N8075

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1164 OF 2018

THE STATE

v

KENNETH KAUKISA

Lae:	Numapo AJ
2019: 26th April & 21st October

CRIMINAL LAW – Particular offence – Sexual Penetration of a Child under 16 years – Guilty Plea –Aggravating and Mitigating factors–Extenuating Circumstances - Sentencing Discretion – Non- Custodial Sentence.

Held:

(i)	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.

(ii)	The small age difference between the offender and the victim and the on-going relationship they had lessens the seriousness of the offence.

(iii)	The prisoner’s demeanour in Court and the positive attitude he has towards the offence made him suitable for probation. 

(iv)	Accused is sentenced to 5 years imprisonment less the pre-trial custody period.

(v)	The remaining sentence to be wholly suspended.

(vi)	The prisoner entering into his own recognizance and be placed on good behaviour bond for a period of 2 years with strict conditions to be supervised by the Probation Office.  

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
The State v Engi Hendrix; Cr. No 485 of 2012
The State v Kiku Mercy Sang; Cr. No. 139 of 2018 N7419

Counsel:

J. Done, for the State
S. Katurowe, for the Defence

SENTENCE

21st October, 2019

1.      NUMAPO AJ: This is a decision on sentence.  The Accused KENNETH KAUKISA of Pararoa village, Bulolo District pleaded guilty to one count of sexual penetration of a child under the age of 16 years, contrary to section 229A (1) (3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

A.	FACTS

2.      The brief facts to which the Accused pleaded guilty were that; on the 12th of February 2018 between 7pm – 8pm the Accused was at Nauti village with the victim (named).  He was under the influence of alcohol at the time and confronted the victim and sexually penetrated her with his penis into her vagina.  She returned to her house a little later and when questioned by her mother she told her what the Accused did to her.  The mother then reported the matter to the Police and the Accused was arrested and charged.  The Accused and the victim are related as cousins.  At the time the offence took place the victim was 12 years old.

B.	CHARGE

3.     Section 229A (1) (2) (3) 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. 

C.	MEDICAL REPORT

4.     The medical examination carried out on the victim revealed the following:

(a)	Lower abdominal pain
(b)	Frequency in urinating
(c)	Painful when urinating
(d)	Watery discharge from her vagina
(e)	Pus in the urine
(f)	Signs of bruising on the genital area.

5.     The Medical Report is consistent with what the victim told the Health Extension Officer.

D.	CATEGORIES OF PENALTIES

6.     There are three categories of penalties prescribed under s 229A for the offence of sexual penetration.  The first category 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 third 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.

7.     The present case falls under the third category in that the victim was under the age of 16 years, being 12 years old at the time of the offence.  The Prisoner is related to the victim as a cousin.  Both lived together in the same village.  There is an existing relationship of trust between the Prisoner and the victim at the time of the offence. 

8.     The Supreme Court in Goli Golu v The State [1979] PNGLR 653 held that maximum penalty is reserved for a 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 victimsuffered 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) (3) of the Criminal Code.

E.	AGGRAVATINGAND MITIGATING FACTORS AND EXTENUATING CIRCUMSTNACES

11.     The aggravating and mitigating factors and circumstances of the present case are as follows:

1.	Aggravating factors and circumstances:

(i)	Breach of trust– The Prisoner isrelated to the victim as her cousin brother and all lived together in the victim’s familyhouse at Nauti village.  There was some degree of trust, authority and dependency that was abused.

(ii)	The offence of sexual penetration of a child is becoming too prevalent in recent times.

2.	Mitigating factors are:

(i)	Prisoner is a first time offender.

(ii)	He pleaded guilty early.

(iii)	He was very remorseful and apologized for what he did.

(iv)	He co-operated well with the Police and admitted to committing the offence at the earliest opportunity in his Record of Interview.

(v)	No weapon was used.

(vi)	No threats of violence were issued against the victim.

3.	Extenuating Circumstances:

The Pre-Sentence Report (PSR) stated that the Prisoner had a boy/girl relationship with the victim for quite some time prior to him committing the offence.  After the incident he was told to marry the victim through an arranged customary marriage under the custom of the Watut people which permits cousins to marry. Customary obligations formalizing the marriage between the Prisoner and the victim have been completed.  The victim is currently living with the Prisoner as his wife and is happily married.  The marriage is recognized by all parties including the parents of the victim.  The father of the victim asked that the Prisoner be given probation so he could look after his daughter, now the Prisoner’s wife.  Furthermore, that K2,000 compensation has been paid by the Prisoner to the victim and her family which is also considered to be part of the bride price.

The Prisoner expressed remorse and was sorry for what he did.  He has accepted the victim as his wife and has since been living with her whilst on bail to attend his case.  He plans to find employment soon after this case is over and look after her and start a family.  He completed his secondary schooling at Grace Memorial Secondary in Wau in 2011 and has a certificate.

The Probation Office recommended for a non-custodial sentence for the Prisoner and that he be placed on probation under the supervision of the Probation Office in Bulolo.

F.	APPROPRIATE SENTENCE 

12.     There was a breach of trust in that the prisoner was accommodated by the victim and her family in their family home.  The Prisoner took advantage of the victim’s tender age to satisfy his sexual lust.  However, in the present case the mitigating factors and the extenuating circumstances seem to outweigh the aggravating factors based on the PSR which recommended for a non-custodial sentence.  In the present case, after having regard to all the relevant factors and considerations, I am of the view that a suspended sentence is the most appropriate form of punishment in this case.

13.    Section 19 (6) of the Criminal Code provides for suspended sentence that can be given at the discretion of the Court.  The grounds under which suspended sentence is given is discussed in the Supreme Court case of Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91.  In that case the Supreme Court sets out three (3) broad categories on suspended sentence.  The categories are not exhaustive and are follows:

(i)	Where suspension will promote personal deterrence, reformation or rehabilitation of the offender;

(ii)	Where suspension will promote repayment or restitution of stolen money or goods; and

(iii)	Where imprisonment would cause an excessive degree of suffering to
aparticular offender, for example because of his bad physical or mental condition.

14.     I consider category (i) and (iii) of Tardrew (supra) are applicable to the present case.  And I say this for the following reasons:

(i)	The circumstances have changed and the victim is now living with the Prisoner as his wife after they were married according to the custom which was accepted by all parties. 

(ii)	I observed the Prisoner’s demeanour in Court and the positive attitude he has towards the offence and consider him to be a person with some potential to reform himself and become a good law abiding citizen. I want to give him that second chance.

(iii)	If I send him to Prison it would cause hardship to his wife (victim) and would not serve any useful purpose.

(iv)	I took into account the small age difference of 11 years between the prisoner and the victim and the on-going relationship they had lessens the seriousness of the offence.

15.     I referred to some comparable case laws on suspended or partially suspended sentence below:

(i)	The State v Engi Hendrix Cr No. 485 of 2012

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. 

On a guilty plea, he was sentenced to 10 years which was partially suspended by 5 years.

(ii)	The State v Kiku Mercy Sang Cr. No. 139 of 2018 N7419

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 had an on-going sexual relationship with the victim over a period of time.

He was sentenced to six (6) years imprisonment. Two (2) years of the sentence was suspended and the prisoner was given a good behaviour bond with strict conditions. Prisoner was ordered to serve the remaining three (3) years after one (1) year pre-trial custody period was suspended.

G.	PRISONER’S BACKGROUND AND ALLOCUTUS

16.     The Prisoner is 23 years old and comes from Pararoa village, Bulolo District, Morobe Province.  He is not married and is related to the victim and her family as they all come from the same area.  He resides with the victim and her family at Nauti village in Bulolo. He expressed remorse and told the Court that he is very sorry for what he did.  He has compensated the victim and her family with K2,000. He plans to get a job and look after his new wife (victim).

H.	HEAD SENTENCE

17.     The head sentence is determined from the factual circumstances of the case being; the aggravating and mitigating factors circumstances including the extenuating circumstances of which I alluded to above.

18.     I am of the view that this case falls at the lower end of the sentencing scale of between 5 – 10 years imprisonment. 

I.	DECISION

(i)	I sentence the Prisoner toFive (5) years imprisonment.

(ii)	I further order that the sentence to be wholly suspended with the Prisoner entering into his own recognizance and be placed on good behaviour bond for a period of Two (2) years with strict conditions to be supervised by the Probation Office.

(iii)	Bail refunded forthwith.

Orders accordingly.
______________________________________________________________________________
Public Prosecutor:		Lawyers for the State
Public Solicitor:  		Lawyers for the Applicant