State v Parlau [2004] PGNC 89; N2680 (25 March 2004)

N2680

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1848 of 2003

THE STATE

-V-

BLASIUS AMANDIN PARLAU

VANIMO: KANDAKASI, J.
2004: 9th and 25th March

CRIMINAL LAW – Sentence – Particular offence – Unlawful carnal knowledge of girl under age 16 years – No aggravating features - No expression of remorse – No indication of preparedness not to re-offend – Three years sentence imposed - Criminal Code s. 216.

Cases cited:
The State v. Sottie Apusa [1988-89] PNGLR 170.
The State v. Peter Yawoma (unreported judgment 19/01/01) N2032.
The State v. Joseph Minjihau (24/05/02) N2243.
The State v. Attiock Ishmel (12/10/01) N2294.
The State v. Jason Dongoia (unreported judgment 13/12/00) N2038.

Counsel:
Mr. F. K. Popeu for the State
Mr. D. Kari for the Accused

DECISION ON SENTENCE

25th March, 2004

KANDAKASI, J: You pleaded guilty to a charge of unlawful carnal knowledge of a girl (named but for her protection simply referred to as "the victim") under the age of 16 on 17th December 2003, here in Vanimo, Sandaun Province. The charge was under s.216 of the Criminal Code.

Facts

The victim in this case was under her aunt’s house waiting to go to a Joe Yourin’s house to watch TV. Other people joined her at that place and left. While she was there, you and a Jacob joined her. You eventually got her into a conversation with her. You then persuaded her to follow you into the kitchen to tell stories. Once in the kitchen, you asked her to have sexual intercourse with you but she refused. You kept on asking, until you removed her short and panties. At that stage, you successfully asked her to lay face up on the floor. As soon as she did that, you opened her legs and pushed your erected penis in and out of her vagina. As you did that, she felt a bit of pain and she asked you to stop but you continued until you ejaculated your sperm. Thereafter you got up, wore your clothes, while she did likewise.

Soon thereafter, the victim’s father and relatives enquired of her calling out her name as they did. You told them that the victim was not there. Despite that, the victim’s father kept on asking until you told them that she was there. When asked as to what you were doing with the victim, you told them that you were telling stories with her. The victim’s father was not satisfied with that response and asked the victim’s uncle to go to a Kevin’s house and call the police, while he was keeping an eye on you and the victim.

Eventually, police came and took you to the police station and had you interviewed and later charged.

The Law

Section 216 of the Criminal Code creates the offence of unlawful carnal knowledge and prescribes its penalty in these terms:

"216. Defilement of girls under 16 and of idiots.

(1) A person who-

(a) has or attempts to have unlawful carnal knowledge of a girl under the age of 16 years; or

(b) ...

Penalty: Imprisonment for a term not exceeding five years."

Brunton AJ (as he then was) in The State v. Sottie Apusa[1] suggested the following guidelines (from the head notes) for sentencing in this type of cases:

"(1) a lower range from discharge up to 20 months, for cases where the accused and the victim are of similar age, where the accused is a young offender and the victim between 14 and 16 years and where the offender is disabled, or physically or mentally handicapped and the victim a consenting party;

(2) a middle range from 20 months to 40 months, for cases where the accused is a mature man and there are no circumstances of aggravation;

(3) an upper range from 40 months to the maximum of five years, for cases where there are circumstances of aggravation, such as, cases where there is a relationship of trust and dependency between the accused and the victim, for example, teacher and pupil, medical career and patient, and step-father/uncle relationships."

This is the only reported case on point. The only addition to that, as far as I am aware are my judgments in The State v. Peter Yawoma,[2] and The State v. Joseph Minjihau.[3]

In The State v. Sottie Apusa[4] the offender, a stepfather had sexual intercourse with his stepdaughter six times over four months. He pleaded guilty to a charge under s. 216 (1)(a) of the Code. The Court imposed a sentence of 3 years and two months.

I referred to these guidelines in my judgment in The State v. Peter Yawoma.[5] I then noted that, there were other cases on unlawful carnal knowledge but they involved girls under the age of 12 or the offences have been committed against the course of nature or that they have been committed in association with other offences. I therefore said in that case that, strictly speaking, those other cases could not be of any help.

Up to this time, the Courts have only the guidelines set out in the Sottie Apusa case. In Peter Yawoma, I suggested an addition guideline for sentencing in these kinds of cases. The suggestion was that, if the facts of a case reveal a more serious offence such as rape that calls for the maximum sentence of five years. After having said that, I found myself constrained to give a sentence of 2 years, for what was a rape case but for the co-accused being previously charged with an offence under s. 216 and was given such a sentence.

Eventually, I did apply the above additional principles and imposed the maximum 5 years in The State v. Attiock Ishmel.[6] That was in fact a rape case reduced to unlawful carnal knowledge but reduced on plea bargain to unlawful carnal knowledge. The victim did sustain some injuries and the commission of the offence was in breach of a de factor trust.

In the Joseph Minjihau case, I again referred to the above cases and imposed the prescribe maximum of 5 years. This was warranted, in my view, because the offender was a grown up man with his own children. He had paid the victim small sums of money on more than one occasion to secure a sexual intercourse with her. I found that was in fact an introduction of the innocent child to paid sex trade, which comes with the risks of AIDs and other sexually transmitted decease. I also formed the view that, this was a form of child abuse at its best. Further, I found that the offence was committed in a de factor trust position because they lived in the same area.

But as I said in The State v. Jason Dongoia:[7]

"... the principle and factors generally governing sentencing such as prevalence of the offence, society’s response to that, whether the offender is a first time offender, whether it is a guilty plea and the particular circumstances in which the crime was committed are all relevant and do apply.

Of course, the purpose of sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration. Taking such factors into account will be in line with the intent of s. 19 of the Code.

A sentence lower than what is prescribed as the maximum may be given to an offender who pleads guilty, has no prior convictions, and commits the offence in circumstances, which are not serious...

Then certainly the community’s reaction to the crime should have an influence on the kind of punishment to be given. If the community in whatever form is calling for tougher penalties because of the prevalence of the crime and its impact on society, the case may warrant an higher penalty, that is up to the maximum prescribe by law."

Your Case

In your case, the victim due to her age was a child. The international community, of which we are a part, has repeatedly called for the protection of children given their vulnerability. What you did was, in my view, a worse form of child abuse. Adults like you, should in the normal course of things, protect the young and the weak instead of exploiting them as you have. The world and all normal thinking Papua New Guineans are calling for a protection of this group of our people so they can continue to allow our country to exist as a nation, not only for today but also for the years to come. The number of sexual offences are on the increase and the kind of sentences the courts have been imposing to date appear not to be deterring other would be offenders like you. I consider the time has come for the courts to be more responsive to the wishes of the community in the exercise of their sentencing power.

I note that you are a much older person than the victim who was in fact 13 years according to your own evidence, at the time of your carnally knowing her. You were therefore much older and stronger than the victim was. You have not expressed any remorse of any sort for the shame and pain you brought upon the victim and the society. You failed to impress upon me as a person who is genuinely sorry for what he has done and is seeking the pardon of the society. There is no evidence of you having paid compensation or taking any other step to correct the harm you brought upon the victim and her family and relatives. You have not shown any preparedness to pay any compensation.

Apart from noting your personal and family backgrounds, I note that only two things operate in your favour. First, you pleaded guilty to the charge. This meant the victim had to be spared the shame and pain of coming into open court to recall and retell what you did to her. You also spared other witnesses being called and the Court sitting more hours. Secondly, you are a first time offender. This means you have no trouble with the law until the commission of the offence you are now in Court for.

Taking into account all that has been said, as well as the factors in your mitigation and those operating against, I consider a sentence of 3 years appropriate. In arriving at that sentence, I note that, past sentences have not deterred men like you from committing such offences. I therefore hope that this sentence will help deter other would be or like minded persons from committing these kind of offences. If it does not do that, all sentence should be up to the maximum and in the meantime Parliament should seriously consider amending the penalty provisions with a view to increasing the present limits.

In the end, I order that you serve your sentence of 3 years in hard labour at the Vanimo Correction Services less the 3 months and 1 week you have already spent in custody. I further order a warrant of commitment be issued forthwith in those terms.
__________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor

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^[1] [1988-89] PNGLR 170.
^[2] (19/01/01) N2032.
^[3] (24/05/02) N2243.
^[4] Supra note 1.
^[5] Supra note 2.
^[6] (12/10/01) N2294.
^[7] 13/12/00) N2038.