N11373
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 600 OF 2023

THE STATE

V

TAFOGONA BEURA

Buimo / Lae:  Kupmain. AJ
2023:      08th and 09th November
07th and 12th December

CRIMINAL LAW – Sentence – Sexual penetration of a child under 12 years –Penile penetration of vagina - Child three years old - Definition of Toddler considered - Toddlers are very vulnerable group of children – Mitigating and aggravating factors considered - Aggravating factors overwhelming - Criminal Code Ch. 262, s 229A (1)(2).

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1983] PNGLR 92
Lawrence Simbe -v- The State [1994] PNGLR 38
Rex Lialu -v- The State [1990] PNGLR 487
Stanley Sabiu -v- The State [2007] PGSC 24; SC866
State -v- Biason Benson Samson (2005) N2799
Joe Nawa -v- The State (2007) SC1148.
State -v- Hebrus Amon (2018) N7634.
State -v- Nickolas Totoko (2021) N9953.
State -v- Bonny Gongi Paulus (2018) N7339.
State -v- Tonny Kupin (2009) N3641.
State -v- Pennias Mokei (2004) N2635.
State -v- Jessie Chadrol (2011) N4648, 
State -v- Amu Aru (2016) N6917.
Sate v Kupeto (2005) N2807
State v Huani (No.2) (2009) N4473
Yalibakut v State (2006) SC890
Noah v State (2007) SC1148

Counsel
Ms. Matana, for the State
Mr. Nbige, for the prisoner

SENTENCE

1.	KUPMAIN. AJ: 	This is my decision on sentence of the prisoner Tafogona Beura who pleaded guilty to one count of sexual penetration of a female child under 12 years of age. A charge brought under Section 229A (1) and (2) of the Criminal Code Act.

CHARGE

2.	On an Indictment dated 09th November 2023 and presented on the same date, State charged the accused with one count of Sexual Penetration of a child under 12 years of age. This charge was brought under Section 229A (1) and (2) of the Criminal Code Act. Ch. 262. 

3.	The charge on the Indictment was that the prisoner, Tafogona Beura of Hangunamura Village, Kainantu, Eastern Highlands Province, on the 13th day of January 2023 in Lae sexually penetrated a child under the age of 16 years old, identified (only by her initials) as J.H.Y. by inserting his penis into her vagina. J H Y at that time was 3 years old and was therefore under 12 years.

4.	The maximum penalty for this charge under Section 229A (1)(2) of the Criminal Code Act Ch.262. is, subject to Section 19, life imprisonment. 

Section 229A (1) and (2) of the Criminal Code Act Ch.262 is in the following terms:

“SECTION 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, and the offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.” 

ISSUE

5.	The issue before this court is “what is the appropriate sentence to be imposed in this case?” In determining this issue, the courts have over the years developed some general principles to guide the courts to arrive at the appropriate sentence.

GENERAL PRINCIPLES ON SENTENCE

6.	The general principles relating to sentence is clear in our jurisdiction. Starting off with the court’s Section 19 sentencing discretion under the Criminal Code to impose penalty other the maximum. This court is also aware that the maximum sentence is normally reserved for the worst category of cases. Goli Golu -v- The State [1979] PNGLR 653 and Avia Aihi -v- The State (No.3) [1982] PNGLR 92. It is trite law that each individual case must be decided on its own facts and circumstances. Lawrence Simbe -v- The State [1994] PNGLR 38. This court will adopt and apply these general principles of law on sentencing in this case before me.

7.	The approach to sentencing which I adopt and apply in this case is the principle as stated in the case of Rex Lialu -v- The State [1990] PNGLR 487. That is that the court must have regard to the all the aggregate effect of all relevant considerations and then determine and appropriate penalty. The aggregate effect come from several considerations such as the circumstances giving rise to the commission of the offence; the personal circumstance of the offender; and the mitigating and aggravating factors and whether there are any extenuating circumstances or special aggravating circumstances.

FACTS

8.	The brief facts which the offender pleaded guilty to were that the complainant child; identified (only by her initials) as J.H.Y was a 3 year old female child and was living with her parents at Awagasi, Kamkumung, Lae. The offender was 50 years old at the time of the offence. It was alleged that the offender’s sister stole the complainant child JHY at Awagasi on the 23rd day of December 2022 and gave the child to the offender who took custody of the complainant/child and kept her at his house at 9 mile in Lae.

9.	Then on the 13th day of January 2023 at around midnight, the offender took the complainant into the bushes close to his house at 9 mile in Lae and sexually penetrated the complainant child by inserting his penis into her vagina. The child was crying and a young lady by the name of Maria Kua heard her crying and flashed her mobile phone torch and show the offender naked with the child sitting on his legs. The young lady did not reported the matter quickly. 

10.	Then on the 17th of January 2023 the offender locked the child in his house and went to the market at 9 mile. The neighbours heard the little girl crying so they broke down the door and went into the house and saw the complainant child bleeding from her genital area. The child rushed to the Angau General Hospital and the offender was also apprehended at the 9 mile market in Lae. Medical examination confirmed sexual penetration and noted bleeding on the complainant child’s genital areas. 

11.	The offender pleaded guilty and was subsequently convicted of the charge on the indictment.

Other facts relevant for sentence

12.	On the evidence tendered as part of the committal court depositions established other facts relevant for sentencing purposes and they are as follows:

1.	That the medical examination of the complainant’s genital areas revealed that blood stains were observed on the entire inner and outer vulva. The hymen and the vaginal opening could not be examined due to tenderness. Anal examination could not be conducted due to tenderness and also high vaginal swab could not be taken due to tenderness. It was concluded that “Due to extensive genital injury the survivor sustained she was referred to Children’s Outpatient Department” for the injuries to be treated.
2.	That in the record of interview the offender did admitted that the night before the 17th of January 2023 he had sex with the child and she was bleeding from the injury sustained so he locked her in the house and went to the market. The neighbours heard the child crying and broke down door of the house and saw that she was lying naked in a pool of blood and was rushed her to the hospital.

ANTECEDENTS

13.	As per the antecedent report the prisoner has no prior conviction which means this is his first time to be before this court and this goes in favour of the prisoner. 

PERSONAL PARTICULARS

14.	Other personal particulars of the prisoner are that he is 50 years old and comes from Hangunamura Village, in Kainantu Eastern Highlands Province. He is married with 6 children and he had completed grade 10.

ALLOCUTUS

15.	During allocutus the prisoner said he fell into temptation by the devil and he did what he did. He said; “I do not deny it. All the facts are true and I accept it. Nothing to say. That’s all.” Although he did not express remorse during allocutus but his demeanour appeared to show that. In his Record of Interview with the police at question-and-answer number 22 he did expressed remorse. The question was:

Q22:	Tell me, between December 2022 till Tuesday 17th January 2023, you were continuing to rape her, what will you say about this?

Ans:	Yes, it is true I did it, I am sorry.

16.	I accept that the prisoner showed signs of remorse during allocutus. 

SUBMISSIONS

Defence submissions

17.	Mr. Ngibe for and on behalf of the prisoner submitted that this is not the
worst case. He cited several mitigating factors, and they are:

1.	That there were no major injuries caused.
2.	No sexually transmitted diseases were passed.
3.	No weapons or threats of violence were used.
4.	First time offender
5.	Guilty plea
6.	Acted alone
7.	No existence of special relationship 
8.	Prisoner was assaulted by people at the market.

18.	Counsel then asked this court to take those mitigating factors into consideration. I take all those factors in favour of the prisoner into consideration except factor number one which I do not accept. On the evidence before this court as per the medical report the injuries sustained by the complainant child was very serious in nature. It was life threatening. The child could have died of loss of blood through continuous bleeding from her genital area. That is why she was rushed to the Children’s Outpatient Department quickly. 

19.	Counsel for the prisoner in making submission on the sentencing guidelines referred this court to the Supreme Court case of Sabiu -v- The State [2007] PGSC 24; SC 866 which adopted the ruling in the National Court case of State -v- Biason Benson Samson (2005) N2799, in which His Honour Justice Cannings stipulated a number of considerations which a sentencing court should consider when determining an appropriate sentence in cases of sexual penetration of a child under 16 years and those under 12 years of age. These considerations are very good guide and I adopt and apply them in this case.

20.	Defence further submitted that this court follow the ruling in the case of Sabiu -v- The State [2007] SC 866 (supra) where it was held that for cases of sexual penetration of a child under 12 years the starting point should be 15 years, and depending on the mitigating and aggravating factors can either go up or go down. Counsel referred the court to a number of comparable cases (six of them) to guide this court. These cases involve sexual penetration of a child under 12 years old and the sentences range from 10 to 17 years imprisonment. The cases referred to are:

1.	Sabiu -v- The State [2007] SC 866. 
Offender was the maternal uncle of the child who pleaded guilty to sexually penetrating the child who was 6 years old. Sentenced to 17 years.
2.	Nawa -v- The State [2007] SC 1148.
Step-father pleaded guilty to sexual penetration of his step-daughter who was 8 years old at the time of the offence. He was sentenced to 17 years.
3.	State -v- Amon [2018] N7634.
Offender pleaded guilty to sexual penetration of a 9 year old child by inserting his penis into her vagina. The child was living with the offender and his family at the time of the offence. He was sentenced to 12 years.
4.	State -v- Totoko [2021] N9953.
Offender aged 66 pleaded guilty to sexual penetration of a 5 year old child in the nearby bushes by inserting his penis into her vagina. He was sentenced to 12 years.
5.	State -v- Paulus [2018] N7339.
Offender aged 25 pleaded guilty to sexual penetration of an 8 year old child by inserting his finger and penis into her vagina. He was sentenced to 10 years.
6.	State -v- Kupin [2009] N3641.
Offender aged 50 pleaded guilty to sexual penetration of a 9 year old child in the nearby bushes by inserting his penis into her vagina. He was sentenced to 10 years.

21.	Mr. Ngibe therefore submitted the appropriate head sentence should be within the range of 10 and 12 years imprisonment.

State submissions

22.	Ms. Matana for the State on the other hand submitted that the court take into account the following factors as aggravating in this case:

1.	That the child was 3 years old. She was a toddler at the time of the offence.
2.	There was a huge age gap of 47 years between the offender and the child.
3.	There was an actual sexual penetration
4.	The complainant child sustained injuries to her genital areas
5.	The complainant child was stolen from her parents and the offender denied her right to her parents
6.	The complainant child was abused both physically and mentally and she will be traumatized for the rest of her life
7.	There was some pre-planning by the offender
8.	The seriousness of the offence, and
9.	Prevalence of the offence.

23.	I accept and take these factors as aggravating in this case before me. The offender also admitted sexually penetrating the complainant child on the night before 17th January 2023 when she sustained injuries as well. This shows that it was not a one of incident. This is an aggravating factor. 

24.	State also referred this court with a number of cases. They are:

1.	State -v- Pennias Mokei (2004) N2635.

Here the prisoner was convicted of sexual penetration of a child under 16 years and was sentenced to 15 years IHL

2.	State -v- Jessie Chadrol (2011) N4648.

Here the prisoner was sentenced to 6 years IHL and wholly suspended and placed on probation. He pleaded guilty to sexually penetrating his girl friend who was 13 years old and the offender was 17 years old at that time. 

25.	I accept and adopt the considerations relevant when determining sentences for cases of sexual penetration of children.

26.	Counsel for the State also referred the court to the case of:

1.	State -v- Aru (2016) N6917.

First time offender pleaded guilty to sexual penetration of a 9 year old child. He abused a position of trust. He was sentenced to 15 years imprisonment.

2.	State -v- Paulus (2018) N7339.

Offender aged 25 pleaded guilty to sexual penetration of an 8 year old child by inserting his finger and penis into her vagina. He was sentenced to 10 years.

27.	State further submitted that the aggravating factors outweigh the mitigating factors and that this case was an extreme case of sexual penetration as the child was stolen and taken to another location and the offender kept her in his house from December 23rd, 2022 until January 17th 2023 and in that period he committed this acts of sexual penetration. State further submitted that the trauma that the 3 year old child went through cannot be justified in any way. Even if the offender admits, corporates and apologizes for what he did, there is no way the child can get back to living a normal life after the offence. State further submitted that when some good neighbours heard her cry, they broke down the door to the offender’s house and saved her. State also urged the court to be mindful of the policy reasons behind this legislative changes to the Criminal Code to protect the children. State asked the court to impose a sentence which was punitive in nature and deterrent and submitted for a custodial sentence within the range of 10 to 15 years.

DELIBERATIONS

28.	I have taken into consideration the personal particulars and the lack of prior conviction as per the antecedent report of the offender. I have also taken into account his statement on allocutus and also the mitigating factors which are in his favour. I have also taken into account the aggravating factors which are present in this case. I have also considered the comparable cases which both counsels have referred the court to. 

This court is about to sentence a prisoner who is a father of 6 children who is a 50 year old adult male who sexually penetrated a child who was three years old and child sustained serious bodily injuries. The child was traumatized and this will definitely affect the growth and development of the child physically and psychologically for a long time. 

29.	The child was a toddler. Wikipedia defines a toddler as;
 
“A toddler is a child approximately 1 to 3 years old, though definitions vary. The toddler years are a time of great cognitive, emotional and social development.”

30.	Some experts such as Simone Davies in her article titled “Looking after Toddlers is hard – and what we can do about it,” which was published on the website - https://themontessorinotebook.com, stated this and I quote:

	“It’s hard because:
We have to be our toddler’s pre-frontal cortex. As my friend Jeanne – Marie says, “It’s our job to keep them safe.” They follow their urges, for example to climb on the table and do not use the rational part of their brain to make these decisions.”

31.	Therefore, toddlers are a very vulnerable group of children, and they need our constant care and attention. They can wonder off without notifying their parents and be stolen, abducted or lured easily, like in this case. They can cross a busiest road without notifying their parents. The prisoner, who is the father of 6 children, was in a better position to know what is right and what is wrong and quickly enquired about the child’s parents and returned the child. Instead, the prisoner continued to keep the child for 3 to 4 weeks and subjected her to sexual assault which I regard as very in-human and gross. 

32.	Because of the tender age of the toddler, the child placed great trust in the offender. The child believed that the offender was her parent which she was going to learn from and imitate. I accept that she placed her trust in the offender and when he subjected the child to sexual assault, he had breached that trust. She was traumatised.

33.	Because of her tender age (being a toddler) the child placed trust on the offender who was the only adult person she was with. She thought he was the person whom she was going to learn from and imitate. He breached that trust when he sexually assaulted her. She was traumatized.

34.	 That which is in favour of the prisoner, apart from his personal particulars, is that he does not have any other prior convictions. This is his first time to be before this court. Also important is that he pleaded guilty, which the State had benefited greatly in that regard. Saved the State time and resources to run the trial and credit must be accorded to the prisoner. He appeared to show remorse. I take all those matters into consideration. 

35.	The aggregate effect of all these relevant considerations is that this case fall just short of a worst case scenario. Hence, the maximum sentence of life imprisonment is not applicable, but a term of years is appropriate.

36.	I accept the submission by the State that there has to be a custodial sentence and it must be punitive and deterring.

37.	I have considered a number of other  comparable cases as well. 

38.	Firstly, the case of Sate v Kupeto (2005) N2807. In that case the offender was sentenced to 17 years IHL for a charge under Section 229 A (1)(2)

39.	Next case is that of  State v Huani (No.2) (2009) N4473. Here a 50 year old offender was sentenced to 17 years IHL for sexual penetration of a 6 year old girl who was his niece. He was a first time offender.

40.	The case of Yalibakut v State (2006) SC890. The offender in this case was sentenced to 17 years IHL. It was a guilty plea where the offender sexually penetrated the victim who was 11 years old. There was consent. Supreme Court reduced the sentence to 14 years IHL

41.	I also cite the case of Noah v State (2007) SC1148. The prisoner pleaded guilty to sexually penetrating an 8-year-old step-daughter. It was a penal penetration. The National Court imposed a 20 year sentence but on appeal it was reduced to 17 years in hard labour. 

42.	I take all those cases into consideration in this case. I have decided to impose the following sentence:

SENTENCE

43.	The prisoner is sentenced to 20 years in hard labour less time in custody which is 10 months, 2 weeks, 6 days. The prisoner shall serve the balance of 19 years, 1 month, 1 week,1 day IHL.

44.	I am also mindful of the advanced age of the prisoner. His early guilty plea. I am prepared to suspend part of the sentence. In the exercise of my discretion. I suspend 2 years, 1 month, 1 week and 1 day. The prisoner shall serve the balance of 17 years IHL.
_______________________________________________________________
P Kaluwin, Public Prosecutor:	Lawyer for the State 
L B Mamu, Public Solicitor:	Lawyer for the Prisoner