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State v Kaumu [2021] PGNC 263; N8978 (12 July 2021)

N8978

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 168 OF 2019

THE STATE

-v-

PAUL WAITI KAUMU

Lae: Kangwia J.

2021: 5^th May & 12^th July

CRIMINAL LAW – Sexual penetration of a cousin sister – serious case of abuse – - moral obligations absent – offence prevalent - serious effect on victim’s future life - Sentenced to 17 years

Cases Cited:

Stanley Sabiu v the State (2007) SC866
State v Esrom Tiama (2016) N3054
State v Katu Tapin (2017) N6626
State v Mokei (NO. 2) N2635
State v Amu Aru (2016) N6917
State v John Henry (2014) N5630
State v Paul Malken (2015) N6022
State v John Ritsi Kutetoa (2005) N2814
State v Lucas Yovura (2003) N2366
State v Taulaola Pokai (2020) N4215.

Counsel
P. Matana, for the State
G. Peu, for the Defence

12^th July, 2021

1. KANGWIA J: Paul Waiti Kamu is appearing for sentence after he was convicted on his guilty plea to one count of sexual penetration pursuant to s.229 (1) (2) & (3) of the Criminal Code Act (CCA).

2. The brief facts are these. The prisoner is the cousin brother of the victim. He resided with the victim’s family. On 15 October 2018 at 1.30 am the prisoner picked up the victim who was asleep in the living room and carried her to where he slept.

3. The prisoner removed her shorts and sexually penetrated her. She sustained injuries to her vagina. At the time of the offence the prisoner was 25 years old and the victim 9 years.

4. The prisoner is now 27 years old and married with two children. He is the 3^rd in a family of seven siblings. His parents are both dead. He has no formal education. He has no prior convictions.

5. On his allocutus the prisoner said, “ I am sorry for what I did. I ask the Court for mercy. The incident was between me and my cousin. I am in custody. I have wife and kids. I have been in custody for a long period of time. I ask for time to settle under custom. I ask for an order to transfer to the highlands as I have no family here. I ask for probation.”

6. The Pre-Sentence Report recommended that the Court exercise its discretion to impose a sentence. It also reported that the offender did not have the means to compensate the victim. He was a likely threat to himself and other small children.

7. On his behalf Ms Peu through a written submission suggested that a sentence of 12 years with deductions was appropriate. The mitigating factors were that the prisoner pleaded guilty to the charge, he expressed remorse, willing to pay compensation as the victim was related to him, he acted alone, he did not use any violence or use any offensive weapon, and he has no prior conviction.

8. It was submitted that guidelines in sentencing for sexual offences suggested by the Supreme court in the case of Stanley Sabiu v the State (2007) SC 866 were relevant for consideration. The Court was further referred to the following cases as similar and the sentences imposed as relevant for this case.

9. In the case of the State v Esrom Tiama (2016) N3054 the prisoner who pleaded guilty to sexual penetration on a nine-year-old victim in an existing trust relationship was sentenced to 12 years imprisonment with suspensions.

10. In the State v Katu Tapin (2017) N6626 the prisoner who pleaded guilty to one count of sexual penetration on a 13-year-old victim in an existing relationship of trust, was sentenced to 12 years imprisonment with suspension and compensation orders.

11. On behalf of the State Ms Patana after discussing the relevant principles in sentencing, referred the Court to several sentences in similar cases from which it was submitted that a sentence of 13-17 years was appropriate.

12. The aggravating factors were that the victim was under 12 years old, there was a breach of an existing relationship of trust, authority and dependency, the offence was committed at night in the victim’s house, the fear of stigmatisation was present, and the offence is prevalent in our society.

13. The following cases were referred to as appropriate for sentencing in this case.

14. In the case of State v Pennias Mokei (NO. 2) (2004) N2635 the prisoner who was convicted after a trial for sexually penetrating the victim was sentenced to 15 years imprisonment.

15. In the State v Aru (2016) N6917 the 23-year-old prisoner who pleaded guilty to one count of sexual penetration on a 9-year-old victim was sentenced to 15 years imprisonment with deductions.

16. In the State v John Henry (2014) N5630 the 42-year-old prisoner who pleaded guilty to one count of digital penetration on a 9-year-old victim was sentenced to 13 years with deductions.

17. In the State v Paul Malken (2015) N6022 the 24-year-old prisoner who was convicted after a trial for sexual penetration of an 8-year-old victim was sentenced to 17 years imprisonment with deductions.

18. In the State v John Ritsi Kutetoa (2005) N2814 the prisoner of 39 years who pleaded guilty to sexual penetration on his 10-year-old stepdaughter was sentenced to 17 years imprisonment with deductions.

19. The offence of sexual penetration is created by, and its penalty is prescribed under s 229A of the CCA in the following manner.

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 Subsections (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 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.

20. The combined effect of this provisions is that the prisoner is liable to be sentenced to life imprisonment subject to the sentencing discretion permitted under s 19 of the CCA. He committed the offence on a child aged 09 years in an existing relationship of trust, authority, and dependency.

21. In the exercise of discretion and for purposes of parity in sentencing the Prisoner will not be sentenced to the maximum prescribed penalty.

22. It is also a principle of law that the facts and circumstances of each case must be considered in determining a sentence. (See Sabiu v the State (2007) SC 866).

23. The present case is one of sexual penetration committed on a relative in a breach of trust relationship. It consisted of a serious betrayal of trust authority and dependency.

24. The prisoner was a cousin brother to the victim. His moral obligations were absent. The prisoner brought disrepute into the family whom he lived with and ate from. His actions are categorised as ‘biting the hand that fed him’.

25. Sexual penetration in family relationships is prevalent in this country. The litany of cases referred to by both counsels attest to this type of behaviour. This case is another display of dwindling moral behaviour in this country. This type of offence reflects an affront to what would naturally be composed of sacred family relationships and the ethics that naturally flows from such relationships. Deterrence must be factored in the sentence to be imposed.

26. The facts and circumstances of this case make it very serious, warranting a custodial sentence. The cases referred to by Ms Patana are adopted as relevant for sentencing.

27. From the aggravating and mitigating factors presented by both counsels the only factor operating in the prisoner’s favour is that he pleaded guilty to a serious offence as a first-time offender.

28. This factor falls into insignificance and becomes a nugatory under circumstances where the offence was committed on a blood relative not his age in a breach of a trust and dependency situation. There was an age gap of 16 years. The now prisoner was living and being fed by the victim’s parents. The stigma attached with the ordeal experienced of being molested by a relative will remain and torment the victim all her life.

29. As for his suggestion of compensation, it is settled law that compensation is not a substitute for a sentence. The pre-sentence report shows that he has no means to pay compensation. There will be no orders for compensation. It is best left to his own goodwill, given that the victim is a close relative.

30. As to the concerns on his family welfare on allocutus, the Courts have expressed their sentiments in the following manner.

31. In the State v Lucas Yovura (2003) N2366 the court held:

...it is a bit too late to talk about an offender’s background including the needs of his family concerns once he is ... guilty according to law ... his background and concerns should have little weight against the need to impose a sentence.

32. In the State v Taulaola (2020) N4215 the Court said:

“An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one’s family should have little to no weight when an appropriate sentence is being considered.”

33. Those sentiments are adopted as relevant in the present case. The prisoner’s family concern and transfer to another CIS raised in allocutus shall have no bearing in his sentencing.

34. The prisoner is sentenced to 17 years imprisonment. The time spent in pretrial custody shall be deducted and the prisoner shall serve the balance at CIS Buimo.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence