N9358

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 993 OF 2020

THE STATE

V

GABRIEL PUT

Baisu:	Toliken J
2021:	13th & 27th May, 13th August, 10th December

CRIMINAL LAW – Practice and procedure - Sexual penetration of a child under 16 years of age - Guilty Plea – Prisoner escapes from custody while awaiting sentence – Gave up his constitutional right to be present at his sentencing - Sentenced in absentia –Criminal Code Ch. 262, s 229A (1).
PRACTICE AND PROCEDURE – Sentence - Mitigating factors - First time offender - Early plea - Co-operated with police - Relationship not very close - Consensual relationship - Aggravating factors - Complainant became pregnant - Prevalence of offence - Appropriate sentence - 4 years less period in custody. 

Cases Cited:

Avia Aihi v The State (No.3) [1982] PNGLR 92 
Goli Golu v The State [1979] PNGLR 653
Stanley Sabiu v The State (2007) SC866
The State v Noelo (2020) N9220
The State v Philip (2014) N5825
The State v Xavier [2014] N5789
The State v Pastin (2014) N5623
The State v Wanaisu (2013) N5284
The State v Samson (2005) N2799
The State v Komboli (2005) N2891
The State v Pennias Mokei (No.2) (2004) N2635

Counsel:

J Kesan, for the State
E Wurr & D Pepson, for the Prisoner

SENTENCE

10th December, 2021

1.	TOLIKEN J:	Gabriel Put pleaded guilty to an indictment charging him with one count of sexual penetration of a child under the age of 16 years. This is an offence under Section 229A (1) of the Criminal Code Ch. 262 (the Code).

2.	While awaiting his sentence the prisoner, however, escaped from lawful custody. In doing so, he has voluntarily given up his right to be present at his sentence. (The State v Komboli (2005) N2891) He is therefore sentenced in absentia on the facts below, which he pleaded to and admitted.

FACTS

3.	The State alleged that on 11th August 2020, the complainant Sally Steven, who was 14 years old at that time, was home alone at Ramba Rot, Mt Hagen, washing dishes between 11.00am and 12.00pm. The prisoner came along and pulled her by her hands and took her to a pig pen at the back of the house. There he grabbed her by her throat and suffocated her, forced her to the ground and removed her clothes.  He also removed his clothes, got on top of her and had sexually penetrated her by inserting his penis into her vagina.  She reported the matter to her mother that afternoon when she returned home, and she was taken to the hospital for medical examination. The prisoner was later taken to the police station and charged.

THE OFFENCE
4.	Section 229A (1) of the Code relevantly provides for the offence in the following terms –

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)	...
(3)	…

5.	The prisoner is liable to be sentenced to a maximum of 25 years imprisonment. It does not necessarily follow, however, that he will get the maximum penalty. That is because the maximum is usually reserved for the worst instances of offending for any offence at all. Each case of offending must be visited with a sentence that is appropriate to the circumstances of that case. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92) 

SENTENCING ISSUES

6.	I need to determine what an appropriate sentence for the prisoner ought to be. Is this a worst offence that ought to attract the maximum penalty? If it is not what ought to be an appropriate sentence?
 
RATIONALE FOR OFFENCE AGAINST CHILDREN

7.	In The State v Noelo (2020) N9220 I said the following when discussing the rationale behind Parliament’s creation of offences against children:

7.	The protection of children from all forms of sexual abuse underscores the legislative intention behind child protection legislation such as those under the Criminal Code. Children are the most vulnerable members of society and therefore need to be protected. The primary responsibility lies with parents and guardians. Unfortunately, the safety of the family home has not insulated or protected children from sexual abuse. In fact, sexual predators target the most vulnerable members of society – children - who deserve to be loved, nurtured and guided by parents and guardians so that they grow into stable and morally upright members of society. Homes are supposed to provide security for children. Unfortunately, most of the abuse happen in the safety of the family home. Abusers are usually persons who are known or related to victims, persons who in most cases stand in positions of trust in respect of these children. When abuse happens in the safety and sanctity of the home or other places where children are raised, educated, or offered spiritual guidance for instance, perpetrators must be severely punished for this grave dereliction of moral and legal duty and obligation. 

8.	Sexual abuse is a global issue hence the United Nations Convention on the Rights of the child (CRC) obligates member countries to legislate for the protection of children from sexual abuse, among others. Our Parliament had ratified the Convention and accordingly introduced new offences into the Criminal Code, ... (Criminal Code (Sexual Offence and Crimes Against Children Act 2002). This amendment to the Code provided very stiff penalties for sexual abuse that are committed by persons who stand in positions of trust - life imprisonment. This reflects Parliament’s intention, which is clearly that persons who abuse children, more so, those who stand in positions of trust and abuse that trust must be severely punished.  
9.	To that end, it is well worth repeating what the Supreme Court said in Stanley Sabiu v The State (2007) SC 866 (Mogish, Manuhu, Hartshorn JJ) when dismissing the appellant’s appeal against a sentence of 17 years for sexually penetrating his 6year old nephew. The court said at paragraph 10 –
… 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.

10.	The effect of abuse on children is devastating and may be long lasting as well. And to that end I further said:

33.	The Official Queensland Government Website gives a concise summary and insight on the effects of child abuse on survivors. It says that while children respond differently to abuse, the effects on them can be very significant and long lasting. And while it should be noted that the impact of abuse will not be noted in some children, most may experience a range of emotional, psychological, and physical problems including –

•	low self esteem
•	increased fear, guilt, and self-blame
•	distrust of adults or difficulty forming relationships with others
•	disrupted attachments with those who are meant to keep them safe
•	mental health disorders such as anxiety, attachment, post-traumatic stress, and depression disorders
•	self-harming or suicidal thoughts
•	learning disorders, including poor language and cognitive development
•	developmental delay, eating disorders and physical ailments
•	permanent physical injuries or death
•	violent, aggressive, or criminal behaviour or other behavioural problems
•	drug and alcohol abuse and high-risk sexual behaviour.

(See www.qld.gov.au/community/getting-support-health social-issue/support-victims-abuse/child-abuse/what-is-child-abuse/child-abuse-effects)
34.	We can therefore appreciate the devasting effects sexual abuse can have on children and the intention behind child abuse legislation such as those introduced into our Criminal Justice System and Criminal Law.

COMPARATIVE SENTENCES

11.	Below are some cases which I cite for the purpose of consistency in sentencing for this type of offence.

12.	The State v Pennias Mokei (No.2) (2004) N2635: The 33-year-old offender was convicted after trial for sexually penetrating his 13-year-old niece. The act was non-consensual and while the court held that the offence is intrinsically a violent act, there was no evidence of aggravated violence against the victim or cause her any physical injuries. It was an isolated incident and while the offender expressed genuine remorse, he did so after forcing a trial. There was, however, a close relationship of trust. He was a first-time offender and did not cause any further trouble to the victim or her family after the incident but allowed the family to deal with the matter as they saw fit. He was sentenced to 15 years imprisonment.

13.	The State v Samson (2005) N2799: The 17-year-old offender pleaded guilty to sexually penetrating the 13-year-old victim. They lived with their parents on neighbouring oil palm blocks. On the date of the offence the offender sent the victim to fetch him a spade from her house to dig wild fowl eggs and instructed her to take it to him at the edge of the block. When the victim arrived with the spade, he pulled her into the bushes and sexually penetrated her vagina without her consent. The court considered a whole lot of factors, including the following – the offender was a first-time offender, youthful, acted alone, did not inflict any physical injuries on the victim or use any threats or weapons or violence, did not cause any further trouble, pleaded guilty, no relationship of trust, did not infect the victim with a sexually transmitted disease and co-operated with the police. He, however, did not give himself up, did not do anything tangible to repair his wrong, was not genuinely remorseful, and the victim did not consent. He was sentenced to 5 years imprisonment, 3 years of which were suspended with the balance to be served. 

14.	The State v Philip (2014) N5825: The offender aged 20 at time of the offence and an accomplish who was not indicted with the offender in this case came across the victim, aged 15 years at her house. The offender had sexual intercourse with the victim with her consent. The offender’s friend also had intercourse with the victim, but against her will. The court considered that the offender pleaded guilty, was a first-time offender, expressed genuine remorse, did not inflict any physical injuries on the victim and that this was a one-off offence. The only aggravating factor held against the offender was that the victim was 15 years old, which, with due respect is not an aggravating factor but a constituent element of the offence. The offender was sentenced to 5 years imprisonment which was wholly suspended.

15.	The State v Xavier [2014] N5789: The offender followed the victim, a 12-year-old girl, who had been sent by her mother to collect firewood. He approached her, grabbed her, pulled her into the bushes and penetrated her vagina with his penis. He then left the child there and walked away.

16.	The court considered that the offender pleaded guilty, acted alone, was a first-time offender, caused no further trouble to the victim, did not use any weapons or aggravated violence, did not inflict any physical injuries on the victim or infect her with a sexually transmitted infection (STI) and that he was a youthful offender. Against her was that there was a large age difference between him and the victim, no consent and breach of trust. The offender was sentenced to 9 years imprisonment less time in pre-sentence detention. None of the resultant sentence was suspended.

17.	The State v Wanaisu (2013) N5284: The 13-year-old victim was returning from the bush after collecting firewood for her grandmother when the offender confronted her. He hit her on the head and punched her on the face knocking her to the ground. He then grabbed her by her hair and dragged her down to a river amidst the victim's pleas for him to stop. There, he removed her "T" Shirt and skirt, pushed her roughly to the ground and then sexually penetrated her by inserting his penis into her vagina. The victim felt great pain and was crying and bleeding from her vagina. After penetrating the victim, threatened to kill her if she reported to anyone. However, the victim walked home and reported the matter to her parents which resulted in the offender’s arrest.

18.	 The offender was youthful, pleaded guilty, was a first-time offender, co-operated with the police, expressed remorse, was unsophisticated and illiterate, appeared to be destitute and without family support and guidance as both parents we deceased, and the offence was not pre-meditated. Aggravating his offence were the fact that he used violence against the victim and the prevalence of the offence. He was sentenced to 12 years imprisonment less time in pre-sentence detention.

19.	The State v Pastin (2014) N5623: The 18-year-old offender and the 15-year-old victim met one afternoon in the bushes behind the latter’s house where they could chat in private. While they were chatting, the prisoner insisted on having sexual intercourse with victim. It was getting dark, and the victim wanted to leave before her parents started looking for her and so she allowed the prisoner to sexually penetrate her vagina using his penis. She then left and went home.

20.	The following factors lessened the gravity of offender’s offence. He pleaded guilty early to the charge, was a first-time offender, a simple inadequately educated villager, of previous good character, a youthful offender, co-operated with the police and was remorseful. He was verbally abused and physically assaulted by the complainant's parents. He attempted reconciliation with the complainant's line and even offered to marry the complainant to look after her and the child, but this was rejected. The act was consensual, and the complainant was but 2 months shy of the age of consent. Lastly age difference between him and the complainant was only 3 years.

21.	There were, however, a few aggravating factors against him. Apart from the prevalence of the offence, the complainant got pregnant and as a result was forced out of school thus jeopardizing her chances of a good education for a better future for herself and of course the innocent child she bore.  The offender was sentenced to 4 years imprisonment less time in pre-sentence custody.

22.	 Let me now move to the present case.

CURRENT CASE
Antecedents

23.	This prisoner is 21 years of age, single and comes from Kilka Village, Ramba Rot, Hagen Central, Western Highlands Province. He comes from a family of 7 siblings of which he is the last born. His father has passed away, but his mother is still alive. At the time of his arrested, on 11 August 2020, he was doing Grade 9 at Hagen Park Secondary School. He has been in custody for a period of 14 months and 22 days. He has no prior convictions.

Allocutus
24.	In his plea in mitigation, the prisoner said that this was his first offence. He apologized to God and to the Court and said he was sorry for what he did. He pleaded for leniency and asked to be placed on probation.

Submissions
25.	Counsel for the prisoner Ms. Wurr submitted that this is not a worst case and that the prisoner’s mitigating factors outweigh his aggravating factors. Therefore, an appropriate sentence for you ought to be 5 - 7 years from which the period the prisoner had spent in custody ought to be deducted. Lastly, this is an appropriate case for the Court to exercise its discretion to suspend part or whole of the sentence.

26.	Counsel acknowledged the prevalence of the offence of sexual penetration of a child. It is an invasion of the victim’s intimate privacy. Despite the absence of a Victim Impact Statement to confirm the extent of harm to the victim, Counsel submitted that she would have possibly suffered emotional, physical, and mental torture.

27.	Ms. Wurr said that the following factors mitigate the prisoner’s offence –

•	He is a first-time offender
•	He entered an early guilty plea thus saving time for the Court and resources for the State in running a trial.
•	He co-operated with the police by making early admissions.
•	He expressed shame and genuine remorse for what he did.
•	Soon after the offence his people paid compensation which comprised of K1000.00 cash and a pig valued at K4000.00. The prisoner also paid K500.00 to his cousin brother for committing this offence in his premises against his house girl.
•	The age difference between the prisoner and the victim is not too wide – being 7 years only.
•	This was a one-off offence. 
•	He did not abuse a position of trust.
•	He did not infect the victim with a Sexually Infected Infection. (STI)
•	He did not use any offensive weapon.
•	He did not cause any physical injuries on the victim.

28.	Ms. Wurr further submitted that the prisoner and the victim were in a relationship, and this should be treated as an extenuating factor.

29.	The prisoner does have a favourable presentence report. His community is supportive of assisting with his rehabilitation should he be placed on probation. Unfortunately, the views of the victim and her relatives could not be obtained as she left for her home in Enga soon after she was compensated.
 
30.	I do accept the factors cited by Ms. Wurr as mitigating your offence. However, I will not accept her invitation to treat the fact that the prisoner and the victim may have been in a boyfriend and girlfriend relationship as an extenuating or a special mitigating factor at that time. If what the prisoner said in his presentence report were true, it does not explain why he admitted in the facts put to him on arraignment - that he grabbed the victim by the throat, suffocated her and threw her to the ground before penetrating her. Incidentally this confirms what he said in his record of interview as well. 

31.	This to me was a violent assault on the victim and hardly the kind of behaviour expected in the kind of relationship he is alleged to have had with her. I must, however, be quick to say here that prisoner was not indicted with rape. Despite that I shudder to think how this relationship would turn out in the future for the victim if it were to continue to something more permanent.

32.	Mr. Kesan for the State submitted that the prisoner ought to be sentenced to a period between 5 – 6 years. Counsel submitted that while there were no circumstances of aggravation involved, the Court should consider the prevalence of the offence, the age difference between you and the victim which is 7 years, and the fact that you used force to subdue the victim.  I accept that these do in fact aggravate your offence.

Deliberations for Appropriate Sentence
 
33.	I must say that this is not a worst offence. The prisoner should not be served the maximum penalty, which, as we have seen is a period not exceeding 25 years. His aggravating factors are outweighed by his mitigating factors which are quite significant.  He therefore deserves a sentence significantly below the maximum.

34.	The range suggested by counsel is between 5 – 7 years. Should the Court accede or agree to that? Will such a sentence achieve the purpose of sentencing for this offence? In other words, will it promote the intent of Parliament to protect vulnerable children from sexual abuse. Will it have the desired deterrent effect on the prisoner and others who may be similarly inclined? And since he is a youthful offender, will the sentence help to rehabilitate him? These are questions which the Court will have to consider when fixing an appropriate sentence for the prisoner.

35.	While a great majority of violent crimes are now committed by youthful offenders like the offender, thus evoking strong judicial pronouncements that youthfulness no longer is a special mitigating factor, I am nonetheless, of the opinion that the court has a duty to direct youths away from the harmful course which they have charted for yourself, whether intentionally, recklessly or as a response to hormonal changes in their body and primal instincts which  may be hard to control in the bloom of youth. Or as Cannings J put in The State v Samson (supra.) youths are often “prone to act impulsively, immaturely or stupidly”.

36.	This is not to be taken as condoning this type of behaviour, for one should never lose sight of the need to protect children, especially girls from sexual abuse. However, when the offender has just become an adult, as was the case here, the court has a duty to balance the victim’s interest and the greater interest of society and the law with that of the offender

37.	Having said that, the prisoner must be given a sentence that will not only punish him, but more importantly make him take responsibility for his wrongdoing and the harm he caused to the victim, who has obviously lost face in her community, and for all we know, will have to carry the psychological and emotional stigma of having been violated in the most intimate and degrading way for the years to come.

38.	The circumstances of this case are quite similar to those in The State v Xavier and The State v Wanaisu (supra.) where some violence was used to secure the victim’s submission.  The sexual acts there were also non-consensual. Xavier stood in a position of trust in respect of his victim and got 9 years while Wanaisu got 12 years. The prisoner here offered some violence on his victim, but not as much as Wanaisu did. He must therefore get a sentence below that of Wanaisu. How much he will get really depends on the peculiar circumstances of his case as I have alluded to above.

39.	I have considered the prisoner’s mitigating factors, which, indeed outweigh his aggravating factors. These are significant factors. What stands out is the fact that prisoner has owned up to his offence and took some responsibility by compensating the victim. This to me is an indication of remorse. 

40.	Another stand out in this case is the fact that because of his impulsiveness and stupidity in caving into his sexual impulses, the prisoner threw the prospects of a good education and of course a good future to the wind. His minute of pleasure quickly turn into doom, and he now faces the prospect of a long sentence in prison. In his haste to satisfy his sexual cravings he forgot that he was still in school. A Grade 9 level education is hardly one for which one can get a decent job in the formal sector.

41.	The prisoner has been in custody for over a year now. I am sure that things have not been easy for him while he has been in custody.  I am also equally certain that he would have been ruing over and regretting that moment of impulsiveness and recklessness when he decided to take advantage of the victim.  Hopefully he has learnt a hard lesson that crime pays a bitter wage.

Sentence
42.	Having said all these, I should think that an appropriate sentence for the prisoner ought to be 8 years imprisonment. I therefore sentence him to 8 years imprisonment. The period that you spend in pre-sentence detention – 15 months and 22 days is deducted. 

Suspension. 

43.	 Initially the Court had intended to temper the sentence with a wholly suspended sentence. However, since the prisoner has shown contempt for the court and the law, he has also forfeited the Court’s indulgence in that regard. He will serve the full term of the balance of his sentence at Baisu Corrective Institution. 

ORDERS

44.	 The sentence and orders of the Court are therefore:

1.	The prisoner Gabriel Put is sentenced to 8 years imprisonment less the period of 1 year, 3 months and 22 days spent in pre-sentence detention.
2.	He shall serve the balance of his sentence at Baisu Corrective Institution.

Ordered accordingly.

________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner