N8457

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 235 OF 2019

THE STATE

v

ELVIS MARTIN

Kimbe: Numapo J
2020: 18th June & 06th August

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)	    Even in plea cases the court is duty-bound to carefully examine the evidence in its entirety including the factual circumstances of the case itself before deciding on the appropriate sentence.

(ii)	    The extenuating circumstances in general, has, in my view, lessen the seriousness of the offence so much so that incarcerating the prisoner would, in the circumstances, be harsh and unfair on him.

(iii)	The small age difference of 5 years between the offender and the victim and the on-going boy/girlfriend relationship they had, lessens the seriousness of the offence.

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

(v)	Prisoner sentenced to 3 years imprisonment less the pre-trial custody period.

(vi)	The remaining balance of sentence to be wholly suspended with conditions. 

(vii)	The prisoner to be placed on probation for a period of 1 year 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
State v Kiku Mercy Sang Cr. No. 139 of 2018 N7419
State v Tiama Esrom (2006) N3054
State v Hebrus Amon [2018] N7634
State v Kenneth Kaukisa [2018] N8075 

Counsel:

A. Bray, for the State
D. Kari, for the Defence

SENTENCE

06th August, 2020

1.      NUMAPO J: This is a decision on sentence. The accused ELVIS MARTIN of Denkaso village, Dei Council, Western Highlands Province 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. He was convicted accordingly. 

A.	FACTS

2.     The brief facts to which the accused pleaded guilty were that; on 12 November 2018 the victim (named) boarded a PMV bus travelling towards Kimbe town. The accused was working as a bus crew at the material time. It was late in the afternoon.

3.     The victim stopped the bus at Kumbango Oil Mill Compound and got off. The accused also got off the bus as he was knocking off for the day. The accused followed the victim and threatened her with a knife and forced her into the Oil Palm Plantation and forced her to remove her clothes and he sexually penetrated the victim twice at different locations within the same area by inserting his penis into her vagina. The victim was aged 15 years at the time according to Medical Report.

B.	CHARGE

4.     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

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

(a)	Bruises on her labia and vagina
(b)	Hymen was seen to be intact
(c)	Vagina and cervix swab taken for laboratory analysis did not show presence of sperm cells.

6.     The medical report is consistent with what the victim told the doctor.

D.	CATEGORIES OF PENALTIES

7.     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.

8.     The present case falls under the first category in that the victim was under the age of 16 years, being 15 years old at the time of the offence. 

9.     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 apply to other offences as well. 

10.     For sexual penetration offences, the following factors must be present for it to be considered as a worst type offence to attract the maximum penalty prescribed by law:

(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 the victim becomes pregnant as a result of been raped.

(viii)	Where there is evidence of a serious breach of trust and violation of relationship and dependency.

(ix)	Where the offender is a repeat offender with prior convictions of serious offences such as murder, rape or armed robbery.

11.    Both the State and Defence submitted that the present case does not fall under the category of worst type offence 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

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

1.	Aggravating factors and circumstances:

(i)	Threats used to commit the offence
(ii)	The tender age of the victim.

2.	Mitigating factors are:

(i)	      Pleaded guilty early
(ii)	      Prisoner is a first-time offender.
(iii)	Was remorseful.
(iv)	Co-operated well with the Police and admitted to committing the offence at the earliest opportunity in his Record of Interview (ROI).

3.	Extenuating Circumstances:

13.    The extenuating circumstances that I find contained in the Police Record of Interview (ROI), the victim’s statement and the Pre-Sentence Report (PSR) is that the prisoner had an on-going boy/girl relationship with the victim for quite some time prior to committing the offence. In his ROI, the prisoner admitted to having sexual intercourse with the victim on the day in question.  He also admitted having sex with the victim for at least eight times in the past and that this was not the first time he had sex with her (Question & Answer 22 – ROI). After having sex with her, he took her to his house at Aling Settlement and told his sister to cook dinner for the victim and they spent a night together in his house. He never had sex with her in his house. The next morning he took the victim to Mosa then onto Kumbango and later sent her home. According to the prisoner, he did not use any threats or force to have sex with the victim. He claimed the victim is his steady girlfriend and considered her as his ‘wife’. Whenever she needs money he would support her. In his answer to Question no 19 of the ROI, he denied threatening the victim and said the victim lied because she was assaulted by her relatives and forced to report the matter to the police. 

14.     This assertion by the prisoner seem to find some support in the victim’s own statement to the police that after they had sex in the plantation she went with the prisoner to his house at Aling Settlement and spent the night there. The next day the prisoner took her to Kumbango and she went home. Her family questioned her where she was last night and when she told them where she spent the night and with whom, they belted her up and took her to Mosa clinic the next day for checkup.

15.     There was nothing in the victim’s statement indicating that she was distressed or traumatized by what happened. What intrigued me most is that the victim did not make any attempt to run away from the prisoner nor did she put up a fight or struggle to save herself as would be expected in a rape case. She had the opportunity to raise the alarm and seek help or report the matter to the Settlement Committee at Aling Settlement or to anyone who could help including reporting the matter to the police but she did not do any of these. She spent the full night and the first part of the morning at Aling Settlement with the prisoner and his sister before the prisoner took her to Kumbango for her to go home to her family. There is no evidence to suggest that she was forced into following the prisoner to his house at Aling Settlement and to spend a night there with him after the incident at the plantation. She did that on her own free-will. 

16.     I am beginning to doubt if this was indeed a rape case per se or a border-line consensual sex given the circumstances of their relationship which was not denied by the victim. The later seem to be the case.

17.     This type of story is not new and I have dealt with similar cases in the past. See for example; State v Kenneth Kaukisa [2018] N8075. In situations like this, the Court must be cautious and consider the factual circumstances of the case in its entirety even in plea matters before deciding the appropriate penalty. Victims in such situations most often report the matter out of fear and in some cases to please their families or relatives rather than on their own free-will. 

18.     Another factor worth mentioning is that the medical report showed no serious injuries to the victim’s genital area except for some minor bruises around the vaginal area which is quite normal of a person after a sexual encounter. According to the medical report, the hymen is intact and not torn which means the victim has had sex in the past and has had some experience in her sexual life. Furthermore, there were no traces of sperm cells in her vagina. This is interesting, as according to the prisoner in his answer to question 14 in the ROI, he stated and I quote: “It’s like we used to date outside and she might get pregnant so I took her to Aling and she slept with my sister.” (End of quote). Putting one and one together, the assumption therefore, is that, for fear of getting her pregnant, he could have ejaculated outside and not inside her vagina or that he could have used a condom and that is why there was no presence of sperm cells in the vagina. And if one is to believe what the prisoner said in his ROI that he has had sex with the victim for about 8 times in the past that would have been enough to get her pregnant by now if they did not practice safe sex. Again, we can only speculate but this fact could not be discounted if the court is to believe what the prisoner said. 

F.	PRE-SENTENCE REPORT AND ALLOCUTUS

19.    The prisoner is 20 years old, single and comes from Dei Council in the Western Highlands Province. He lives with his cousin brother at Aling Settlement, on the fringes of Kimbe Town. He is employed as a bus crew and earns K200 a forthnight. 

20.     The prisoner expressed remorse and is sorry for what he did and is willing to pay compensation to the victim if ordered by the Court. The victim wants the prisoner to apologize and compensate her.

21.     The Probation Office assessed the prisoner to be a suitable candidate for probation and do not consider him as a threat to the victim or the community at large. The community does not object to the prisoner been released back into the community.

22.     In his allocutus the prisoner said:

“I say sorry to the Court and all the lawyers in court. I seek the Court’s mercy and ask for a good behaviour bond or probation. That is all.”

G.	APPROPRIATE SENTENCE 

23.     Even in plea cases the court is duty-bound to carefully examine the evidence in its entirety including the factual circumstances of the case itself before deciding on the appropriate sentence. Many a times the court overlooked these factors in plea cases simply because the offender has pleaded guilty and therefore, there is no utility in carefully examining the evidence in deciding the penalty. Generally speaking, any penalty imposed must fit the crime. The evidence tendered to court following a plea contains the relevant factors and circumstances from which the court would ascertain the gravity of the offence, the degree of culpability, the aggravating and mitigating factors and circumstances, the extenuating circumstances, de facto provocation (if any), act of self-defense (to a certain degree) etc. that mitigates the offence and goes in favour of the prisoner. All these must be taken into consideration so that a sentence imposed is fair, just and appropriate.

24.     Given the factual circumstances of the case, I am of the view that a suspended sentence is most appropriate in this case. The extenuating circumstances in general, has in my view, lessen the seriousness of the offence so much so that incarcerating the prisoner would, in the circumstances, be harsh and unfair on him.

25.     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.

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

(i)	The circumstances of the case is such that suspension of the sentence would, in my view, be most appropriate as it would promote personal deterrence and rehabilitation. It will also enable the offender to pay compensation and formally apologize to the victim.  

(ii)	I took into account the small age difference of 5 years between the prisoner and the victim and the on-going boy/girlfriend relationship they had, that in my view, lessens the seriousness of the offence.

(iii)	I observed the prisoner’s demeanour in Court and the positive attitude he has towards the offence and considered him to be a person with some potential to reform himself and become a good law-abiding citizen. He is young and a first-time offender and should be given every opportunity to reform himself.

27.     I referred to some comparable case lawson sentence below:

(i)	State v Kenneth Kaukisa [2018] N8075

The Offender 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 accused was 12 years old.

Offender was sentenced to 5 years imprisonment which was wholly suspended with conditions.

(ii)	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 partial suspended by 5 years.

(iii)	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 sentencedto six (6) years imprisonment. Two (2) 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.

(iv)	State v Tiama Esrom (2006) N3054

The offender pleaded guilty to sexually penetrating the victim aged 9 years and the prisoner was aged between 50 – 60 years. The victim is the offender’s granddaughter. The offence was aggravated by an existing relationship of trust, authority and dependency.  He was sentenced to 12 years imprisonment. 

(v)	State v Hebrus Amon [2018] N7634

Offender pleaded guilty to sexually penetrating a 9 old girl by inserting his penis into her vagina. The Offender followed the victim to the garden and grabbed her from behind and tackled her to the ground and forcefully removed her clothes and sexually penetrated her until he ejaculated. He was sentenced to 12 years imprisonment. 

H.	DECISION

28.     Having considered the factual circumstances of the case being; the aggravating and mitigating factors circumstances including the extenuating circumstances of which Ialluded to above.

29.     I am of the view that a suspended sentence is most appropriate in this present case.

I.	SENTENCE

(i)	I sentence the prisoner tothree (3) years imprisonment.

(ii)	I deduct one (1) year and eight (8) months for the pre-trial custody period pursuant to section 3 (2) of the Criminal Justice (Sentences) Act 1986.

(iii)	Prisoner to serve the balance of one (1) years and four (4) months IHL.

(iv)	I further order that the balance of one (1) year and four (4) months sentence to be wholly suspended on the conditions that:

(a)	 The prisoner to pay a sum of K1000 as compensation to the victim within 30 days of this Order pursuant to section 2 of the Criminal Law (Compensation) Act 1991; and

(b)	The prisoner is to be placed on probation for a period of one (1) year with strict conditions to be supervised by the Probation Office.

(c)	The payment of compensation to be witnessed and supervised by the Probation Officer and the Community Leaders of Aling Settlement.

(d)	Failure to pay compensation will result in the prisoner serving his full term of one (1) year and four (4) months IHL.

Orders accordingly.

Public Prosecutor:		Lawyers for the State
Public Solicitor:  		Lawyers for the Applicant