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State v Billy [2021] PGNC 352; N9177 (16 August 2021)

N9177

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 117 Of 2020

THE STATE

-v-

ESSAU BILLY

Lae: Kangwia J.

2021: 10^th & 16^th August

CRIMINAL LAW – Sexual penetration on a granddaughter aged 03 years –aggravating factors outweigh those in mitigation - gross abuse of trust situation – lustful conduct influenced by alcohol - invasion of privacy by a close relative – victim will live with memory and stigma of ordeal – sentenced to 18 years imprisonment with deductions.

Cases Cited:

State v Amon (2018) N7634
Stanley Sabiu v The State (2007) SC 24
The State v Jubin (2018) N7523
The State v Penias Mokei (No 2) (2004) N2004
The State v Thomas Macnell CR 1168 of 2018 (unreported judgement of 03 May 2021).
The State v Tony Kupin (2009) N364

Counsel
P. Matana, for the State
C. Kisambo, for the Accused

16^th August, 2021

1. KANGWIA J: Esau Billy was convicted on his guilty plea to one count of sexual penetration, an offence under s 229 A (1) (2) & (3) of the Criminal Code. He now appears as a prisoner for sentence.
   
2. The prisoner is related to the victim as a grandfather. On 13 June the prisoner while under the influence of alcohol called the victim over and removed her skirt and underwear. He sat her on his laps and sexually penetrated her.
   
3. The elder sister of the victim then aged 5 years saw what the prisoner was doing and reported to her elder cousin sister who in turn reported to the mother. The mother reported to police and the prisoner was charged. The medical report confirmed that the victim sustained injuries inside her genital areas.
   
4. He is believed to be 42 years old, has a de facto relationship and has 5 children. He lives at Nawae block and was educated to grade 8. He has no prior convictions.
   
5. On his allocutus the prisoner apologised to everyone in Court and the victim’s family. He was willing to accept any sentence impose. He then sought a lenient sentence with good behaviour bond, probation orders or a fine. He stated that he had old parents and the children who no longer have a mother rely on him. There was no one to look after his property.
   
6. On his behalf Mr. Kisambo sought a sentence of 10 years with deductions and suspensions. While describing sexual offences perpetrated on children by mature men as the most depraved of all moral conducts, the Court was nonetheless asked to consider all the relevant factors in mitigation and aggravation present in considering a penalty.
   
7. The Court was referred to the suggested guidelines in the case of The State v Penias Mokei (No 2) (2004) N2004 as appropriate in sentencing. The Court was also referred to the following cases as possible guides.
   
8. In the case of The State v Jubin (2018) N7523 where the offender who sexually penetrated the victim under 12 years, an offence akin to a rape was sentenced to 17 years.
   
9. In The State v Amon (2018) N7634 where the offender who forcefully committed sexual penetration on a 9-year-old victim also in an offence akin to a rape was sentenced to 12 years imprisonment.
   
10. On behalf of the State Ms Patana asked for a sentence of 17 years. It was submitted that this was one of the worst cases of sexual penetration as the victim was at the tender age, a toddler of 3 years. She trusted him as a grandfather, but he violated the trust.
    
11. He was drunk and took advantage openly which the elder sister saw. There was an age gap of 39 years and the offender ought to have appreciated the ramification of his actions.
    
12. After highlighting the common sentencing principles, the Court was referred to the case of Stanley Sabiu v The State (2007) SC866 as relevant for determining a head sentence for sexual offences against a victim of less than 12 years. In that case the Supreme Court held that the starting point for offences against victims under 12 years should be 15 years.
    
13. It was also submitted that factors referred to in Mokei (No 2) were relevant. The Court was urged to apply the 15 years head sentence proposed in that case for deterrent purposes.
    
14. The prisoner committed sexual penetration on his granddaughter who was then aged three years.
    
15. The penalty for sexual penetration of a child is prescribed by s 229A of the Criminal Code (Sexual Offences Against Children) Act and the relevant parts are reproduced as follows:
    

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, ... subject to Section 19, to imprisonment for life.

(3) If, there was an existing relationship of trust, authority or dependency between the accused and the child ... subject to s19 ... life imprisonment.

16. The prisoner’s case falls under subsections (2) and (3) and is liable for life imprisonment. The offence falls into the most serious category under this provision. It is aggravated by the breach of a trust situation where the prisoner was a grandfather to the victim. He acted under the influence of alcohol.
    
17. Supreme Court in Stanley Sabiu -v- The State (2007) SC 866 was of the view that:
    

The maximum sentence for sexually penetrating a child under the age of 16 years is 25 years imprisonment and the maximum sentence for sexually penetrating a child under the age of 12 years is life imprisonment.

What should the starting point be in such cases? In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that the sexual penetration of children under the age of 12 years is the more serious, hence the larger maximum penalty.

We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than 15 years imprisonment”.

18. Even though the Courts seem to be treating such offences seriously the sentences imposed for such offences are varied. The cases cited by both counsel in this case also attest to the varied sentences. Many sentences are lower.
    
19. In the case of the State v Tony Kupin (2009) N3641 the 50-year-old offender who sexually penetrated a nine-year-old victim was sentenced to 10 years with deductions for time spent in pre-trial custody.
    
20. In the present case a serious aggravating factor exists.
    
21. Despite his maturity at 42 years of age, his lustful conduct greatly influenced by alcohol blinded his good conscience and moral conduct. The prisoner employed a gross abuse of trust under circumstances where the victim was his granddaughter, a position of trust created by heredity and the law.
    
22. As stated in the recent case of the State v Thomas Macnell CR 1168 of 2018 (unreported judgement of 03 May 2021), he became a sloth by invading the privacy and innocence of a child of tender years who shared the same blood as him. The victim will live with the memory and stigma attached with the incident all her life.
    
23. The mitigating factors are that he pleaded guilty as a first-time offender. He acted alone and no weapons were used. However, they are rendered insignificant by the serious nature of the offence.
    
24. The prisoner is sentenced to 18 years imprisonment. The time spent in pretrial custody shall be deducted and the balance shall be served at CIS Buimo.

______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence