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State v Talim (No 2) [2021] PGNC 674; N9952 (27 July 2021)

N9952

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 99 OF 2019

THE STATE

V

EMMANUEL TALIM
(NO 2)

Kokopo: Suelip AJ
2021: 21^st May & 27^th July

CRIMINAL LAW – sentence – trial – guilty – sexual penetration of victim under 16 years with fingers s.229A(1) Criminal Code – complainant and accused from same clan – aggravating factors outweigh mitigating factors – advanced age considered – other conditions considered – sentence of 11 years less pre-sentence term – balance wholly suspended with few conditions

Cases Cited

Goli Golu v. State [1979] PNGLR 653
Stanley Sabiu v. State (2007) SC866
State v. Iran Gaira (2015) N5965
State v. Stanley Konda (2014) N5780

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE

27^th July, 2021

1. SUELIP AJ: On 26 November 2020, the prisoner was found guilty after trial on one count of sexual penetration with a child under the age of 16 years, contrary to section 229A(1) of the Criminal Code.

2. This is now my decision on sentence.

Facts

3. The facts are these. On 30 October 2018, between 3pm and 5pm, the prisoner was at Vunakaur village, Toma/Vunadidir LLG, East New Britain Province. On that date, time and place, the complainant, aged 14 years old was on her way to her sister’s house. While on her way to her sister’s house, she met the prisoner. He then grabbed her hand and told her to follow him into the bushes so that he can have sex. The complainant refused and he pulled her into the bushes where he restrained her and had forceful digital sexual intercourse with her two times. Later on, during the evening, he released the complainant, and she went to their house. Her relatives found her and upon questioning her, she revealed what the prisoner had done to her. She was then taken to the hospital and a complaint was laid at Kerevat Police Station. The Police later arrested the prisoner and charged him with rape under section 347(1)(2) of the Criminal Code.

4. His actions contravened section 229A(1) of the Criminal Code, and he was indicted on one count of sexual penetration under that section. He denied the charge but was found guilty after trial.

The offence

5. Section 229A(1) of the Criminal Code states:

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.

(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.

Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

6. The penalty is up to 25 years in jail subject to subsection (2) and (3).
   

Submissions on sentence

7. From the pre-sentence report prepared by Probation Officer Mrs Miriam Ronald, the prisoner is 80 years old and originate from Vunakaur village, Toma/Vunadidir LLG, Gazelle District, East New Britain Province. The report says he lives with his wife Casie Gugunalu at Vunakaur, and they have 8 children and 18 grandchildren. The report further says that he is the only surviving child and all his siblings have passed on.

8. Also, in the report, his wife, his local ward member, the victim and the victim’s grandfather’s views were engaged. It is interesting to note that all their views are in support of the prisoner’s release from prison and that he does not serve a custodial sentence primarily because of his advanced age of 80 years. However, it is also noted in the report that the victim’s family demand a compensation of 100 fathoms of shell monies which is equivalent to K500. His wife says his family is willing to pay the amount demanded but asks that the family be given at least 3 months to make payment. However, the victim’s family demand that the compensation be paid within 1 month.

9. The prisoner has loss of hearing, and so it took longer to run his trial especially when he was giving evidence in the local dialect (Kuanua). This also became an issue when administering allocutus as it was difficult to make him understand what was being said.

10. The prisoner does not have any prior convictions as indicated in the Antecedent Report and this is a mitigating factor. Other mitigating factors include the penetration was digital (not penile), no weapons were used, no injuries were sustained, and this was an isolated incident. I also take into account that he still maintained that he is innocent even after the Court had found him guilty. However, I will give him the benefit of doubt since he is unable to hear clearly what was being said during allocutus and he could not express himself clearly.

11. The aggravating factors against him are these. He pleaded not guilty to the charge and the victim was put through the ordeal of retelling of the unfortunate act he performed on her. Further, the difference between his age and the victim’s age is more than 60 years. The other aggravating factor is that the offence he committed is prevalent in society, particularly in this province.

12. It is trite law that the maximum penalty is reserved for the worse type of cases as held in Goli Golu v. State [1979] PNGLR 653.

13. I consider the following useful guidelines in child sexual penetration cases outlined in the Supreme Court case of Stanley Sabiu v. State (2007) SC866:

(a) Is there only a small age difference between the offender and the victim?

(b) Is the victim not far under the age of 16 years?

(c) Was there consent?

(d) Was there only one offender?

(e) Did the offender use a threatening weapon and not use aggravated physical violence?

(f) Did the offender cause physical injury and pass on a sexually transmitted disease to the victim?

(g) Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?

(h) Was it an isolated incident?

(i) Did the offender give himself up after the incident?

(j) Did the offender cooperate with the police with their investigations?

(k) Has the offender done anything tangible towards repairing his wrong such as offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did?

(l) Has the offender caused further trouble to the victim or the victim’s family since the incident?

(m) Has the offender pleaded guilty?

(n) Has the offender genuinely expressed remorse?

(o) Is this his first offence?

(p) Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?

(q) Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

14. In that case, the Supreme Court held that the starting point is 15 years and confirmed the sentence of 17 years to be appropriate.

15. Further, in the case of State v. Iran Gaira (2015) N5965, Toliken J agreed with Cannings J in State v. Stanley Konda (2014) N5780, that for digital penetration, the starting point for a guilty plea is 10 years which can be adjusted upwards or downwards, depending on the circumstances of each particular case.

Consideration

16. As this is not a worse type case, it does not warrant the maximum penalty of 25 years.

17. The starting point in most decided case authorities which I have read is from 5 to 20 years and I agree with my brothers Cannings J and Toliken J that the starting point for guilty plea is 10 years. In this case, the prisoner denied the charge and the victim had to relive the ordeal of retelling her story in court. For that, his sentence will be adjusted upwards. Having said that, I consider the pre-sentence report to be in his favor especially in consideration of his advanced age of 80 years coupled with his loss of hearing and the condition of his skin. The victim’s family, however, want compensation of 100 fathoms of shell money which is equivalent to K500 before he can return to the community.

18. He was arrested on 26 November 2018 and have since been in custody for a total of 2 years and 8 months. He is entitled to deduction of this period from any sentence imposed on him pursuant to s3(2) of the Criminal Justice (Sentence) Act 1986.

19. I am prepared to suspend some of his sentence because his advanced age, loss of hearing and skin itchiness. In doing so, I will increase the amount of compensation he will pay to the victim and her family.

20. Hence, in consideration of all the above, I sentence the prisoner to 11 years imprisonment less his pre-sentence term of 2 years and 8 months which leaves a balance of 8 years and 4 months. Because of his advanced age, loss of hearing and skin itchiness, I will suspend the balance of his sentence on the condition that he pays 200 fathoms of shell money within 3 months from today to be witnessed by his local ward member and the Probation Officer.

Orders

21. The Orders of the Court are:

(i) He is sentenced to 11 years imprisonment.
(ii) His pre-sentence term of 2 years and 8 months is deducted.

(iii) The balance of his sentence is wholly suspended on the following conditions:

(a) he will pay 200 fathoms of shell money to the victim and her family within 3 months from today to be witnessed by his ward member and the Probation Officer.

(b) he will not commit similar or another offence.

(c) if he fails to comply with these two conditions, he will be arrested and brought to this Court to show cause as to why he will not spend the balance of his sentence in prison.
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