus

9. Prisoner said: I say sorry to the court. This is my first time in court. I have a family. I have 6 children, a block of land. Nobody to look after my block and children who go to school and hospital. I ask the court to have mercy on me and give me good behaviour bond. That’s all.

Submissions on Sentence.

10. Submissions were heard and have been considered. I will refer to them a bit later. First, the issue.

Issue

11. What is the appropriate sentence court should impose. First the offence.

Offence

S 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 Subjection (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 liable, subject to section 19, to life imprisonment.

12. The court is guided by the following:
    
    • Application of sentencing principles,
    • Established sentencing guidelines,
    • Factual merits of the case,
    • Prisoner’s personal characteristics,
    • Prevalence of the offence in society,
    • Factors in aggravation and mitigation,
    • Related decided cases.

Maximum Penalty

13. The offence carries the maximum life imprisonment penalty. Court may however, pass a sentence other than the maximum using powers under s19 Criminal Code Act. Maximum penalty can be considered if facts are very grave and places the case in the worst category. Otherwise, maximum should be reserved. (Goli Golu v The State [1988-89] PNGLR 653). In Goli Golu v The State (supra) Wilson J cited with approval factors to justify the maximum in the decision of Criminal Court of Appeal in R v Hodgson Unreported Judgment S, C, 137 25 October 1978). The factors are:

“1. Where the offence or offences are in themselves grave enough to require a very long sentence;

2. Where it appears from the nature of the offence or from the defendant’s character that he is a person of unstable character likely to commit such offences in the future; and

3. Where if the offences are committed the consequences to others may be specifically injurious, as in the case of sexual offences or crimes of violence.”

14. Those factors are not present to place the case in the worst category to attract the maximum penalty. Prosecution and defence have conceded to that.

Sentencing Guidelines in Sexual Offences.

15. Ms. Shanks urged the court to consider the lifelong effects/impact on the victims of sexual offences. She referred the court to Supreme Court authorities of Hindemba v The State [1998] PGSC 48 and Setep v The State [2001]PGSC14. The court takes note of the sentiments expressed and endorses them in agreement.
    
16. Attempts were made to formulate sentencing guidelines in sexual offences in few cases. Couple of them, State v Penias Mokei (N0.2) (2004) N2635 and The State v Ndrakum Pu – Uh (2005) 2949 which Ms. Ainui relied on. Seven questions were posed as a guide by the court in these judgments.
    
17. Cannings J later expounded the guidelines in the case of The State v Biason Benson Samson [2005] N2799 which Ms. Shanks referred the court to. The guidelines were endorsed by the Supreme Court in Stanley Sabui v The State [2007] PGSC 24; SC866. The guidelines are framed in 17 questions being asked, requiring an answer. The answers should determine the mitigating and aggravating features of the case. It will further indicate to the Court if mitigation factors outweigh the aggravating factors or not. The questions are:
    1. Is there only a small age difference between the offender and the victim?

2. Is the victim not far under the age of 16 years?

3. Was there consent?

4. Was there only one offender?

5. Did the offender not use a threatening weapon and not use aggravated physical violence?
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?

7. Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?

8. Was it an isolated incident?

9. Did the offender give himself up after the incident?

10. Did the offender cooperate with the police in their investigations?

11. Has the offender done anything tangible towards repairing his wrong, e.g. offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did?

12. Has the offender not caused further trouble to the victim or the victim’s family since the incident?
13. Has the offender pleaded guilty?
14. Has the offender genuinely expressed remorse?
15. Is this his first offence?
16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?”

18. In its deliberations of the appeal the Supreme Court in Stanley Sabui v The State (supra) considered the serious nature of this particular offence and suggested a head sentence of 15 years. And depending on any aggravating and mitigating factors in a particular case actual sentence be more or less than 15 years imprisonment.

19. Factors in mitigation and aggravation are about the same as identified in the son’s case (State v Emil Mankia). I set them out.

Mitigating factors

20. Counsels are in agreement with these factors. Prisoner pleaded guilty saving time and cost of running a trial. Prisoner cooperated with police and made early admissions in the record of interview. If I may add no weapons were used. Victim received no physical injuries. Prisoner did not make the girl pregnant. She contracted no sexually transmitted disease.

Aggravating Factors

21. Again parties are in agreement with these factors. Sexual abuse occurred within close family relations. Hence, there was betrayal of trust. There is a huge age difference of 45 year between the offender and the girl. Other factors that weigh against the prisoner are; Girl was subject to abuse more than one occasion. Girl never consented to the sexual abuses. Being young and vulnerable as she is, she succumbed to the prisoner’s forceful sex demands with little resistance. Prisoner expressed no remorse. He did nothing tangible in terms of payment of compensation or offer any public apology.

22. Counsels cited few judgments to assist the court. These are:

The State v Awi (2016) N6563, Liosi, AJ

23. Prisoner pleaded guilty. Prisoner aged 22 –child was 6 years old. Age difference of 16 years. Sexual penetration of vagina by penis – 10 years imprisonment - 3 years 7 months suspended for injuries sustained when police shot him during his apprehension.

The State v Iran Gaira [2015] PGNC 44; N5965, Toliken J

24. Prisoner pleaded guilty. Prisoner was 22 years of age – Child was 4 years old. Prisoner was living with the victim’s family – Digital penetration of vagina – Prisoner received sentence of 11 years imprisonment – 5 years suspended

The State v Nanas Libai [2015] N5767

25. Prisoner pleaded guilty. Prisoner 67 years old-girl was 11 years of age. Digital penetration of vagina. Reconciliation ceremony held and compensation paid. Expression of remorse genuine. Sentence of 7 years imprisonment wholly suspended with conditions as prisoner was an elderly man.

The State v Peter Ania (unreported) CR N0. 627 of 2013, Lenalia J

26. Prisoner sexually penetrated an 8 year old girl. Prisoner was a security guard at the school the girl attended. There was a serious breach of trust. No expression of remorse- no compensation paid. Prevalence of offence. Prisoner was sentenced to 16 years imprisonment.

The State v Ndrowoh [2016 PGNC 181; N6374, Gieta J

27. Prisoner pleaded guilty – First time offender - cooperated with police – no weapons used. Prisoner was father of the girl aged 10- sexual penetration of vagina by penis – Serious breach of trust – Prisoner was sentenced to 19 years imprisonment.

28. In the end, Ms. Ainui has submitted for a 10 years sentence and portion of the sentence to be suspended considering the prisoner’s old age.

29. On the other hand Ms. Shanks has submitted prevalence of the offence is continuously on the rise with most perpetrators known to the victims. That it was imperative courts impose sentences that will deter the offenders and potential offenders from committing such heinous crimes. An equally important sentencing consideration is the protection of vulnerable children. She asked court to impose a sentence of 20 years imprisonment for personal and general deterrence.

Court’s View

30. I endorse whole heartedly Ms. Shank’s submission. The court’s views are same as those expressed in the son’s case (The State v Emil Mankia CR No. 104 of 2019 unreported). The girl was subject of sexual and physical abuse by four members of the same family. The prisoner and his son sexually penetrated her on few occasions while the prisoner’s wife and daughter physically assaulted her when they found out about the sexual abuses. The court has a duty to protect children against perpetrators of such heinous crimes. Stiff deterrent sentences are necessary to bring the message across. Offenders and potential offenders must feel that the law is there to protect the wellbeing and interest of children and law will deal with them severely.

31. I repeated what I said in the son’s case:

“It is worth noting from the Judgements courts are approaching sentencing of offenders with firmness especially when sexual abuse of children occur within family relations in breach of trust relationship. This is reflected in the lengthy punitive deterrent sentences that are being imposed.

The prisoner and his father (son has also been convicted for sexually abusing the same girl) had no regard of the close family relations they had with the young girl. When the girl’s mother passed away they took her in giving her the assurance she would be fine except to be sexually abused by the uncle and the grandfather betraying the trust the girl had of them. When the prisoner’s mother caught his father attempting to go for another round with the girl in her room on one occasion she was assault by the mother and sister as if she was the perpetrator. As a matter of fact the young girl was subject of sexual and physical abuse by four members of the same family.”

32. Starting sentence for this case should also be 15 years. Should I go down lower or higher? The girl never suffered physical injuries. But will she live with the mental and psychological trauma of having been sexually and physically abused by the members of the same family for a long time

33. I consider that also weigh heavily against the prisoner. Seriousness of the offence, the prevalence of the offence and aggravating factors outlined makes the mitigating factors become less significant.

34. Had it not been for his old age of 60 years sentence would have gradually gone higher by additional 3 years. Court decided against that and considered 15 years is sufficient punishment considering prisoner’s old age.

35. Accordingly, prisoner is sentenced to 15 years imprisonment with light labour. Pre-trail custody period is to be deducted.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner