State v Yalibakut [2005] PGNC 6; N2957 (26 September 2005)

N2957

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1476 of 2005

THE STATE

-V-

SAPERUS YALIBAKUT

WEWAK: KANDAKASI, J.
2005: 13th and 26th September

CRIMINAL LAW –Sentence – Sexual penetration of a girl under 16 years – No physical injuries - Facts disclose case of rape – Offence committed in breach of trust as uncle – Guilty plea – First time offender – Aggravating factors outweighing those in mitigation – 17 years imposed - Sections 229A of Criminal Code.

Cases cited:
The State v. Nason Samban (25/03/04) N2598.
The State v. Peter Yawoma N2032.
The State v. Attiock Ishmel, (12/10/01) N2294.
Sakarowa Koe v The State (01/04/04) SC739.
The State v. Jason Dongoia (13/12/00) N2038.
The State v. Eddie Trosty (10/09/04) N2681.
The State v. Peter Lare (20/05/04) N2557.
The State v Kemai Lumou (23/09/04) N2684.
The State v. Thomas Angup (21/04/05) N2830.
The State v. John Ritsi Kutetoa (22/03/05) N2814.
The State v. Eki Kondi & Ors. (No 2) (25/03/04) N2543.
The State v. Garry Sasoropa & 2 Ors (No 2) (29/04/04) N2569.
Ian Napoleon Setep v The State (18/05/01) SC666.
The State v. Joseph Minjihau (24/05/02) N2243.
James Mora Meaoa v. The State [1996] PNGLR 280.
The State v. Eddie Peter (No 2) (12/10/01) N2297.
The State v. Kenneth Penias [1994] PNGLR 48.
Seo Ross v. The State (30/04/99) SC605.

Counsel:
A. Kupmain the State.
J. Mesa for the Prisoner.

DECISION ON SENTENCE

23rd September 2004

KANDAKASI J: You pleaded guilty to one charge of sexual penetration of a girl under the age of 16 years, contrary to s.229A of the Criminal Code.

The facts to which you pleaded guilty are these, on Saturday 16th April 2005, at Kuminimbus village, Maprik, East Sepik Province, around 11:00am, you met the victim (named) who was returning from a visit to her aunt at the Amaku river. You asked the victim to go to your house, who initially refused but you eventually managed to persuade her to do so and she did.

When at your house you asked her to get into the house and into your bedroom. Again, she initially refused but you managed to persuade her to get into your house and then into your bedroom. Once in the bedroom, you caused the victim to lie down on your bed after you removed her clothes forcefully and slapped her with your hand when she refused to comply. Thereafter, you proceeded to have sexual intercourse with her. As you were in the process of having sexual intercourse with the victim, you heard your wife coming, so you quickly put on your trousers and went and sat at the doorway after having directed the victim to pretend to attend to sorting out your vanilla beans. Your wife however, managed to find your underwear sticking out of your pocket which was wet with sperm. Your wife proceeded to enquire of the victim as to what you did with her and she told her that you raped her.

Your wife eventually reported you to the authorities. This led to your arrest and being charged with the offence of sexual penetration. These facts and other evidence on file, disclose a possible case of rape of the victim. However, these facts were omitted and were not included in your arraignment and charge for the purposes of securing, I believe your guilty plea to the charge presented against you.

I had a similar situation in a number of cases before. A more recent one was in the case of The State v. Nason Samban.[1] There, I turned to my judgment in The State v. Peter Yawoma,[2] where I said:

"...[W]here the facts of a case disclose a more serious offence such as rape but for a plea bargain as in the present case, the maximum prescribed term of 5 years should be imposed."

In The State v. Attiock Ishmel,[3] I provided the reasons for taking that view as follows:

"No doubt by reason of a plea-bargaining resulting in the dropping of a more serious offence to a less serious one drastically reduces the kind of penalty an offender should receive. Given that, in my view, there exists no reason or basis for a further reduction of any sentence. The society quite rightly expects the courts to impose on their behalf a sentence that best reflects its disapproval of the kind of conduct the offender has engaged him or herself in. That expectation should always be borne in mind by a sentencing authority when considering an appropriate sentence to impose in any case. It would be a disservice to the society’s legitimate expectation, if sentences prescribed under a lesser offence were further reduced."

The Supreme Court endorsed these views and approach in its recent judgment in the case of Sakarowa Koe v The State[4] there the Supreme Court said:

"In any case, where an indictment charging an accused with a less serious offence is present even though the facts support a more serious charge, we agree with Kandakasi J in The State v. Attiock Ishmel,... that:

‘No doubt by reason of a plea-bargaining resulting in the dropping of a more serious offence to a less serious one drastically reduces the kind of penalty an offender should receive. Given that, ...there exists no reason or basis for a further reduction of any sentence. The society quite rightly expects the courts to impose on their behalf a sentence that best reflects its disapproval of the kind of conduct the offender has engaged him or herself in. That expectation should always be borne in mind by a sentencing authority when considering an appropriate sentence to impose in any case. It would be a disservice to the society’s legitimate expectation if sentences prescribed under a lesser offence were further reduced.’

We add however, that in some cases, there may be very good mitigating factors. In such cases, the Court should be free, to further reduce the sentence only as an exception rather than the norm."

But as I said in The State v. Jason Dongoia:[5]

"... [T]he 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."

Since the judgments in The State v. Peter Yawoma[6] and The State v. Attiock Ishmel,[7] Parliament changed the law. This change significantly increased the penalty to 25 years imprisonment from a very low of 5 years. In The State v. Eddie Trosty,[8] I imposed a sentence of 6 years on a guilty plea. The prisoner was 6 years older than the victim who was his girlfriend. There were no aggravating factors.

Subsequently, in The State v. Peter Lare,[9] which was referred to by your lawyer in his submission, I imposed a sentence of 20 years. There, the prisoner was an uncle to the victim and he had several and or repeated acts of sexual penetration of the victim over a four year period. There was substantial age difference and the prisoner did not express any genuine remorse, evidenced by a lack of payment of any form of compensation to the victim and her side. Also, the prisoner infected the victim with a sexually transmitted disease.

Having regard to the sentence and the particular circumstances in which the prisoner committed the offence in the above case, I imposed a sentence of 17 years in the later case of The State v Kemai Lumou.[10] There, the Court convicted the prisoner after a trial. The facts disclosed a rape of a niece by an uncle using a bush knife. The victim was much younger than the offender was. Despite this, the State charged him with sexual penetration and not rape.

Citing my judgment in The State v. Peter Lare,[11] Mr. Justice Lay imposed a sentence of 20 years for one out of a number of sex charges in the case of The State v. Thomas Angup.[12] From the head note to the case, the Defendant was convicted on a plea of guilty of 1 count of sexual touching of a child under 12 years in 1998. He was also convicted of 1 count of sexual penetration of a child under 12 years in 1998 and 2 counts of sexual penetration of a child under 16 years, in 2000 and one in 2003, on unspecified dates. All of these offences were committed in breach of an existing relationship of trust. The charges arose out of a pattern of sexual abuse over a period of 6 years. The victim became pregnant and bore a son before age 16. Her schooling was terminated. That was in a case of a series of sexual penetrations of the victim by the prisoner.

In The State v. John Ritsi Kutetoa,[13] Cannings J, cited the judgments in The State v. Peter Lare,[14] and The State v Kemai Lumou[15] and imposed a sentence of 17 years. There, the prisoner got his stepdaughter into a room in their house, where he sexually penetrated her. She was about 11 years old at the time. There was a relationship of trust that was breached, as his stepdaughter regarded him as her father.

In Your Case

I observe in your case that, rape carries a maximum of life imprisonment as its penalty, while the charge and the eventual conviction against you carry a maximum of 25 years. Because of that, you had your sentence substantially reduced already. At the same time, I note that, the maximum sentences for rape is up to 25 years for gang rapes following a conviction after trial as in The State v. Eki Kondi & Ors. (No 2),[16] The State v. Garry Sasoropa & 2 Ors (No 2)[17] and Ian Napoleon Setep v The State.[18] As for cases of one on one rape and or guilty pleas, the highest sentence is around 17 years where some elements of aggravation exist.

What all of these mean is that, your sentence must not be well in excess but somewhere closer to 17 years. In order to determine what sentence is appropriate in your case, I note both the factors operating for and against you. Considering first the factors in your favour, I note that your conviction was on your guilty plea. That saved the State the time and money it could have spent on running a trial. It also spared the victim from reliving the memories of what you did to her. I also note that, this is your first ever formal conviction. Therefore, you are a first time offender.

Further, in your allocatus, you said sorry to the Court, God in Heaven, the victim and her family and your family for the shame you brought upon them and pleaded for leniency. Your saying sorry appears to be genuine in that you have voluntarily paid a sum of K1,000.00 in compensation. However, I point out that, the law says payment of compensation is only a mitigating factor and not a total excuse from meeting your criminal responsibility. [19]

Turning now to the factors against you, I firstly note that you committed an offence against a very small girl. You are a much older person compared to the victim, who was at the time of the offence, 11 years old. Clearly therefore, she was a child in every sense of the word. As I have noted elsewhere already,[20] the international and our own communities have been repeatedly calling for protection of children given their vulnerability. Your conduct, in my view, is nothing short of a worse form of child abuse. Adults like you are expected and do in fact 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 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.

Secondly, I note from the evidence on file that, both the victim and you come from the same village namely, Kuminimbus, in the Maprik District of this Province. Indeed, the evidence reveals that your houses are not far from each other. Hence, I find that there existed a de facto trust between the victim and you as fellow villagers and as an older adult person over a younger child of the same village. In The State v. Joseph Minjihau,[21] I took such a relationship as an aggravating factor when considering an appropriate sentence in that case, and I do likewise in your case. I do so, in full appreciation of the fact that people in the same village or area consider and treat each others as relatives and are very slow to attacking them in any way. In the case of children, it is expected that adult members of the community or village do and will care for them, even at times when the children’s own parents are not there for them. What you did went against that good culture and tradition of our people and communities. Your sentence must therefore reflect a voice against your kind of conduct in our communities.

Both this Court and the Supreme Court have clearly stated that an offence committed in breach of a trust renders the commission of the offence serious. The Supreme Court in James Mora Meaoa v. The State,[22] made that clear. In so doing, it held that a breach of a position of trust is an aggravating factor in sexual offences and warrants heavier sentences. It also held that positions of trust are not limited and may extend to de facto situations such as a vehicle or boat operator and his passengers. I have adopted and applied this principle in a large number of cases, an example of which is, The State v. Eddie Peter (No 2).[23]

Thirdly, you committed the offence against a small child who was going about her day’s activity innocently as she was. You said in your record of interview that the victim had made advances to you earlier on and that, she had been excused to sexual intercourse with other men. At the same time however, you contradicted yourself when you said the first time you tried sexually penetrate her, you had difficulty and did not succeed. This obviously means she knew no man in a sexual way before and that you were the first to introduce her to it. In so doing, you exposed her to the risk of sexual promiscuity. I noted this as an aggravating factor in The State v. Joseph Minjihau.[24]

In weighing the factors both for and against you, I note that the factors in aggravation far outweigh the factors in mitigation. In such a case, the maximum prescribed sentence or one closer to that may be imposed. Injia J. (as he then was), applied that principle in The State v. Kenneth Penias.[25] The Supreme Court approved an application of that principle in Seo Ross v. The State.[26]

Given that, I note, there is nothing preventing an imposition of the maximum prescribed sentence of life imprisonment as the victim was under the age of 12 at the time of the offence and that you committed the offence in breach of a de facto trust. However, you being a first time offender, your guilty plea and having paid some compensation operates against an imposition of the prescribed maximum sentence of life imprisonment. Nevertheless, these factors are not sufficient to prevent an imposition of a deterrent sentence to deter you and other persons of similar mind as yours from committing offences against children in general. Having regard to the kind of sentences that the courts have imposed to date in situations more serious than your case, I consider a sentence in the range of 15 to 18 years is appropriate and I impose a sentence of 17 years.

Of the head sentence of 17 years, I order that the time you have already spent in custody awaiting your trial and sentence be deducted. That will leave you with the balance to serve in hard labour at the Boram Correction Services. A warrant of commitment in those terms shall forthwith issue.
________________________________________________

Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor

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^[1] (25/03/04) N2598.
^[2] (19/01/01) N2032.
^[3] (12/10/01) N2294.
^[4] (01/04/04) SC739.
^[5] (13/12/00) N2038.
^[6] Opt Cit. note 2
^[7] Opt Cit. note 3.
^[8] (10/09/04) N2681.
^[9] (20/05/04) N2557.
^[10] (23/09/04) N2684.
^[11] Opt Cit. note 9.
^[12] (21/04/05) N2830.
^[13] (22/03/05) N2814.
^[14] Opt Cit. note 9.
^[15] Opt Cit. note 10.
^[16] (25/03/04) N2543.
^[17] (29/04/04) N2569.
^[18] (18/05/01) SC666.
^[19]See The State v. Sinzai Karawa (27/08/04) N2631and The State v Ebes Tiun (30/04/01) N2129 for examples of an authority on point.
^[20] As for example in The State v. Blasius Amandin Parlau (25/03/04) N2680 and The State v Nason Samban (25/03/04) N2598.
^[21] (24/05/02) N2243.
^[22] [1996] PNGLR 280.
^[23] (12/10/01) N2297.
^[24] Opt Cit. note 21.
^[25] [1994] PNGLR 48.
^[26] (30/04/99) SC605.