State v Dominic [2005] PGNC 35; N2938 (25 November 2005)

N2938

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 158 0F 2005

THE STATE

V

WILLIE DOMINIC

MADANG: CANNINGS J
11, 22, 25 NOVEMBER 2005

SENTENCE

CRIMINAL LAW – indictable offence – Criminal Code, Division IV.2A, Sexual Offences Against Children – Section 229A, sexual penetration of a child – sentence on plea of guilty – offender aged 17 at time of offence – child aged 14 years – no consent – offender acted alone – no weapons used or aggravated physical violence – no physical injury – no existing relationship of trust – series of incidents – offender did not surrender – cooperated with police – no trouble caused with victim since the incident – nothing tangible done towards repairing his wrong – determination of maximum penalty – expression of remorse – first offender – youthful offender – starting point for head sentence – new law – few precedents – identification of relevant considerations – application of relevant considerations – sentence of 4 years.

A young man pleaded guilty to one count of engaging in an act of sexual penetration with a child under the age of 16 years. He was 17 years of age at the time of commission of the offence. The child, a girl, was aged 14. Despite concessions to the contrary, the court could not accept that the girl consented.

Held:

(1) It is a matter of concern that both counsel agreed that the sexual intercourse that took place was consensual. The report of the interview with the complainant suggested exactly the opposite.

(2) On a plea of guilty the court is obliged to give the benefit of the doubt to the offender on matters of mitigation. But here it would not be reasonable to accept that intercourse was consensual.

(3) Lack of consent was a major aggravating factor. There were, however, many mitigating factors, principally to do with the age of the offender and his personal circumstances and the small age gap between the offender and the complainant.

(4) The maximum penalty for this offence is 25 years imprisonment.

(5) The offender was sentenced to 4 years imprisonment, 2 years of which may be later suspended on application to the court.

Cases cited:
The following cases are cited in the judgment:

The State v Aaron Lahu (2005) N2798
The State v Biason Benson Samson (2005) N2799
The State v Eddie Trosty (2004) N2681
The State v George Taunde (2005) N2807
The State v John Ritsi Kutetoa (2005) N2814
The State v Kemai Lumou (2004) N2684
The State v Mark Kanupio and Others (2005) N2800
The State v Pennias Mokei (No 2) (2004) N2635
The State v Peter Lare (2004) N2557
The State v Titus Soumi (2005) N2809

PLEA

The accused pleaded guilty to engaging in an act of sexual penetration with a 14-year old child and the following reasons for sentence were given.

Counsel:
N Miviri for the State
A Turi for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a young man who pleaded guilty to the offence of engaging in an act of sexual penetration with a child under the age of 16 years.

BACKGROUND

Incident

The incident giving rise to the charge took place at Madang in 2004.

Indictment

On 11 November 2005 the accused was brought before the National Court and faced the following indictment:

Willie Dominic ... stands charged that he on the 10th day of October 2004 at Jomba market ... engaged in an act of sexual penetration with [the complainant], a child under the age of 16 years.

The indictment was presented under Section 229A (sexual penetration of a child) of the Criminal Code.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

On 10 October 2004 in Madang the accused took the complainant, a girl aged 14 years to a house at Jomba market, Madang town. He had sexual intercourse with her by inserting his penis into her vagina.

Conviction

The accused pleaded guilty to those facts by saying ‘yes, it is true, she is my girlfriend’. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. I noted that absence of consent is not an element of the offence and the fact that the accused was a juvenile did not provide him with a defence. Both those issues are, however, relevant to the question of penalty.

ANTECEDENTS

The prisoner has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

This girl is my girlfriend. I say sorry to the court and before God for what I have done. We had this friendship for a year. This was not the first time we had had sex. She used to come to my place but her parents did not know about it. I am currently going to school and a church worker. I ask the court to be lenient on me and to give me the opportunity to complete my studies.

OTHER MATTERS OF FACT

Though the prisoner has pleaded guilty there are some issues of fact raised in the depositions and in the allocutus, which, if resolved in his favour, may be relevant to the sentence.

Principles to apply

In two recent Kimbe cases I have set out the principles to apply whenever there are significant issues of fact arising from the depositions or the allocutus that were not in the prosecutor’s summary of the facts. Those cases are The State v Mark Kanupio and Others (2005) N2800, which deals with issues arising from the depositions, and The State v Aaron Lahu (2005) N2798, which deals with issues arising from the allocutus. The principles to apply are as follows:

1. The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.
   
2. Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.
   
3. If the judge detects any significant mitigating matters in the depositions or in the allocutus that were not put to the accused in the prosecutor’s summary of the facts the judge should ascertain whether there is agreement between the prosecution and the defence on those matters.
   
4. If there is agreement, the judge should work on what has been agreed to unless the claims made in the depositions or allocutus are so beyond the bounds of possibility as to be unbelievable.
   
5. If there is a dispute between the parties about those matters, it would be appropriate for the court to take sworn evidence on them. The accused can be invited to give evidence, but cannot be forced into the witness box.
   
6. If, however, the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court must act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.
   

I now apply the above principles to the present case:

Findings

The offender pleaded guilty to a very general outline of facts. So I need to make some more specific findings, for sentencing purposes. Particularly regarding things like consent, force, threats and psychological harm to the child. There was a significant potential, mitigating factor in the depositions and allocutus: that the accused and the complainant were in a boyfriend/girlfriend relationship; and that they had had sex previously; and that the complainant consented. However, when the matter first came before the court, these claims were not supported by the pre-sentence report that was already in file, dated 22 August 2005. So I asked for a supplementary report so that the complainant, now aged 15, could be interviewed. The matter came back to court on 22 November 2005. Both counsel agreed that the offender’s claims were true. However, I am not bound by the concessions that have been made. I have examined the second pre-sentence report and it does not support what both counsel have submitted. It indicates the opposite: there was no such relationship; force was used; the child is psychologically damaged. So I do not accept any of these claims.

To reiterate:

• The offender and the complainant were not in a boyfriend-girlfriend relationship.
  
• They had had intercourse previously, about twice.
  
• The sexual encounter which constituted the offence was at the instigation of the offender.
  
• Sexual penetration was not consensual.
  

RELEVANT LAW

Criminal Code, Section 229A

Section 229A 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

Under the new law, the penalty regime is as follows:

• 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.
  

Maximum penalty

In the present case the conviction is based on Section 229A(1). The State has not alleged any aggravating circumstances under Sections 229A(2) or (3), ie the child was not under the age of 12 years and there was no existing relationship of trust, authority or dependency (which is defined by Section 6A(2) of the Criminal Code). Therefore the maximum penalty is 25 years imprisonment.

Discretion

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

• a shorter term of imprisonment may be imposed (Section 19(1)(a)); or
  
• a fine of up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or
  
• the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or
  
• the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or
  
• the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).
  

SIGNIFICANCE AND PURPOSE OF NEW LAW

As I noted in a recent Wewak case, The State v Pennias Mokei (No 2) (2004) N2635, Section 229A of the Criminal Code is part of a set of new provisions introduced by the Parliament in 2002 aimed at protecting children against sexual exploitation and abuse, particularly by adults. There have been cases decided on Section 229A but the thing that sets the present case apart from them is that the offender is a young person.

SUBMISSIONS BY DEFENCE COUNSEL

Ms Turi submitted that both the offender and the complainant are juveniles. That makes this a special case. They had a boyfriend/girlfriend relationship. He has pleaded guilty, saving the time and expense of a trial. A non-custodial sentence is appropriate.

SUBMISSIONS BY THE STATE

Mr Miviri conceded that it was a boyfriend/girlfriend relationship. It was not a serious case but some form of sentence should be imposed to teach the offender that what he has done is wrong.

PRE-SENTENCE REPORTS

To help me make a decision on the appropriate sentence I considered two pre-sentence reports under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Madang office of the Community Correction and Rehabilitation Service.

The first report concludes that the offender is a low-risk person who has admitted his mistake; feels remorseful; blames himself; and feels he deserves to be punished. However, a gaol term is not appropriate. The offender is a suitable candidate for probation supervision. This would aid the process of social rehabilitation.

The second report was regarding the interview of the complainant. This report highlights that the sexual penetration was not consensual.

DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the appropriate head sentence, in terms of years?
  
• step 2: should all or part of the sentence be suspended?
  
• step 3: if all or part of the sentence is suspended, what conditions should be imposed?
  

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?

Approach

In setting an appropriate head sentence I will take this approach:

• first, I will identify an appropriate starting point or reference point;
  
• secondly, I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point; and
  
• thirdly, I will apply those considerations to the facts of the present case.
  

Starting point

The law recognises that the crime of sexual penetration of a child under the age of 16 years is a serious crime. The maximum penalty is 25 years. However, there have been a number of cases now decided on Section 229A, and the sentences recognise that the seriousness of each case depends very much on its facts. I have considered the range of penalties in the following cases.

TABLE 1: SENTENCES ON SECTION 229A –
SEXUAL PENETRATION OF A CHILD UNDER THE AGE OF 16 YEARS

No	Case	Details	Sentence
1	The State v Peter Lare (2004) N2557, Kandakasi J, Goroka	Offender aged 40 charged with one count of sexual penetration – complainant, a girl, aged 12 – offender was the girl’s adopted father – no consent – no aggravated physical violence, but offender passed sexually transmitted disease to complainant – part of pattern of persistent abuse over a period of 2 years – serious betrayal of trust – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender – offender labelled a sexual predator.	20 years
2	The State v Pennias Mokei (No 2) (2004) N2635, Cannings J, Wewak	Offender aged 33 charged with one count of sexual penetration – complainant, a girl, aged 13 – offender was the girl’s uncle – no consent – no aggravated physical violence – isolated incident – serious betrayal of trust – offender cooperated with police – pleaded not guilty – expressed remorse – no compensation attempted – first offender – no trouble caused with complainant or family since commission of offence.	15 years
3	The State v Eddie Trosty (2004) N2681, Kandakasi J, Lorengau	Offender aged 21 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 15 – complainant was the offender’s girlfriend – consensual sex – no aggravated physical violence – part of a pattern of persistent consensual sex – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	6 years
4	The State v Biason Benson Samson (2005) N2799, Cannings J, Kimbe	Offender aged 17 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 13 – lack of consent – no weapons used or aggravated physical violence – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	5 years
5	The State v Kemai Lumou (2004) N2684, Kandakasi J, Lorengau	Offender aged 22 charged with one count of sexual penetration – complainant, a girl, aged 14 – offender was the girl’s uncle – no consent – aggravated physical violence: used bushknife to threaten complainant and sexual penetration was forceful – no evidence of physical injuries or infection of complainant with sexually transmitted disease – isolated incident – serious betrayal of trust – offence committed against a small pupil on her way to school – offender did not cooperate with police: tried to cover up his actions by claiming that complainant was his girlfriend, aged 17 and sex was consensual – pleaded not guilty: complainant forced to relive crime – no evidence of offender saying sorry to complainant and her relatives – no compensation attempted – first offender.	17 years
6	The State v George Taunde (2005) N2807, Cannings J, Buka	Offender aged 33 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 13 – uncle/niece relationship – lack of consent – no weapons used or aggravated physical violence – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	10 years
7	The State v Titus Soumi (2005) N2809, Cannings J, Buka	Offender aged 30 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 14 – offender married to complainant’s older sister – consensual sex – no physical violence – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	2 years
8	The State v John Ritsi Kutetoa (2005) N2814, Cannings J, Buka	Offender aged 39 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 10 – stepfather/stepdaughter relationship – lack of consent – no weapons used or aggravated physical violence – physical injury caused to child – violation of existing relationship of trust – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	17 years

The case I consider most similar to the present case is Samson: 5 years. So I will use that as the starting point.

Relevant considerations

In four of the above cases (Samson, Taunde, Soumi and Kutetoa) I set out the factors I considered should be taken into account in determining sentence in cases such as this.

The relevant considerations are:

1. Is there only a small age difference between the offender and the complainant?
   
2. Is the complainant not far under the age of 16 years?
   
3. Was there consent?
   
4. Was there only one offender?
   
5. Did the offender not use a threatening weapon and not use aggravated physical violence?
   
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the complainant?
   
7. Was there no relationship of trust, dependency or authority between the offender and the complainant or, if there was such a relationship, was it a distant one?
   
8. Was it an isolated incident?
   
9. Did the offender give himself up after the incident?
   
10. Did the offender cooperate with the police in their investigations?
    
11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did?
    
12. Has the offender not caused further trouble to the complainant or the complainant’s family since the incident?
    
13. Has the offender pleaded guilty?
    
14. Has the offender genuinely expressed remorse?
    
15. Is this his first offence?
    
16. Can the offender be regarded as a youthful offender?
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
    

Rationale

The above considerations have been listed so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three categories of considerations listed.

Numbers 1 to 8 focus on the circumstances of the incident. The age difference between the offender and the complainant is considered important. If there is only a small age difference, this can be regarded as a mitigating factor. The age of the complainant should also be taken into account. Generally the younger the complainant, the more serious the offence. The presence or absence of consent is very important. Absence of consent is not an element of the offence. So, as in Eddie Trosty’s case, the offender can be guilty even if there was real consent to sexual penetration. But the presence of real consent is in my view a strong mitigating factor. If there was no consent this is a serious aggravating factor, particularly if a weapon (eg a bushknife, as in Kemai Lumou’s case) is used or if there is aggravated physical violence or physical injury caused to the complainant (eg Kutetoa). It is relevant to ask whether it was an isolated incident. If not, this is a serious aggravating factor, as in Peter Lare’s case where the offender was labelled a sexual predator.

Numbers 9 to 14 focus on what the offender has done since the incident and how he has conducted himself.

Numbers 15 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

Application of considerations

I apply the above considerations as follows:

1. Yes there is a relatively small age difference of 3 years. The offender was aged 17 at the time of the incident and the complainant was 14.
   
2. Yes the complainant was just under the age of 16 years. Generally speaking the younger the complainant the more serious is the offence and the heavier the penalty.
   
3. No the complainant did not consent.
   
4. Yes the offender acted alone, not in a group.
   
5. Yes the offender did not use a threatening weapon such as a bushknife and did not use aggravated physical violence.
   
6. Yes the offender did not cause physical injury.
   
7. Yes there was no existing relationship of trust, dependency and authority, in the legal sense.
   
8. No it was not an isolated incident. It happened about twice previously.
   
9. No the offender did not give himself up after the incident.
   
10. Yes the offender cooperated with the police.
    
11. No the offender has not done anything tangible about compensation and reconciliation.
    
12. Yes he has not caused further trouble.
    
13. Yes he has pleaded guilty.
    
14. Yes he has expressed remorse.
    
15. Yes this is his first offence.
    
16. Yes he was a youthful offender.
    
17. Yes there are other aspects of the circumstances of the incident or the offender that are relevant: he has come to court today to receive the sentence after being given the impression by both counsel that this was going to be treated as a case of consensual sex. That is not the case.
    

Conclusion

I regard consideration No 3 as a serious aggravating factor. However there are strong mitigating factors elsewhere.

Using 5 years as a starting point, and comparing this case with Samson, I fix a head sentence of 4 years imprisonment.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

The pre-sentence report recommends a non-custodial sentence. On the other hand, I consider that the offender needs to go to gaol for some period – to signify the fact that he has done the wrong thing and to try and rehabilitate him. There is no doubt that this incident has caused anguish to the complainant and the family of the complainant. But I do not think a great deal of purpose would be served by sending him to gaol for a long period.

I will therefore indicate a minimum prison sentence that the offender must serve and the period of the sentence that can be suspended, if and when an application for suspension is granted.

I fix a minimum period in custody of two years.

STEP 3 - ON WHAT CONDITIONS WILL THE SENTENCE BE SUSPENDED?

Two years of the sentence may be suspended if and when the National Court makes an order to that effect and is satisfied that the following events have taken place:

1. The sum of K500.00 (representing compensation) must be paid by or on behalf of the offender, directly to the school at which the complainant is enrolled, in respect of her school fees.
   
2. The offender has a satisfactory record at the correctional institution at which he has been serving his sentence.
   
3. An affidavit by a community correctional and rehabilitation officer in Madang, verifying that events (1) and (2) have taken place, shall be filed in the National Court at Madang.
   

Suspension of the sentence will be further conditional on the following:

4. The offender must not reside within one-kilometre of the place of residence of the complainant.
   
5. The offender shall perform community work for the period of his suspended sentence, to be approved by the court and under the supervision of a person nominated by the court, for at least 15 hours each week.
   
6. There shall be a probation report submitted by the Community Corrections and Rehabilitation Service to the National Court at Madang every three months after the date of commencement of the suspension of the sentence.
   
7. The offender shall not consume alcohol or smoke tobacco or any other substance.
   
8. The offender shall not leave Madang Province without the leave of the National Court. If there is to be an application for leave it shall be submitted through the Community Corrections and Rehabilitation Service.
   
9. The offender shall co-operate with the Community Corrections and Rehabilitation Service and with all persons nominated to supervise his compliance with the community work program.
   
10. The offender shall attend a local church or other place of spiritual guidance at least once each week.
    
11. The offender shall keep the peace and be of good behaviour.
    
12. Breach of any of these conditions will mean that the prison sentence will crystallise, ie the offender will go back to gaol for the balance of the period of the sentence.
    

SENTENCE

The Court makes the following order:

1. Willie Dominic, having been convicted of the crime of engaging in an act of sexual penetration of a child under the age of 16 years, is sentenced to 4 years imprisonment in hard labour, 2 years of which must be served and 2 years of which may be suspended by order of the National Court if and when an application for suspension is granted.
   

2 For the avoidance of doubt:

(a) Suspension of any part of the above sentence will only come into effect if and when ordered by the National Court.

(b) There shall be deducted from the term of imprisonment the period in custody that the offender has already spent in relation to this offence.

Sentenced accordingly.
____________________________________________________

Lawyer for the State : Public Prosecutor
Lawyer for the accused : Public Solicitor