Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Toivat [2019] PGNC 208; N7887 (20 June 2019)

N7887

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 549 of 2017

THE STATE

-v-

ROBERT TOIVAT
Defendant

Kokopo: Kangwia, J
2019: 18 & 20 June

CRIMINAL LAW – sentence – plea of not guilty – conviction after trial on two charges of sexual penetration – aggravating and mitigating factors considered – prisoner sentenced to 15 years in hard labour less time spent in pre trial custody – s229A (1) (2) & (3) Criminal Code Act

Cases Cited:

Stanley Sabui v the State (2007) SC 866;
State v Elly Malpa (2009) N3734;
State v Gorai (No.2) (2016) N6295;
State v Kaminiel Okole (2006) N3052.

Counsel:

J. Batil, for the State.
N. Katosingkalara, for the Defence.

20^th June, 2019

1. KANGWIA, J: Robert Toivat is appearing for sentence. He was convicted after a trial on two charges of sexual penetration under s 229A (1) (2) & (3) of the Criminal Code Act.
   
2. The brief facts are these; The accused is an uncle to the victim. The State alleged that in the night between 1^st and 31^st July 2016 the accused entered the kitchen where the victim was asleep and sexually penetrated her vagina. In the morning of the next day the accused took the victim into the kitchen and introduced his penis into her mouth. The victim was 8 years old at the time of the incident.
   
3. The accused is 20 years old and single. He was 17 years when he committed the offence, He is 6^th out of 7 siblings. His parents are still alive. He is educated to grade 8. He was in school when arrested. He is unemployed, and a member of the United church. He has no prior record of any conviction.
   
4. On his allocatus the prisoner said.
   

” I apologize for what happened to the small girl and to her family. I ask for leniency with a light sentence to get back to school and settle the matter out of Court. The victim’s relatives were in favor of settlement under custom which should be considered.”

5. On his behalf Mr. Katosingkalara submitted the following as mitigating factors;
   
   • - the prisoner was a first-time offender.
   • - He was a juvenile when he committed the offences.
   • - No weapons were used and no violence was applied.
   • - No sexually transmitted illness was sustained and
   • - he apologized with expression of remorse on his allocatus.
     
6. An extenuating factor present was that the victim was earlier sexually penetrated by two other males who are now serving prison terms of 16 and 11years each. Therefore, any injury sustained by the prisoner should not be solely attributed to the prisoner who sexually penetrated the victim’s vagina only once.
   
7. While citing a number of cases whose sentences ranged from wholly suspended sentences to high custodial sentences it was submitted for the defence that a sentence between 7 and 10 years with deductions and suspensions was appropriate.
   
8. On behalf of the State Ms. Batil submitted that a sentence of 10 to 18 years for each offence to be served concurrently would be an appropriate sentence.

While referring to the sentencing guidelines in Stanley Sabui v the State (2007) SC 866 as appropriate guidelines in the present case the aggravating factors to be considered in the present case were;

- There was a huge age difference of 9 years. The victim was 8 years at the time of the crime
- A serious breach of trust occurred where the prisoner was an uncle to the victim
- Victim will suffer psychological trauma
- The crime was repeated one after the other to hold a trial
- Offender did not surrender to police
- His denial incurred time and expenses
- No genuine remorse was shown
- Offence was prevalent.

9. While conceding that he was a first-time offender with no prior conviction a custodial sentence was appropriate. They then referred the Court to a number of cases as comparable in determining a sentence. From the cases referred to the sentences ranged between 8 years to 22 years. Because of the totality principle a concurrent sentence between 10 and 18 years was appropriate.
   
10. This is a case involving sexual penetration of the vagina and mouth of the victim. It is suspected that the prisoner was one of a number of offenders who committed similar offences against the same victim.
    
11. On a view of the cases referred to by both counsel it is apparent that sentences issued by the Courts are varied. This could be attributed to the facts and circumstances of each case and an exercise of sentencing discretion. It is safe to say that sentences for all sexual offence have increased greatly.
    
12. In light of the submissions of counsel I consider various factors as relevant in this matter. The prisoner is a relative of the victim being the brother of the victim’s father. Offences of any kind against relatives brings animosity, hatred, distrust, ignorance and breach of family relationship itself.
    
13. As to compensation I consider that it should not be at the behest of the Court. The Court should not be brought into family relationships to help run so to speak the family relationships.
    
14. The offences like the present case were committed in existing family relationship situations. In such instances issue of compensation or general reconciliation should originate from within the family relationship. Family relationships should be utilized to initiate compensation or other reconciliation issues.
    
15. The combined effect of the two offences the prisoner is charged is that the prisoner is facing a maximum prescribed penalty of life imprisonment. However, I agree with counsel the maximum prescribed penalty should be reserved for the worst type of the offence. The present case does not fall into the worst category of sexual penetration.
    
16. I accept the submissions of both Counsels as relevant and consider that the mitigating factors operate to minimize what could be a higher sentence while the aggravating factors stand to avert unnecessarily low sentences.
    
17. I am of the view that this case falls into the serious category of sexual penetration cases. Both counsel have referred to the Court a number of appropriate sentences imposed by the Courts that this Court could consider in the sentence to be imposed. The cases demonstrate the sentencing trend of the Courts in sexual penetration cases. I refer only to the following cases to give an indication of the sentences imposed by the Courts for sexual penetrations cases involving victims under 16 years;
    
18. In the State v Gorai (No.2) (2016) N6295 the prisoner was sentenced to a cumulative sentence of 22 years on two counts of sexual penetration of a 06-year-old child.
    
19. In the State v Elly Malpa (2009) N3734 the Prisoner was sentenced to a cumulative sentence of 14 years on two counts of sexual penetration on a 12-year-old blood cousin female.
    
20. In the case of the State v Kaminiel Okole (2006) N3052 the Court sentenced the prisoner to as sent to a cumulative sentence of 17 years on two counts of sexual penetration.
    
21. In the present case the aggravating factors outweigh those in mitigation. The offences were committed one after the other on two consecutive days. The victim was a juvenile of tender age. There was no restraint displayed and a serious breach of trust was caused as a result.
    
22. Despite the existence of an allegation of similar occurrences to the victim by others, that did not confer any right on the prisoner or anyone else for that matter to do what he did. Lust took precedence. Deterrence must be the only remedy available to possible victims and to preserve society from moral decay and disintegration. Discount in sentencing can be available to a person who pleaded guilty early. That is not the case here. On the back of the considerations
    
23. Referred to I consider that a custodial sentence is appropriate.
    
24. I therefore sentence the prisoner in the following manner:
    
    1. He is sentenced to 12 years imprisonment for the first count of sexual penetration through the victim’s vagina.
    2. He is sentenced to 15 years for the second count of sexual penetration through the victim’s mouth.
    3. The first sentence shall be served concurrently to the Second sentence.
    4. The total sentence the prisoner shall serve is 15 years imprisonment.
    5. Any period of time spent in custody pending trial and sentence shall be deducted and the prisoner shall serve the balance at CS Kerevat.
    6. His bail shall be refunded

__________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence