State v Mokei (No 2) [2004] PGNC 129; N2635 (26 August 2004)

N2635

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 459 0F 2004

THE STATE

V

PENNIAS MOKEI (NO 2)

WEWAK : CANNINGS J
23, 26 AUGUST 2004

CRIMINAL LAW – indictable offence – Criminal Code, Division IV.2A – Sexual Offences Against Children – Section 229A, engaging in act of sexual penetration with a child under the age of 16 years – maximum penalty of imprisonment for life – decision-making process – significance of new law – factors relevant to sentence – application of factors – assessment of sentence – decision on sentence.

Cases cited:
Simon Kama v The State (2004) SC740
The State v Luke Sitban (2004) N2572

Counsel:
Mr J Wala for the State
Mr L Siminji for the accused

CANNINGS J:

INTRODUCTION

This is a decision on sentence. The prisoner, Pennias Mokei, was convicted on 23 August 2004 of the offence of sexual penetration of a child under the age of 16 years. This is an offence under Section 229A(1) of the Criminal Code.

PENALTY REGIME

To determine the appropriate penalty it is necessary to have regard to Sections 229A, 6A and 19 of the Criminal Code.

Starting point

Section 229A is the starting point. It states:

(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, 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.

The penalty regime therefore is:

• if, at the time of the offence, the child was aged 12 years or more AND there was not an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to 25 years imprisonment; but
  
• if, at the time of the offence, either the child was under the age of 12 years OR there was an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to life imprisonment.
  

Relationship of trust, authority or dependency

This term is defined by Section 6A of the Criminal Code, which states:

(1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where—

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care and control.

Discretion as to penalty

Though Section 229A makes an offender liable for 25 years or life imprisonment, depending on the circumstances, Sections 19(1)(a), 19(1)(d) and 19(6) confer a discretion on the Court to sentence the offender to a lesser term or to suspend part or all of the sentence.

MAXIMUM PENALTY IN THE PRESENT CASE

In this case the child who was sexually penetrated by the prisoner was over the age of 12 years. So the important matter to determine at the outset is whether, at the time of the offence, there was an existing relationship of trust, authority or dependency between them.

The offence was committed on 25 June 2003. The evidence revealed that at that time the prisoner was a member of the extended family of the Wani household at Masandanai Camp, Wewak. He was regarded as an uncle by the child in question. He was treated by other members of the family as if he was a member of their family. So for all intents and purposes the offender, Pennias Mokei, was an uncle to the child involved, the complainant. In his submissions on penalty Mr Siminji, for the prisoner, conceded this point. Accordingly the Court finds that there was an existing relationship of trust, authority or dependency by virtue of Section 6A(2)(c).

This means that the prisoner is liable to imprisonment for life, under Section 229A(3).

DECISION-MAKING PROCESS

In making a decision on sentence I adopted the following decision-making process:

1. general observations are made on the significance of the new law and the seriousness of the offence;
   
2. the prisoner’s antecedents are set out;
   
3. the prisoner’s statement on allocutus is set out;
   
4. the submissions of counsel for the prisoner and counsel for the State are set out;
   
5. the factors that, in my assessment, need to be taken into account in this type of case when deciding on sentence are set out;
   
6. those factors are applied to this case;
   
7. a head sentence is assessed;
   
8. consideration is given to whether part or all of the sentence should be suspended; and
   
9. the formal decision on sentence is summarised.
   

SIGNIFICANCE OF NEW LAW

In Papua New Guinea today the abuse, in particular sexual abuse, of children has become a burning issue. This came to the fore two years ago when the Parliament made significant amendments to the Criminal Code. Two new divisions were added.

Division IV.2A – sexual offences against children

This contains the following sections:

229A – sexual penetration of a child [the offence of which the prisoner has been convicted]

229B – sexual touching

229C – indecent act directed at a child

229D – persistent sexual abuse of a child

229E – abuse of trust, authority or dependency

229F – consent no defence

229G – defence – marriage

229H – corroboration not required

229I – rule of evidence.

Division IV.2B – commercial sexual exploitation of children

This contains the following sections:

229J – interpretation

229K – obtaining the services of a child prostitute

229L – offering or engaging a child for prostitution

229M – facilitating or allowing child prostitution

229N – receiving a benefit from child prostitution

229O – permitting premises to be used for child prostitution

229P – mistake as to age

229Q – child not to be charged

229R – children not to be used for pornographic purposes

229S – producing and distributing child pornography

229T – possession of child pornography

229U – defence of innocent purpose

229V – defence of official use.

Purpose and policy of new law

The number of new provisions that have been added to the Criminal Code and their subject matter indicate the purpose of these provisions: to protect children against sexual exploitation and abuse. This has been done by creating new, more specific offences and by making offenders liable to stronger penalties.

Two years ago the People of Papua New Guinea decided through their duly elected representatives in the National Parliament to change the law and express their abhorrence of this sort of conduct. The People have indicated that they will not tolerate children being abused, particularly by those in a position of trust. This is recognition of the central role that children play in all societies and cultures in Papua New Guinea. In Papua New Guinea children are treated like kings and queens. They are the future of Papua New Guinea and the People depend on them and their upbringing.

The Parliament has indicated that sexual penetration of a child is a very serious offence. It is a crime that has become equivalent in many respects to the crimes of murder and aggravated rape. A person who commits either of those crimes is liable to life imprisonment (see Criminal Code, Sections 300(1) and 347(2) respectively). A person who commits the crime of sexual penetration of a child, when there is an existing relationship of trust, authority or dependency, is also liable to life imprisonment.

ANTECEDENTS

The prisoner has no prior convictions.

ALLOCUTUS

The prisoner, Pennias Mokei, apologised to the Court for what he had done. He said sorry to the Government. He said sorry to the mother and father of the little girl that he committed the offence against. He said it was the first time for him to commit a crime like this and to be brought before the eyes of the Court.

He asked the Court to have mercy on him and put him on probation. That would allow him to go back to his village and say sorry using customary ways. It would give him time to compensate the family of the child for what he had done.

SUBMISSIONS

Mr Siminji, for the prisoner, highlighted that there was no aggravated physical injury to the child. This should not be put into the worst case category. There was no aggravated assault. If the court is minded to impose a term of imprisonment it should be less than 25 years.

Mr Wala, for the State, submitted that the only appropriate penalty is a custodial one. He highlighted – as conceded by Mr Siminji – there was a relationship of trust existing at the time of the offence. The prisoner had contested the case. He forced the victim to come and relive the trauma before the Court. The victim was only a child. She will have to live with this for the rest of her life. There was a significant age difference between the offender and the victim. He referred to the case of The State v Luke Sitban ((2004) N2572, National Court, Kandakasi J). A ten year old girl was raped. The prisoner was convicted of the crime of rape under Section 347 of the Criminal Code. There were circumstances of aggravation. The prisoner was liable to imprisonment for life. He was sentenced to 17 years.

In reply Mr Siminji submitted that the present case should be distinguished from Sitban. That was a very bad case. The child was assaulted and raped on her way home from school. She suffered very bad physical injuries in the course of the assault. Whereas in the present case there was no aggravated physical injury or humiliation of the child.

FACTORS RELEVANT TO SENTENCE

The submissions from both counsel helped me to ascertain the factors that I consider should be taken into account in determining sentence in cases such as this. Because it is a new law, there is not a substantial body of precedents available. The factors that I consider relevant are set out below.

1. Is the prisoner a first offender?
   

This should not be a major factor in a sexual penetration case. But is it something to be considered. If the prisoner is a first offender, it is a factor going in his favour. If the prisoner has previously committed an offence, particularly if the offence involved a child, this would go heavily against him.

2. Did the offender plead guilty?
   

It is generally accepted that if a person pleads guilty, especially for an offence such as the present one, it is something that goes in his favour. It saves the State time and expense. More importantly it can minimise the hurt and grief of the victim and the victim’s family.

3. What was the age of the victim?
   

In my view, generally speaking, the younger the child, the more serious the offence. That principle is already given effect by Section 229A(2) of the Criminal Code.

4. Was there consent?
   

As I pointed out in my decision on verdict in this case, absence of consent is not an element of this offence. There are a couple of very tightly constrained defences dealing with consent. But the prosecution does not have to prove absence of consent. Nevertheless the presence or absence of consent is something that in my opinion is certainly relevant to sentence. The court would need to be satisfied that consent was real. The law now provides detailed guidelines in Section 347A of the Criminal Code for determining that question. If there were real consent – especially if the child had reached puberty – then in my view that is something that would militate towards a lighter sentence. It would not right the wrong. But it would make the wrong less grievous.

5. Was there any aggravated violence?
   

Violence in this context could include physical, mental or emotional violence. If a child were actually physically harmed because of the incident in which sexual penetration occurred, this is something that would go against the prisoner. If threats were issued before, during or after the incident, this could in my view be regarded as aggravated violence, something demanding a heavier sentence.

6. Was the offence part of a pattern of persistent abuse?
   

In making this observation I have taken account of Section 229D. It prescribes the crime of "persistent abuse of a child". A person who on two or more occasions engages in sexual penetration or sexual touching of a child or commits an indecent act directed at a child commits a separate offence.

There are many cases documented where children have been subject to a pattern of persistent abuse by members of their family. Many such children have to live with the trauma, guilt and devastation of those prolonged incidents for the rest of their lives. Many adult people must live with those things forever.

So I consider it is relevant to examine the facts of each case to see whether there was persistent abuse. Or was the offence an isolated incident? An isolated incident would tend to attract a lesser penalty than an offence that was part of a pattern of persistent abuse.

7. If there was an existing relationship of trust, authority or dependency, what was the strength or closeness of that relationship?
   

The level of breach of trust is to be considered. Each case must be judged on its merits. The closer the bond of trust between the offender and the child, the more serious is the betrayal of trust when an offence is committed, and the stronger the penalty should be.

8. Has the offender shown or offered any remorse, apology, regret, or sorrow? If so, is it genuine, meaningful, timely and tangible?
   

If there has been remorse shown and an apology given and it has been accepted in some way, this is something that would work in favour of the offender.

9. Has the offender caused any trouble with the victim or his or her family, since the commission of the offence or since the matter was taken to the Police?
   

If so, this is something that goes against the offender.

APPLICATION OF FACTORS

I now apply those factors to the present case.

1. I accept that Pennias Mokei is a first time offender. That is something that goes in his favour.
   
2. Did the offender plead guilty? No, he did not. I accept Mr Wala’s submissions. By pleading not guilty and bringing this matter to trial, the offender forced the child he violated to come to the Court and give evidence. It is a very intimidating environment. She was cross-examined. She had to relive the trauma of what she had been through. So this is a factor that goes against the prisoner.
   
3. As to the age of the victim, she was a little over 13 when the incident occurred. So this is a factor that neither favours the prisoner nor goes against him.
   
4. The child did not consent in this case. This is something that makes this a very serious case. It is a factor weighing against the prisoner.
   
5. Was there aggravated violence? I accept what Mr Siminji submitted. What the prisoner did in this case was an intrinsically violent act. He forced himself on to a young girl aged a little over 13 years. But there was, in his favour, an absence of aggravated violence. He did not cause any serious or long-term physical injury to the child that he violated. So I think that is a relevant factor that works in his favour in determining the sentence.
   
6. There was no evidence that this incident was part of a pattern of persistent abuse. The evidence points to this being an isolated incident. Whether it was planned or not, the Court does not know. This also is a matter going in favour of the prisoner.
   
7. As to the strength of the relationship between the offender and the victim, this was a very serious betrayal of trust. The child was violated by someone who she regarded as her uncle. He was staying in her family home at the invitation of her parents. He was part of the extended family. So that goes against the prisoner.
   
8. Was there remorse? I accept that Pennias Mokei, in his statement to the Court on allocutus, was genuine. But the remorse came after the trial and after he had been found guilty. If it had been expressed beforehand and he had taken some meaningful steps to show that he was really sorry, that would have been a different situation altogether. So it is something that neither goes in his favour nor significantly against him.
   
9. There is no evidence that the offender caused any trouble after the incident. After he was arrested by the Police, he caused no more trouble. He left the family alone to deal with the problem. That is something that I consider goes in his favour.
   

To sum up, the factors favouring the prisoner are: that he is a first offender; that there was no aggravated violence; that this was an isolated incident; and that he has not caused more trouble for the victim or her family. The factors weighing against him are: that he did not plead guilty; that the child did not consent; and that there was a very serious betrayal of trust. The other factors outlined are neutral.

ASSESSMENT OF HEAD SENTENCE

I am mindful that the maximum sentence is life imprisonment. I have considered the purpose of the new law. I have also considered what the Supreme Court recently stated about the National Court’s duty to have close regard to maximum penalties. In Simon Kama v The State ((2004) SC740 Sevua J, Kandakasi J and Lenalia J) the Supreme Court dismissed an appeal against a sentence imposed by the National Court in a murder case. The accused had pleaded guilty and was sentenced to 25 years imprisonment. The Supreme Court criticised the tendency of the courts in Papua New Guinea over many years to impose sentences well below the maximum. The Court stated at page 22:

... we suggest that following the establishment of the guilt of an accused, either on plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that, only then should the Court consider the factors for and against the imposition of the maximum penalty.

That was a murder case. But the Supreme Court’s statement of principle applies equally to other offences. So in the present case I have closely considered imposing a sentence of life imprisonment. I have, however, decided not to impose that sentence as I consider that the offender has made out a case for a lesser sentence.

I have carefully considered the factors weighing in the prisoner’s favour and those against him. I have considered the sentencing guidelines laid down in Simon Kama’s case for murder. I have noted already that the crime of which Pennias Mokei has been found guilty is, in some respects, of equivalent seriousness to murder. The maximum penalty for each crime is life imprisonment. I have also considered that, in my assessment, the crime of sexual penetration of a child is, objectively, though roughly equivalent to, not relatively as serious, as murder. I have considered that the Supreme Court in Kama suggested that, on a plea of not guilty in a murder trial and with no other aggravating factors, a range of 17 to 21 years is appropriate. I have weighed the factors favouring the prisoner against those that are against him. I have considered Kandakasi J’s decision in Luke Sitban’s case. A sentence of 17 years was imposed for the aggravated rape of a young girl.

Having regard to all of the above, the sentence in this case is imprisonment for a term of 15 years, with hard labour, less the time the prisoner spent in custody in relation to this matter prior to the date of sentence.

ALTERNATIVES TO PRISON

I accept Mr Wala’s submission that this is a case that does not lend itself to the imposition of a non-custodial sentence. Only a prison sentence is appropriate.

STATEMENT TO THE PRISONER AND SUMMARY OF SENTENCE

After pronouncing sentence in Court the following statement was made to the prisoner:

Pennias Mokei, I have given very careful consideration to the penalty I should impose in your case. What I have just said here will be put in the form of a formal written judgment. You will be able to read it or at least it will be able to be interpreted to you so you can understand the reasons I have given for imposing the penalty. What you have done is a very serious and bad thing. The law is telling me that when the Court finds someone guilty of this sort of thing, the penalty must be very hard.

In your case the penalty is 15 years in prison.

Orders accordingly.
______________________________________________________________________
Lawyers for the State : Public Prosecutor
Lawyers for the accused : Public Solicitor