N9116

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 2 OF 2019

BETWEEN:
INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
EMMANUEL ROBIN

Waigani: Wawun-Kuvi, AJ
2021: 16th, 30th August & 2nd September

CRIMINAL LAW-SENTENCE-Guilty Plea-Persistent Sexual Abuse, 229D (1) Criminal Code
Cases Cited
State v Francis [2020] PGNC 436; N8536 
State v Pirika [2018] PGNC 526; N7654 
State v Ndrahiyek [2018] PGNC 423; N7473 
State v Was [2017] PGNC 100; N6740 
State v Embere [2016] PGNC 118; N6302
State v Willie [2012] PGNC 324; N5170 
State v Sakias [2011] PGNC 37; N4238 
State v Jonathan [2008] PGNC 31; N3315 
Sabiu v State [2007] PGSC 24; SC866 
State v Kepas [2007] PGNC 77; N3192 
State v Burua [2006] PGNC 222; N3081 
State v Tanang [2005] PGNC 21; N2941 
Dambui v The State [2003] PGSC 20; SC724
Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730
State v Winston [2003] PNGLR 5
Public Prosecutor v Hale [1998] PGSC 26; SC564
The State v Aruve Waiba [1994] SCR 1 of 1994; unreported Supreme Court judgment of Los J and Salika J delivered in 1996 
Kalabus v The State [1988]
The State v Kagai [1987] PNGLR 320
Public Prosecutor v Tardrew [1986] PNGLR 91 
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Public Prosecutor v Sima Kone [1979] PNGLR 294.
Goli Golu v The State [1970] PNGLR 653

References

Criminal Code Ch 262
Criminal Justice (Sentences) Act 1986

Counsel

Ms Elsie Kariko, for the State
Mr Noel Loloma, for the Offender

SENTENCE

2nd September, 2021

1.	WAWUN-KUVI, AJ: The prisoner and [X] are neighbors. [X] is a female child aged 9 years. On more three occasions, the prisoner with his penis touched the vagina of [X] for sexual purposes. The first occasion was when her father was away. The offender lured her into his room, removed her clothes and rubbed his penis on her vagina. On the second occasion, the prisoner grabbed [X] while she was playing and took her into his house, removed her clothes and rubbed his penis on her vagina. On the third occasion, the prisoner jumped the fence into [X]’s family yard and carried her to his house where he again touched her vagina with his penis.

2.	The offender pleaded guilty to the Abuse.  I am now to decide the appropriate penalty.

Purpose of Sentencing

3.	In considering the offender’s sentence, I remind myself of the purpose of sentencing which includes but is not limited to, considerations such as punishment of the offender, rehabilitation, specific and general deterrence, communicating clearly that the community and society does not condone the offender’s conduct and in cases of violent and serious offences for the protection of the community.
The Charge

4.	The offender pleaded guilty to the charge of Persistent Sexual Abuse of a Child pursuant to section 229D (1) of the Criminal Code.
Penalty
5.	The maximum penalty is 15 years.
6.	The maximum is reserved for the worst case: see Goli Golu v The State [1970] PNGLR 653.
Submissions
Defence Submissions
7.	Mr Loloma contends that 6 years is an appropriate penalty. He says that the Court should consider suspended sentence but did not cite or invoke any relevant provisions that would grant the Court the discretion to do so.  On enquiry by this Court, Mr Loloma has absolutely no idea as to the relevant case laws that pertain to suspension of sentences. It is the duty of a defence counsel to properly and adequately represent his client and to take all steps necessary to ensure that all relevant materials are before the Court to present case that will be beneficial to his client.

8.	He refers the Court to the following cases:

In State v Pirika [2018], Koeget, J: The prisoner pleaded guilty to sexual touching pursuant to section 229B (1) (4) of the Code.  The prisoner was 24 years old, and the child was 10 years old.  The prisoner used his fingers to touch the child’s vagina. The prisoner was sentenced to 7 years. No part of the sentence was suspended.

The State v Kila Depit (19.6.2015) Cr. No. 456 of 2015: This was a case that Mr. Loloma obtained from within the judgment of Lenalia J in State v Dominic [2016]. Whilst Mr. Loloma did not identify this aspect, it was apparent on research that the case could not be located. The case details were found in State v Dominic where counsel had copied verbatim without any reference to His Honour’s judgement. It is apparent that because the sentence was 15 years, the charge was under section 229 D (1) (6) of the Code. The factual basis that assisted the Court to determine sentence is unknown for the above reason.

State v Jonathan [2008], Kandakasi, J: The prisoner pleaded guilty to persistent sexual abuse under section 229D (1) (6) of the Code. The prisoner was living with the child and her parents. He used a knife on all occasions to threaten the child. When she fell pregnant, the abuse was discovered. He was a first-time offender. He was 22 years old, and the child was 13 years old. He was sentenced to 18 years imprisonment. No part of the sentence was suspended.

Sabiu v State [2007]: He submits that the Supreme Court held that the starting point for sexual penetration cases is 15 years. This is misconceived. The Supreme Court was of the view that in instances involving sexual penetration of children under 12 years the starting point should be 15 years. And that dependent upon considerations of peculiarity, the sentence may be more or less than 15 years. Mr. Loloma has neglected to draw to the Court’s attention the relevance of this case to his client’s case. His client being indicted on the charge of persistent abuse pursuant to section 229D (1) involving no allegations of penetration.

State v Willie [2012], Toliken AJ: The offender pleaded guilty to the offence of persistent sexual abuse under section 229D (1) (6) of the Code. On two occasions, the offender sexually penetrated the child. The offender was 28 years old and single. He was educated up to Grade 6. He had no prior convictions. The child was 15 years old. The prisoner was sentenced to 10 years imprisonment.

 State v Sakias [2011], Sawong J: The prisoner pleaded guilty to persistent sexual abuse of a child with circumstances of aggravation under section 229D (1) (6). The offender was 27 years old, and the child was 14 years old. There was more than one occasion involving sexual penetration and the victim was impregnated. Her education was affected. The prisoner was sentenced to 12 years imprisonment.

9.       Mr Loloma did not draw any comparison between the cases he has cited to his client’s case. In any event, the cases involving the charge under section 229D (1) (6) carry the maximum of life imprisonment unlike the charge under section 229D (1) where the maximum is 15 years. Furthermore, other than State v Pirika, all the cases involved penetration and not touching. Counsels should endeavor to provide cases that derived from the same charge and bear closely related facts in order to assist the Court in determining sentence.
 State’s submission

10.	Ms Kariko for the State contends for a custodial sentence of 10 years. She also refers to cases where the charges are under section 229D (1) (6) and involve penetration.

State v Francis [2020], Suelip AJ: The prisoner pleaded guilty to persistent sexual abuse contrary to section 229D (1)(2) of the Code. He was a first-time offender. He was 21 years old, and the child was 7 years of age. On two occasions, the offender dragged the victim against her will and forcefully inserted his penis into her vagina. He was sentenced to 20 years. No part of the sentence was suspended as the Court was of the view that no factors were established to support suspension. 

State v Kepas [2007], Cannings J: The prisoner pleaded guilty to the persistent abuse of his adopted daughter. There were six instances of which five included sexual touching by rubbing his penis against the child’s vagina and one instance of sexual penetration. The prisoner was 60 years old, and the child was 10 years of age. The prisoner was indicted under section 229D (1) (6) of the Code. The Court held that in cases of persistent sexual abuse involving penetration the starting point should be 25 years. However, in considering the advance age of the offender and his health, the sentence imposed was 12 years. No part of the sentence was suspended. 

State v Burua [2006], Lenalia, J: The prisoner pleaded guilty to the sexual abuse of his biological daughter. The charge was pursuant to section 229D (1) (6) of the Code. The abuse went undiscovered for years until the child fell pregnant. The acts involved both sexual touching and penetration. The Court held that because of the seriousness of the offence, a punitive sentence was necessary. The prisoner was sentenced to 20 years imprisonment.

11.     Ms Kariko adequately submits that the cases she referred to involve penetration whereas the present case involves persistent sexual touching. And therefore, the sentences imposed were much higher. Her submission is that the offender should nonetheless receive a strong punitive sentence to reflect the gravity of the offence.
Comparative cases

12. Many of the reported cases are for charges of persistent sexual abuse with aggravation contrary to section 229D (1) (6) of the Code. The maximum being life imprisonment. In my limited research I have not been able to find any reported cases involving persistent sexual touching. I therefore proceed to draw a comparison between single acts of touching of vagina by the penis to provide some assistance.

13. I am reminded that the maximum penalty under section 229B (1) of the Code is 7 years. Where there are circumstances of aggravation specifically that the child is under 12 years of age or there is an existing relationship of trust, authority or dependency, the maximum is 12 years.

14.	State v Ndrahiyek [2018] Gora, AJ: The prisoner pleaded guilty to sexual touching contrary to section 229B(1)(a) and was a first-time offender. The child was 14 years old. She was on her way home from school when the prisoner grabbed her into nearby shrubs and threatened her with violence. When she tried to shout the prisoner slapped her. He pulled down her uniform and his trousers and rubbed his penis on her vagina until he ejaculated. The prisoner was sentenced to 3 years imprisonment. Time spent in custody was deducted leaving a balance of 2 years and 8 months. The 2 years was suspended on condition that the prisoner pay K500.00 compensation in a reconciliation to be organized by the Probation Office. The prisoner was ordered to serve the balance of 8 months.

15.	State v Was [2017], Bona, J: The prisoner pleaded guilty to one count of sexual touching contrary to section 229B (1) (a) and (5). He was a first-time offender. The child was 15 years old and the prisoner 34 years old. The child was related to the prisoner by marriage, in that, she was the daughter of the prisoner’s sister-in-law. She was living with the prisoner and his wife at the time of the offence. The prisoner threw the child on the ground, removed his trousers and rubbed his penis on her vagina. He was not able to penetrate her as she was struggling. The prisoner was sentenced to 4 years imprisonment. Time spent in custody was deducted. The balance was suspended because of the favorable Pre-Sentence Report and that both families had reconciled. 

16.	State v Embere [2016], Davani, J: The prisoner pleaded guilty to sexual touching contrary to section 229B (1) (a) of the Code. The prisoner is 22 years old and the child 12 years old. The child was on her way to the garden when the prisoner asked her to accompany him to collect mustard. Along the way, he pushed the child onto the ground, covered her mouth and removed her underwear. He attempted to penetrate her vagina with his penis but could not because the victim was hysterical and struggling. The prisoner was disturbed, and he ran off. The prisoner was sentenced to 4 years imprisonment less time spent in custody. 1 year of the sentence was suspended on the condition that the prisoner be of good behavior. 

17.	State v Tanang [2005], Kirriwom, J: The prisoner pleaded guilty to sexual touching under section 229B (1) (4) of the Code. The child was 10 years old at the time of the offence. The mother of the child was away. The child is daughter of the prisoner’s brother. The prisoner touched the victim’s vagina with his fingers then laid on the floor and attempted to penetrate her vagina with his penis but was not able to do so. He proceeded to rub his penis on the wall of the vagina. The prisoner was sentenced to 6 years imprisonment less time spent in custody. Two years of his sentence was suspended, and he was placed a good behavior bond.

18.	State v Ndrahiyek [2018] was a case involving sexual touching simpliciter. The victim was not known to the offender. Whereas in the other cases, the charges were of aggravated sexual touching and the range was 4-6 years. The victims were known to the offenders and there were degrees of force applied. 

19.	It is evident that Parliament has since view that sexual penetration is considered more serious than sexual touching. On a charge of sexual penetration simpliciter, an offender faces a maximum of 25 years whereas an offence of sexual touching simpliciter attracts a maximum of 7 years. This is evident when penetration is an aggravated factor that increases the maximum penalty for persistent sexual abuse to life imprisonment.

20.	In cases involving aggravated sexual touching by rubbing of penis on vagina, where the victims are known and there was some application of force, the sentence appears to be much closer to the midpoint of 6 years.

Sentencing Factors

21.	Before proceeding on to determine sentence, I again remind myself that sentencing is not an exact science, it is an exercise of discretion which involves the balancing of various factors against the peculiar circumstance of an offender’s case.

22.	Some important factors include the offender’s character, age, education, intellectual capacity, nature and seriousness of the offence, the criminal intent, degree and extent of an offender’s involvement, extent of the injury or harm, the complainant or victim’s views, the existence of aggravating or mitigating factors, prevalence of offence, assistance given to police, pleas of guilty and time spent in custody.

Personal Antecedents

23.	 The Offender is 23 years old and is from Kasoro, Okapa, Eastern Highlands Province. He is the 4th child. He has four other siblings. His father is deceased, and his mother is still alive although quite old. 
 
24.	The offender attended Waigani Primary School and completed his Grade 8 education.

25.	He was gainfully employed with PNG Freezers until he was arrested.

Allocutus

26.	The prisoner in Allocutus states:

What I have done is wrong. I want to say sorry in the eyes of God for what I did was bad. Also, I want to say sorry to the victim and her family. Thirdly, I want to say sorry to my family. Lastly, I want to say sorry to the Court and asking for leniency on me and I know what I did was wrong. I have broken the law of this country. I want to say sorry. And I know what I have gone through and I’ve realized and I will never do it again.
27.	I accept this as genuine remorse because the offender cooperated with police and made admissions since the time he was discovered: see Kalabus v The State [1988] as to genuineness of remorse and contrition.

Nature and Seriousness of the Offence
28.	This is a very serious offence that involves the violation of a child.  Not on one occasion but on four separate occasions. The offender is an adult that was very aware of what he was doing. 
29.	As said by Lenalia J in State v Burua:
“Sexual abuse of our young children in this country and particularly in this Province is very prevalent. Very young girls are being abused at very early ages as was the case in the instant case. A child at the age of less than 15 years is merely a child of very tender age is not capable of having sexual relations with anyone. The courts must view these kinds of abuses to be very serious……
The law of the land must be maintained and enforced in its entirety to reflect the serious nature of the crime of sexual abuse.”
Complainant’s views

30.	Whilst the State failed to obtain a victim impact statement which would have given some insight into the child victim’s psychological and emotional state since the offence, the probation officer has obtained only a brief statement in that the child wishes for the prisoner to be incarcerated.

Aggravating Factors

31.	The offender is known to the victim and is the neighbor. Whilst Mr Loloma says that the State cannot rely on this as an aggravating factor because it was not pleaded, he is misconceived. Circumstances of aggravation as they relate to prescribed penalty needed to be pleaded in the instance of a penalty ceiling or cap. As in this case, where there is no penetration, the maximum penalty or ceiling is 15 years.  This is quite different to factors in aggravation which increase a possible sentence, to bring it close to the maximum prescribed penalty.

32.	The abuse happened over a period and was only discovered when the victim’s sister reported the matter. This demonstrates a serious sexual deviancy and pervasion on the part of the offender.

33.	The offender is an adult, and the child victim was well below the age of 12. 

34.	One other aggravating feature that I have not seen mention either in counsel’ submission and the many case laws as they relate to child abuse or even general sexual offences, is the extremely intrusive medical procedure that is required to be performed to confirm penetration. Also, the fact that the victim is forced to repeat the story to multiple people repeatedly. Yes, the victim did not have to come to Court and recount what happened to her, but the secondary trauma has already occurred when they have had to repeat the story to relatives, police, medical professionals and prosecutors. It cannot also be ignored that in Papua New Guinea where we have closely knitted communities, there is stigma attached to the child. Whilst a prisoner pleading guilty saves the victim from coming to Court and being subjected to further trauma, it cannot and should not be ignored that a child has had to be subjected to further invasion of privacy because of the perverted act of an adult who should have known better. A child should be growing up with memories of laughter and joy and the occasional tears from scrapes and bruises and maybe the occasionally discipline from a parent.

Mitigating Factors

35.	The offended pleaded guilty and has no prior convictions. He has cooperated with police and made admissions in his interview with police. 
Deterrence

36.	This is a very prevalent offence in Papua New Guinea society. One only has to read the number of judgements relating to offences against children to appreciate the extent of this sickening behavior. A behavior that rots the fabric of our society. Children are very vulnerable members of our society, and such behavior should never be condoned. 
Head Sentence
37.	In considering all the above facts, I impose a head sentence of 10 years.
Suspension 
38.	Mr Loloma seeks suspension but does not know the basis for suspension. The law on suspension is as follows.
•	Suspension is not an act of leniency but is in the interest of the community and to promote rehabilitation and prevent recidivism: The State v Kagai [1987].
•	Sentencing is a community response and so the views must be obtained in a pre-sentence report. Without the report, the Court cannot suspend sentence: Gima v Independent State of Papua New Guinea [2003], State v Winston [2003] and Public Prosecutor v Hale [1998].
•	The community’s view must be obtained, if it is intended that the offender be placed back into the community: Gima v Independent State of Papua New Guinea [2003], State v Winston [2003]and Public Prosecutor v Hale [1998]
•	Suspension pursuant to section 19 (6) of the Code should only be exercised in three broad categories, (1) promotes personal deterrence, reformation or rehabilitation of the offender, (2) encourages the repayment or restitution of stolen money or goods and (3) imprisonment would cause excessive degree of suffering, for example, because of bad physical and mental health: Public Prosecutor v Tardrew [1986].
•	The factors that were considered to lower the sentence should not be the same used to suspend sentence. It amounts to double discount in the prisoner’s favor: Public Prosecutor v Thomas Vola [1981].
•	In cases where the offence is prevalent, only in exceptional cases can the circumstance of the case override imprisonment: Public Prosecutor v Sima Kone [1979].
•	What is exceptional in each case is infinite. Each sentencing court in the exercise of discretion makes that determination: State v Malko [2018].
•	Evidence of good character supports suspension. There must be actual evidence and not based on submissions that the offender has good character: State v Kagai [1987] PNGLR 320.
•	In violent offences, the views of the victim are important when considering suspending sentence: State v Kogen [2016] PGNC 39; N6211 (19 February 2016), and State v Wamingi [2013] PGNC 329; N5723 (20 June 2013)
•	Partial suspension pursuant to section 19 (f) of the Code should be exercised on proper basis: Public Prosecutor v Thomas Vola [1981] PNGLR 412.
•	The procedure under section 19(f) of the Code is for the prisoner to enter into recognizance first prior to commencing the portion that the prisoner was ordered to serve: Public Prosecutor v Thomas Vola [1981] PNGLR 412.
•	For offences with minimum penalty provisions, it is open to the Court to consider suspension after imposing the minimum penalty. This is dependent on the peculiar circumstance of each case: The State v. Aruve Waiba [1994] and Dambui v The State [2003].

39.	I remind myself that only in exceptional circumstances that personal factors may override a term of imprisonment for prevalent offences and that the same factors that were used in mitigation cannot be the same considerations for suspension.

40.	In the present matter suspension is not appropriate for the following reasons:
•	 There are no separate considerations apart from what is mitigating. 
•	The victim wishes for the offender to be incarcerated. 
•	The views of the community were not obtained.
•	There is no evidence of prior good character.
•	The offender’s own family member considers the offence serious.

Time Spent in Custody 

41.	Pursuant to section 3 (2) Criminal Justice (Sentences) Act 1986, the pre-sentence custody of 1 year, 10 months and 13 days is deducted.

42.	The prisoner shall serve the balance of 8 years, 1 month and 17 days.
Orders
43.	The Orders of the Court are as follows:
1.	The Defendant is sentenced to 10 years imprisonment.
2.	Pre-sentence custody of 1 year, 10 months and 13 days is deducted.
3.	The prisoner shall serve the balance of 8 years, 1 month and 17 days at the Bomana Correctional Institution
________________________________________________________________
Office of The Public Prosecutor:  Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence