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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 578 OF 2017
THE STATE
v
STANIS MORE
Kimbe: Numapo J
2021: 19th July & 27th August
CRIMINAL LAW – Particular offence – Sexual Penetration of 16 year old child – Guilty Plea – Aggravating circumstances and Mitigating factors – Breach of Trust, Authority and Dependency - Sentence – Compensation according to custom.
Held:
(i) Sexual penetration of underage girls is a serious offence and therefore, the sentence imposed must reflect the seriousness of the offence and society’s demands for tougher penalties on sexual deviants and predators who prey on vulnerable children.
(ii) The big age gap between the offender and the victim, breach of an existing relationship of trust, authority and dependency makes it an aggravated sexual penetration.
(iii) Consideration must be given to the Victim Impact Statement in determining an appropriate sentence.
(iv) Prisoner sentenced to Five (5) years imprisonment less the pre-trial custody period.
- (v) Sentence suspended on conditions.
Cases Cited:
State v Anton Tugumar [2013] N5377
State v Kilau [2006] PGNC 125; N7032
State v Raphael Dala CR 311 of 2005; N4517
State v Babore [2017] PGNC 348; N7032
State v Fong [2016] PGNC 241; N6418
The State v Jessie Chadrol (2011) N4648,
Counsel:
E. Kave, for the State
F. Kua, (Kua Lawyers) for the Defence
SENTENCE
27th August, 2021
1. NUMAPO J: This is a decision on sentence. The prisoner STANIS MORE aged 42 of Buluma village, Hoskins, West New Britain Province pleaded guilty to one count of Sexual Penetration of a child aged 16 years old. Contrary to section 229E of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.
2. The facts to which the prisoner pleaded guilty were that; on the 27th October 2016 at Buluma, Hoskins, West New Britain Province the victim (named) was getting ready to have her shower when the prisoner (her step father) called her over to him. Prisoner asked the victim to have sex with her but she refused. Prisoner then pushed her onto the mattress and removed her clothes and laid on top of her and pushed his penis into her vagina and had sexual intercourse with her and ejaculated into her vagina. After that the victim went to have her shower. Victim decided not to go to school because of what the prisoner did to her. Her mother took her and left her at the school but after she left, the victim ran away to her grandparent’s house and reported the matter.
3. The State alleges that the victim was 16 years old at the time and was a Grade 8 student at Buluma Primary School and there existed a relationship of trust, authority and dependency between the prisoner and her. The victim’s biological mother is married to the prisoner and have other children with him.
4. The medical examination carried out on the victim revealed no presence of spermatozoa due to the fact that the victim was presented to the hospital for checkup a week after the alleged intercourse took place however, according to Dr John Tate the significant finding to suggest penetration was the absence of the hymen. This suggests vaginal penetration. The medical report is consistent with what the victim reported.
5. Section 229E of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002
229E. ABUSE OF TRUST, AUTHORITY OR DEPENDENCY
(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.
Penalty: Imprisonment for a term not exceeding 15 years.
6. The factual circumstances of the case being the aggravating and mitigating factors and circumstances are taken into account in deciding what should be the appropriate sentence to impose but as to how much weight is given to those factors is entirely at the discretion of the Court.
7. The aggravating and mitigating factors and circumstances of the present case are as follows:
8. The Pre-Sentence Report (PSR) appears favourable to the prisoner. The prisoner’s family, his wife and her family, the victim and the community leaders strongly recommended that the prisoner be given a non-custodial sentence to serve his term outside. They regarded him as a valuable member of the community in that he has contributed a lot to the community. He has 8 children and is the only bread-winner for the family. His wife will find it difficult if he goes to prison. The maternal uncles of the victim wants the prisoner to compensate the victim with K5000 cash, one live pig and 500 red shell money in accordance with the custom of the West New Britain people. The Probation Officer considered the prisoner as a suitable candidate for probation given that he is remorseful and co-operated well with the police.
9. In her Victim Impact Statement (VIS) the victim stated that she was a Grade 8 student at the time the prisoner sexually penetrated her. She was ready to sit for her exams when the incident happened. Fortunately, she did well and was selected to go to the Hoskins Secondary School to do her Grade 9. However, she was not able to complete her schooling.
10. The prisoner is her stepfather and is married to her biological mother and they have 8 children between them. She is the ninth child in the family. She is concerned that if the prisoner goes to prison it will be difficult for her mother to support her 8 children. She feels sorry for her mother and her siblings. She discussed that with her maternal uncles and grandparents and they all agreed that the prisoner should pay compensation and be given probation instead of imprisonment. The victim now lives with her grandparents and only goes to visit her mother and her siblings’ once in a while. She no longer lives with them.
11. Counsels cited a number of case precedence to assist the Court in deciding an appropriate sentence for this case based on the current sentencing trend on Sexual Penetration on victims aged 16 years. I refer to them below:
(i) State v Anton Tugumar [2013] N5377
12. The prisoner pleaded guilty for sexually abusing his 16 year old adopted daughter. Prisoner lured the victim into bush and pretending to cut bamboos and then threatened her with a pocket knife and sexually penetrated her. He was 51 years old at the time. He was sentenced to 10 years IHL.
(ii) State v Kilau [2006] PGNC 125; N7032
13. The prisoner aged 33 a school teacher pleaded guilty of sexually penetrating the 16 year old victim who is his student. The sexual abuse continued until she became pregnant. She was expelled from school as a result of her pregnancy. The court held that the actions of the prisoner had ruined her life and future prospects of getting educated and have a decent life. The prisoner was sentenced to 7 years IHL and also ordered to pay K1000 compensation.
(iii) State v Raphael Dala CR 311 of 2005; N4517
14. The prisoner pleaded guilty to sexually penetrating his 16 year old stepdaughter. He had sex with her in the middle of the day whilst his wife was away. There were no physical injuries caused to the victim. There was however, an existing relationship of trust, authority and dependency as he was the victim’s stepfather. He was sentenced to 5 years and the sentence was wholly suspended on conditions imposed by the court.
(iv) State v Babore [2017] PGNC 348; N7032
15. The prisoner (a teacher) pleaded guilty to sexually penetrating his 17 year old student on several occasions. He was sentenced to 7 years IHL less the pre-trial custody period. Four years was suspended with conditions leaving a balance term of 3 years to serve.
(v) State v Fong [2016] PGNC 241; N6418
16. The prisoner pleaded guilty to one count of sexual penetration under section 229E. He sexually abused his 16 years old biological daughter and she fell pregnant and bore him a child. In the course of sexual abuse of the victim, the prisoner had threatened his family. The prisoner was sentenced to 15 years IHL. The aggravating factor far outweighs the mitigating factors.
17. The prisoner is married with 8 children. The victim makes a total of 9 children altogether. However, she is now living with her maternal grandparents. Four of his children are attending school at present. He owns a two hectare cocoa and coconut blocks. He also does some security work as a security for the company PDC and earns K2, 600 a forthnight. In his allocutus, the prisoner expressed remorse and apologize for his actions and asked the Court to be lenient with him. He plans to say sorry and pay compensation to the victim and her maternal uncles.
18. In his allocutus he told the Court that he is very sorry for what he has done and apologized to the victim and his family and also to the victim’s maternal uncles. He is willing to pay compensation if the court orders him to do so.
19. The current sentencing trend on Sexual Penetration on victims aged 16 years old seem to range between 5 – 17 years depending on the aggravating and mitigating factors as reflected in the case laws cited above.
20. In The State v Jessie Chadrol (2011) N4648, his Honour Batari, J. held that the proper approach to deal with sexual penetration cases was to set a sentencing range as opposed to a definite starting point. His Honour then proposed a sentencing range for category two cases (where victim is less than 12 years) at 7 – 25 years generally and 25 years to life imprisonment for near worst to worst cases. His Honour held that:
“Where the victim is under 12 years or circumstances of aggravation like, extreme young age of the victim or breach of trust or persistent sexual penetration are present, a starting point of 15 years has been suggested by the Supreme Court in Stanley Sabiu v The State.
In my view, the proper approach is to consider a term within the range of sentences for aggravated sexual penetration. The range will be slightly higher than that for category one offences. I suggest a general range of 7 to 25 years. In extreme cases of seriousness with no mitigating factors; sentences from 25 years to life may be justified.”
21. In sexual penetration cases generally the age of the victim is taken into account in determining the type of punishment to impose. The younger the victim the higher the penalty. Another consideration in sentencing is the age difference between the prisoner and the victim at the time of the offence. The bigger the age gap the higher the penalty. In the present case there was a big age difference of 26 years between the offender and the victim. Furthermore, the victim is the prisoner’s stepdaughter and was living with her biological mother and her other siblings in their family home when she was sexually abused by the prisoner. There was a breach of an existing relationship of trust, authority and dependency which makes it an aggravated sexual penetration.
22. Sexual penetration of underage girls is a serious offence and therefore, the sentence imposed must reflect the seriousness of the offence and society’s demands for tougher penalties on sexual deviants and predators who prey on vulnerable children. Apart from the act being unlawful, it is also a moral issue that goes against the accepted decency, norms and values of society.
23. I have considered the PSR and the strong desire expressed by the victim, her mother, her maternal grandparents, uncles and members of the community that the prisoner should be given a non-custodial sentence and that he be ordered to pay compensation to the victim given his standing and contribution.
24. In particular, I have taken into consideration the victim’s passionate plea not to imprison the offender. She said in her Victim Impact Statement and I quote: “Although he (prisoner) has done this bad thing to me, I feel sorry for my mother because they have 8 children together who are very young. If Stanis More (prisoner) goes to jail, my mother’s life will be become very hard because she will have to take care of all those children all by herself with no one to assist her” (end of quote).
25. I consider this a genuine plea from the victim. I find the victim a very considerate person putting the interests and welfare of others ahead of her own despite the ordeal and the sufferings she had gone through. Very few people do that and she is one of them. She is the hero in all these. For her age she was smart enough to see ahead the difficulties and the hardships her mother will face by raising her 8 young children all on her own if the prisoner goes to prison. Her concern for her mother and her siblings is enough to put the prisoner to great shame for not thinking about the welfare and well-being of his family when he committed the offence. He prioritized his sexual gratification ahead of the interest of his family. A disgraceful act indeed.
26. I further note that the prisoner had paid a sum of K1000 to the victim’s maternal uncle Benjamin Wakia as ‘bel kol’ money to be followed by a compensation proper according to custom but this had not happened. Prisoner has told a number of people that he will pay compensation to the victim and her maternal uncles but had not done so. It is now almost 5 years and the prisoner had not made any attempts to pay the compensation. Prisoner has not shown any genuine effort in making good his promise and pay the compensation. Victim’s uncle demanded compensation according to the custom of the West New Britain people for a sum of K5000 cash, one (1) live pig and 500 red shell money to be paid to the victim and her maternal uncles. In his allocutus as alluded to above the prisoner told the Court that he is willing to pay compensation if ordered by the Court. The only way to enforce the payment of compensation is to imprison the prisoner until he pays the compensation.
(i) I sentence the prisoner to Five (5) Years IHL.
(ii) Pursuant to Sections 2 of the Criminal Law (Compensation) Act 1991, I further order that the prisoner pay a sum of K5000 in cash, one (1) live pig and 500 red shell money to the victim within 30 days of the date of this Order. Failure to pay the compensation in full within the given time period will result in the prisoner serving his full term in prison.
(iii) Payment of compensation shall be supervised by the Probation Officer with a report presented to the Court after compensation has been paid.
(iv) Sentence will be wholly suspended upon the payment of full compensation.
(v) Prisoner will be placed on probation for a period of Two (2) years with strict conditions under the supervision of the Probation Officer.
(vi) Prisoner to commence his prison term when the court rises until such time the compensation is paid within the 30 day period.
(vii) Bail to be refunded forthwith.
Orders accordingly.
Public Prosecutor: Lawyers for the State
Kua Lawyers : Lawyers for the Defence
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