State v Mangawi [2003] PGNC 78; N2419 (13 June 2003)

N2419

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1119 of 2001

THE STATE

-V-

DAMIEN MANGAWI

WEWAK: KANDAKASI, J.
2003: 6th and 13th June

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Unlawful carnal knowledge of girl under 12 years – Guilty plea – Offender with no prior convictions - Substantial age difference between prisoner and victim – Offences committed in breach of trust situation – No expression of remorse – Need and call for stiffer penalties against persons offending against children considered - A punitive and deterrent sentence called for – Sentence of 12 years imprisonment imposed - Criminal Code ss. 213 and 19.

Cases cited:
The State v. Peter Yawoma (Unreported judgement) N2032.
The State v. Joseph Minjihau (unreported judgement) N2243.
The State v. Moki Lepi (No. 2) (22/07/02) N2278.
The State v. Bernard Konombo (21/11/97) N1742.
John Aubuku -v- The State [1987] PNGLR 267.
The State -v- Sotie Apusa [1989] PNGLR 170.
James Mora Meaoa v. The State [1996] PNGLR 280.
Thomas Waim v. The State (02/05/97) SC519.
Eddie Peter v. The State (2) N2297.
The State v. Edward Toude & Ors (2) N2299 .
The State v. Otto Paulus (21/05/02) CR NO. 51 of 2002.
Grayson Andowa -v- The State (01/10/98) SC 576.

Counsels:

Mr. P. Kaluwin for the State

Mr. G. Korei for the Accused

13th June, 2003

KANDAKASI J: On Friday last week you pleaded guilty to one charge of unlawful carnal knowledge of a girl under twelve (12) years. After having heard you and your lawyer’s address on sentence, as well as that of the State, I reserved a ruling on your sentence to today. The adjournment was to enable me to consider the submissions and the relevant law on this kind of cases before arriving at a sentence for you. This is now the Court’s decision on sentence.

Relevant Facts

The relevant facts are simply these. On Tuesday 17th of August 2001, you took your little niece, DD to a nearby creek at your village, Andra, Kubalia, East Sepik Province. Whilst there, you took off her underwear and pushed her down on the ground. She landed face up. You then opened her legs, put your penis into her vagina and had sex with her. Your victim felt a lot of pain and cried. Her cry was heard back in the village. After having satisfied yourself, you told her not to tell her mother and took her back into the village.

The victim did not tell anyone about what you did to her the same day. But the next day, she had difficulty urinating because of your forceful sexual intercourse with her caused some injuries that hurt. Her mother asked her as to the cause of that and she told her mother about what you did to her. Medical evidence confirms that the victim had a torn hymen at 9:00 o’clock position and a minor right labia majora bruise. It also confirms that there was a vaginal penetration.

You told the Police, in your record of interview, that you were the victim’s paternal uncle. At the time of the offence and your record of interview, you told the Police you were 16 years old whilst the victim was only 3 years old. So therefore, there was a big difference in your age between her and you. You were much older than she was. You also told the Police that you did what you did because you had a strong desire to have sex.

There is no evidence of you saying sorry and making it right with the victim and her parents, especially the mother and her side. You neither expressed any remorse in Court nor did you promise not to repeat the offence or any other offence in future. There is also no evidence that the victim is now functioning well without any psychological set back.

The offence

Section 213 of the Criminal Code creates and prescribes the offence and the penalty in these terms:

"(1) A person who has unlawful carnal knowledge of a girl under the age of 12 years is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life."

Parliament considered then and even now that, sexual offences against young children very serious. This is mainly because this category of our population is very vulnerable and defenceless. Yet they are the country’s leaders and people of tomorrow. It is an accepted medical or scientific fact that whatever happens in a person’s earlier life remains long in their memories. Further, as I noted in The State v. Peter Yawoma (Unreported judgement) N2032, even though there might be no evidence of any physical harm, numerous sexual and other violent offence cases clearly show that, victims of such offences continue to suffer ongoing psychological problems. In countries like Australia and elsewhere, there are readily available appropriate medical services to assist victims to overcome such problems. But the situation is not the same here. Such specialist medical services are almost non-existent. This means, victims of such offences are left with no assistance at all. Hence the need to protect the young against any bad experience. Offences against young children are prevalent these days. That means past sentences have failed to deter offenders like you from offending against them.

Parliament has therefore prescribed the maximum sentence of life imprisonment and very recently it passed a new law to make it easier to convict and punish those who offend against young children. This is the highest institution of the land responding to this serious crime against our young people. It is also in response not only to a national but international call for greater protection of our children.

Bearing this in mind, (except for the passing of the new law), in The State v. Joseph Minjihau (unreported judgement) N2243, I sentenced an elderly married man with children to 5 years imprisonment in hard labour here in Wewak. His offence was committing unlawful carnal knowledge of a girl under the age of 16 years contrary to s.216 of the Criminal Code, where the maximum prescribed penalty is 5 years imprisonment.

Earlier on in The State v. Moki Lepi (No. 2) (22/07/02) N2278, I decided to impose a term of 8 years for attempted unlawful carnal knowledge of a girl under 10 years and a further 3 years for indecently dealing with a girl under 16 years. I ordered these sentences to be served cumulatively. That was in a case of a breach of a trust relationship where there was a distance relationship between the victim and the offender through the offender’s marriage to the victim’s aunt. The victim was about 5 years old and her offender was a married man with children of his own.

Much earlier on in The State v. Peter Yawoma (supra), I imposed a sentence of 6 years against the offender. In that case, the prisoner was charged with attempted rape of a 3 years and 4 months old girl. The prisoner was the victim’s paternal uncle. He had taken the victim out of her parents’ house where she was sleeping. He attempted to forcefully have sexual intercourse with the victim but was not able to succeed because of the tender age of the victim. The victim suffered some lacerations and bruises. The prisoner also pleaded guilty and was a first time offender. He expressed genuine remorse over his conduct and acknowledged that he was wrong.

Your lawyer referred me to the case of The State v. Bernard Konombo (21/11/97) N1742. In that case, the prisoner was charged under s. 213 for having unlawful carnal knowledge then aged 9 years and 4 months. The prisoner had a prior conviction for the same offence a few months before and that he had infected the victim with a sexually transmitted decease, gonorrhoea. He was given a sentence of 4 years.

This is the only judgement on point for an offence under s.213 of the Code. In my view, it correctly states that an offence under s.213 is similar to rape, an offence under s. 347 of the Code. The only distinction between the two is that in the case of rape, consent is a defence, whilst it does not matter whether there was consent of the victim for an offence under s.213. Accordingly, in the absence of any sentencing guideline, those set by John Aubuku -v- The State [1987] PNGLR 267 should serve as the relevant guidelines with the necessary modification.

Given this, I do not accept with respect that it is appropriate to have any regard to the guidelines suggested by the National Court in The State -v- Sotie Apusa [1989] PNGLR 170, as did the Court in that judgement. In any case, the guidelines suggested are in relation to a case of a charge under s. 216 and not 213. This is important because the prescribed sentences are clearly and substantially different amongst other considerations.

Sentences for rape following the guidelines set by John Aubuku -v- The State (supra) case have been increased. This has been particularly done in the area of rape in the case of the offence being committed in breach of a legal or de facto trust in the offender by the victim. The Supreme Court in James Mora Meaoa v. The State [1996] PNGLR 280, confirmed this. That was in the case of three men raping a twelve (12) year old girl immediately following a shipwreck. The victim was from the inland and was not able to swim to safety. So the appellant helped her to safety. Soon thereafter he and the other two men raped her. The National Court sentenced him to 14 years in hard labour. The Supreme Court on appeal affirmed that.

The Supreme Court in Thomas Waim v. The State (02/05/97) SC519, endorsed the view that the sentencing tariffs mentioned in John Aubuku -v- The State (supra) were outdated. The Supreme Court therefore approved an increase in the tariffs. But it said, that should be done in a way that represents no quantum leap. Since then, I noted that the level of such violent crimes as rape and armed robbery has not decreased. Instead, there has been a quantum leap. Despite that, the sentences have been too pitifully low. I therefore suggested that there should be a quantum leap in sentences to meet the quantum leap in the offences: See Eddie Peter v. The State (2) N2297 and The State v. Edward Toude & Ors (2) N2299.

Bearing these in mind, I have in The State v. Eddie Peter (supra), imposed a sentence of 15 years. That was in a case of one on one rape after a trial. The offence was committed against a schoolgirl in breach of a de facto trust by the offender in relation to the victim.

More recently, in The State v. Otto Paulus (21/05/02) CR NO. 51 of 2002, I imposed a sentence of 9 years in hard labour for attempted rape contrary to s. 348 of the Code which carries a maximum penalty of 14 years. That was also in a case of a de factor trust and on a guilty plea. The victim was a married woman and she sustained knife wound injuries as a result of a struggle between her and the prisoner.

Your Case

In your case, I note that you committed a serious offence against your own niece. Of the two of you, you were much older than she was. So she was much more vulnerable and younger than you. She had no expectation that you would do such a thing to her, given your relationship to her but you did. What you did is in fact rape. Both rape and the charge you pleaded guilty to carry the maximum penalty of life imprisonment.

The victim, your niece suffered some physical pain and injury to her vagina and no doubt she must have suffered psychologically too. Her psychological problems will be with her for sometime, if not her lifetime. It will be much more painful for her to realise the person responsible for her sufferings was you and not some other person.

The offence you committed is prevalent and it requires a strong deterrent sentence. The sentences imposed to date seem not to be deterring other offenders like you and any other like-minded person. As noted elsewhere already, Parliament prescribed life imprisonment as the maximum penalty. The community, therefore, rightfully expects the Courts to impose sterner sentences to help deter the offenders from offending again and to deter other would be offenders. Hence, the onus is on a prisoner to demonstrate a case justifying the imposing of a lower sentence. I have taken that view on the basis that the presumption of innocence under s. 37 of our Constitution is only up to the point of being proven guilty according to law. This is in my view, is apparent from of the phrase "presumed innocent until proven guilty according to law".

This is particularly important in your case because you have not expressed any remorse. Instead, you simply asked for mercy upon you. You did not show any mercy to the helpless little child. It is an accepted fact that there is a tendency in people committing sexual offences against close relatives to re-offend. The Supreme Court judgement in Grayson Andowa -v- The State (01/10/98) SC 576 confirms this and highlights the need to prevent it before its is repeated.

So the question then is, have you made out a case for a sentence less than the prescribed maximum of life imprisonment? I find there are only two factors in your favour or in your mitigation. Firstly, you have no prior conviction. This means you have not been in trouble with the law before. The offence you committed in this case is your first and this is the first time you have been charged and convicted with a criminal offence.

Secondly, you pleaded guilty to the charge. That saved the State time and costs and of course this Court’s time. This also saved the victim further anguish, pain and trouble of coming into Court and reliving her bad memories.

Thirdly, I note that you did not use any dangerous weapon or any thing like that to achieve your evil objective and did not cause much of a physical damage. But in my view, that does not really matter because she was very young and vulnerable and she was in no position to defend herself.

In these circumstances, I find that you have not made out a case for more leniency under s.19 of the Criminal Code than necessary. I would have had no hesitation to impose prescribed maximum sentence of life imprisonment. However, I consider it necessary and appropriate that the sentence should reflect your guilty plea and the fact that you are a first time offender. I therefore consider a sentence of 12 years appropriate, less the time you already spent in custody. I order that you serve the balance of that term in hard labour. A Warrant of Commitment will be forthwith issued for your remand at the Boystown.

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Lawyers for the State: Public Prosecutor

Lawyers for the Accused: Public Solicitor