State v Sipris (No 2) [2003] PGNC 65; N2453 (1 August 2003)

N2453

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1318 of 2002

THE STATE

-V-

KAMBI SIPRIS

Mt. Hagen: Jalina J
2003: 1st August

Criminal Law – Carnal Knowledge of girl under 12 years of age – Girl aged 6 years - Conviction following trial – Prisoner aged 18 years – First Offender – No major physical or mental harm to victim – Victim and prisoner from extended family – Need for protection of young girls – Criminal Code s. 213.

Cases cited:
The State –v- Thomas Pipon [1988-89] PNGLR 179

Counsel:
J. Waine for the State
P. Kumo for the Prisoner

1st August 2003

SENTENCE

JALINA J: You have been found guilty following a trial on a charge that on 15th April 2002 at Avi Block, outside Mt. Hagen, you had unlawful carnal knowledge of the victim who was under the age of 12 years. She was actually aged about 5 years and 6 months having been born on 25th October 1996. The facts surrounding the commission of this crime are set out in my judgment on the verdict which I delivered yesterday so there is no need for me to repeat them here suffice only to say that even though the victim sustained a torn hymen and her vagina was discharging mild yellowish puss with foul smell 5 days after the incident, there is no visible sign nor there is medical evidence that she is presently suffering from some major mental or physical harm.

Another aspect of this case which has been pointed out by defence counsel is that you and the victim are from the same extended family which confirms the fact that your family and the victim’s family live in the same neighbourhood. This to my mind brings this case into the category of sexual offences where breach of trust is involved and in such cases such breach of trust have been considered to be an aggravating factor.

The maximum penalty for this offence is life imprisonment under s. 213 of the Criminal Code although, by the same section, the court is given a discretion to impose a lesser sentence under s. 19 of the Code.

The prescription of penalty of life imprisonment reflects the seriousness with which the legislature viewed this crime. By prescribing such a high penalty the legislature no doubt considered the protection of young girls to be of paramount importance.

Whilst I am certain from the number of years I have been on the bench that quite a lot of cases have been heard by the National Court and then by the Supreme Court on appeal, very few cases involving the violation sexually of very young female children have been publicized let alone reported in the law reports and text books on criminal law is Papua New Guinea. One of the few cases arising out of a charge under s. 213 which have been reported and also commented upon by academic writers is The State –v- Thomas Pipon [1988 – 89] PNGLR 179 where Brunton AJ (as he then was) set some sentencing guidelines when sentencing an 18-year old young first offender who pleaded guilty to sexually molesting an 18-month old baby girl and infecting her with gonorrhea. His Honour said at p185 – 186:

"If the starting point for a contested defilement case, where the accused is mature and there are not other mitigating or aggravating circumstances, is fixed at about five years imprisonment, then there may be seen to be some parity with rape cases. It matters not that a girl under 12 years of age consents to a sex act with a mature man, in my view, because generally the immaturity, the lack of discretion and the dependency of a child negate a true act of free will. That apart, the offence is cast in terms of strict liability, although precociousness may be a mitigating factor when the accused is either young himself, under some physical or mental disability, or very old, but not otherwise.

Defilement is generally an offence of the middle-aged or the old, but occasionally it occurs with the young. When the age-gap between the victim and accused is narrow (victim 11 – 12, and accused 13 – 16) then a sentence appropriate to a juvenile offender is in order. Young first offenders should be treated with leniency whenever possible, and those between the ages of 18 and 22 may well be considered for non-custodial, or partial non-custodial treatment. This may also apply to offenders who are disabled mentally or physically but not otherwise a threat to the public.

The middle of the tariff, four to seven years or so, appears to me to be appropriate for older offenders. The actual sentence imposed may vary depending on the facts – the frequency of the acts, the duration of the relationship, and whether or not any permanent damage has been done to the victim, or the family.

Circumstances of aggravation which may take the sentence beyond five or six years would include offences committed over a long period of time; offences involving a number of children; offences which indicate that the accused is pathologically driven to sex with children; the pregnancy of a young girl; the infliction of a sexually transmitted disease on the victim; the infliction of AIDS on the victim by a person who knows that they have been diagnosed as AIDS positive; offences involving very young children; any of the above in combination with the status of the accused as a person in loco parentis to a child, or to whom the child gives its complete trust; acts of group sex involving children and a number of adults; organized child prostitution (including conspirators, aidors, abettors and counsellors)." After referring to factors which favoured the prisoner and factors which were against him, His Honour said: "We live in an age which is permissive, in which the moral values of our parents and grandparents have been changed. One constraint between the different generation has been the need to protect children from the consequences of their own indiscretions and from the indiscretions of adults. The tragedy of children infected by the AIDS virus through blood transfusions is in point. The wanton infection of a very young child as a consequence of satisfying the lust of a young man is very serious. Gonorrhoea is treatable; AIDS is not; the two are socially associated diseases. However, I remind myself that the accused infected the victim with gonorrhoea, and not AIDS which is a much more serious disease.

In balancing the sentencing principles of not imposing a crushing sentence upon a young first offender who has pleaded guilty, against the need for sanction and deterrence, the gravity of this particular offence weighs against the accused. If we have to choose between the rights of the very young and the rights of young men, then we must protect the children. His relative youth is not much help to him in the circumstances of this case."

His Honour in that case sentenced the offender to 7 years imprisonment.

In deciding the penalty I should impose, I have taken into account the fact that you are young and that it is your first offence.

I have also taken into account the submissions of your lawyer on sentence. I also note that the victim has not suffered any serious physical or mental harm except that her virginity was taken away from her so early and that she would no doubt live with the stigma of having been sexually violated by someone she trusted. You are fortunate that she has not been infected with any diseases as a result of what you did to her.

I however note that you have been convicted following a trial which meant that the young girl had to recount to the court the ordeal she went through. It therefore means that a sentence in the vicinity of that imposed in Pipon’s case would be warranted so as to serve as a deterrent to yourself and other males who may consider violating young females in future.

In all the circumstances of this case, I consider a sentence of 7 years imprisonment in hard labour to be appropriate which I so impose.

I deduct from that sentence the 1 year 3 months and 1 week you have spent in custody which leaves 5 years 8 months and 3 weeks in hard labour.

Taking into account the provisions of The Criminal Law (Compensation) act 1991 and bearing in mind that my immediate incarceration of you may result in the victim receiving no compensation at all, I suspend the whole of that sentence on probation on the following conditions:

1. That you shall pay K5,000 compensation in cash to the victim no later than 1st December 2003. Such payment shall be made to the victim and shall be witnessed by Mr. Kumo and Mr. Waine.
   
2. You and your parents and relatives shall not threaten or argue with the victim and her parents and relatives over this incident and your charge and conviction for the duration of your probation.
   
3. You shall not go near the victim for the duration of your probation.
   
4. You shall be of good behaviour for the duration of your probation.
   

I have ordered the payment of the maximum amount of compensation permitted under The Criminal Law (Compensation) Act 1991 as I am of the view that such an amount would provide some redress for the sexual violation the victim did not deserve particularly from someone she knew and trusted.
_________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor