State v Toapas [2006] PGNC 185; N4487 (25 August 2006)

N4487

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 24 0F 2004

THE STATE

V

JEFFERY TOAPAS

Buka: Cannings J
2006: 23, 24, 25 August

SENTENCE

CRIMINAL LAW – Criminal Code, Division IV.2A, Sexual Offences Against Children – Section 229A, engaging in act of sexual penetration of a child under the age of 16 years – sentence after trial – offence committed prior to commencement of Section 229A – maximum sentence determined under pre-existing law – sentence of 4 years imprisonment.

A mature-aged man was convicted after a trial of engaging in an act of sexual penetration with a child under the age of 16 years, contrary to Section 229A(1) of the Criminal Code. The child was his 14-year-old niece. The offence was committed in December 2002, four months before the changes to the law on sexual offences involving children.

Held:

(1) The lesser of the maximum penalties under the old law and the new law is five years. That is the most that can be imposed in this case by virtue of Section 37(7) of the Constitution and Section 11(2) of the Criminal Code.

(2) A starting point of 30 months should be used.

(3) Mitigating factors are: age of complainant; offender acted alone; no weapon or violence; no STD; isolated incident; co-operated with police; no further trouble; expressed remorse; first offender; was assaulted by relatives.

(4) Aggravating factors are: large age gap; big impact on victim – this is a seriously aggravating factor; breach of trust; did not give himself up; no reconciliation; did not plead guilty; not a youthful offender.

(5) The number of mitigating and aggravating factors does not solely determine the sentence. The strength of each factor is crucial.

(6) What made this a bad case is that the offender made the girl pregnant and she was his niece. He was very irresponsible. He changed the girl''s life forever.

(7) A sentence of four years was imposed, two years of which was suspended on conditions.

Cases cited

The following cases are cited in the judgment:

The State v Jeffery Toapas CR No 24 of 2004, 22.08.06
The State v John Ritsi Kutetoa (2005) N2814
Tom Longman Yaul v The State (2005) SC803

SENTENCE

This was a judgment on sentence for engaging in an act of sexual penetration with a child under the age of 16 years.

Counsel

R Luman, for the State
P Kaluwin, for the accused

1. CANNINGS J: INTRODUCTION: This is a decision on sentence for a man convicted after trial of engaging in an act of sexual penetration with a child under the age of 16 years.

BACKGROUND

2. The child was a 14-year-old-girl, just short of her 15 birthday when the offence was committed. The offender, Jeffery Toapas, was her uncle. They went paddling to a nearby island with the girl''s cousins to harvest coconuts. After that task was completed the offender sent the other people away, leaving him alone with the girl. They agreed to have sex but after starting she felt pain and wanted the offender to stop, but he didn''t. She became pregnant and gave birth nine months later. She was in school, doing year 7 at the time, and her schooling was disrupted.

2. Further details of the circumstances in which the offence was committed are set out in the judgment on verdict (The State v Jeffery Toapas CR No 24 of 2004, 22.08.06).

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. I administered the allocutus, ie the offender 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:

I apologise to the court for what I have done and I apologise to the victim. It is my first time to be before any court and it will be the last time. I ask the court to give me a good behaviour bond so that I can go back to the village and be with my family and start the process of reconciliation with the victim and her family.

PERSONAL PARTICULARS

5. The offender, Jeffery Toapas, is aged 30 and married. He lives on Saposa Island. He was educated to grade 6 in 1995 and has never been formally employed.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kaluwin highlighted the following mitigating factors: there was an element of consent involved; he has already been punished to some extent as he was bashed up by the victim''s relatives after the offence was committed; he did not inflict any physical injury on the victim. He submitted that a wholly suspended sentence would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Luman, for the State, highlighted the following aggravating factors: the offender was the victim''s uncle; she became pregnant and gave birth and her schooling was interrupted. He submitted that the maximum penalty of five years imprisonment was warranted.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what should the head sentence be?
  
• step 4: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 5: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The offender was convicted under Section 229A(1), and the maximum penalty would normally be 25-years imprisonment. However, the offence was committed in December 2002, prior to commencement of Section 229A(1). Under the law that existed then – the former Section 216(1)(a) of the Criminal Code – the maximum penalty was five years imprisonment. Section 37(7) of the Constitution and Section 11(2) of the Criminal Code apply in this situation (The State v John Ritsi Kutetoa (2005) N2814, Cannings J.)

10. Section 37(7) of the Constitution (protection of the law) states:

No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed. [Emphasis added.]

11. Section 11(2) of the Criminal Code (effect of changes in law) states:

If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law. [Emphasis added.]

12. The lesser of the maximum penalties under the old law and the new law is five years. That is the most that can be imposed in this case. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

13. I will use the mid-point of two years, six months (30 months) as the starting point.

STEP 3: WHAT IS THE HEAD SENTENCE?

14. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

15. Three sorts of considerations are listed. Numbers 1 to 9 focus on the circumstances of the incident. Numbers 10 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.

1. Is there only a small age difference between the offender and the complainant? No – the offender was aged 30 and the complainant 14; an age gap of 16 years.
   
2. Is the complainant not far under the age of 16 years? Yes – she was just short of her 15th birthday.
   
3. Was there consent? This is a neutral factor. There was an element of agreement to have sex but at the critical time there was an absence of consent.
   
4. Was there only one offender? Yes.
   
5. Did the offender not use a threatening weapon and not use aggravated physical violence? Yes.
   
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the complainant? Yes.
   
7. Did the incident have only a minimal impact on the child? No – she became pregnant and gave birth. She was still in school. It was a life-changing event for her.
   
8. Was there no relationship of trust, dependency or authority between the offender and the complainant or, if there was such relationship, was it a distant one? No – the offender was her uncle.
   
9. Was it an isolated incident? Yes.
   
10. Did the offender give himself up after the incident? No.
    
11. Did the offender cooperate with the police in their investigations? Yes.
    
12. 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? No.
    
13. Has the offender not caused further trouble to the complainant or the complainant''s family since the incident? Yes.
    
14. Has the offender pleaded guilty? No.
    
15. Has the offender genuinely expressed remorse? Yes.
    
16. Is this his first offence? Yes.
    
17. Can the offender be regarded as a youthful offender? No.
    
18. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes – he was assaulted by the child''s relatives when news got out that he had made her pregnant.
    

16. To recap, mitigating factors are:

• No 2 – age of complainant;
• No 4 – offender acted alone;
• No 5 – no weapon or violence;
• No 6 – no STD;
• No 9 – isolated incident;
• No 11 – co-operated with police;
• No 13 – no further trouble;
• No 15 – expressed remorse;
• No 16 – first offender;
• No 18 – was assaulted by relatives.
  

17. Aggravating factors are:

• No 1 – large age gap;
• No 7 – big impact on victim – this is a seriously aggravating factor;
• No 8 – breach of trust;
• No 10 – did not give himself up;
• No 12 – no reconciliation;
• No 14 – did not plead guilty;
• No 17 – not a youthful offender.
  

18. No 3 (consent) is a neutral factor.

19. There are ten mitigating factors compared to seven aggravating factors. However, it is not the comparative number of mitigating and aggravating factors that solely determines the sentence. It is the strength of each factor that is crucial. What makes this a bad case is that the offender made the girl pregnant and she was his niece. He was very irresponsible. He changed the girl''s life forever. He did not plead guilty so the girl was required to give evidence and be subject to cross-examination. I impose a head sentence of four years imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

20. The offender has spent one month and five days in custody in connexion with this offence and it is proper that that period be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, as shown in the table below:

CALCULATION OF FINAL SENTENCE

Length of sentence imposed	4 years
Pre-sentence period to be deducted	1 month, 5 days
Resultant length of sentence to be served	3 years, 10 months, 3 weeks, 2 days

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

21. This is an appropriate case in which to consider suspending part of the sentence in view of the mitigating factors identified. However, the case is too serious to warrant immediately suspending all the sentence. The offender must serve the first two years of the sentence in custody (including the pre-sentence period in custody).

22. The rest of the sentence will be suspended on the following conditions:

1. must within three months after release from custody pay K500.00 cash compensation to the victim and participate in a reconciliation ceremony in accordance with custom;
   
2. must reside at Saposa Island and nowhere else except with the written approval of the National Court;
   
3. must not leave Bougainville without the written approval of the National Court;
   
4. must perform at least six hours unpaid community work each week at Saposa United Church under the supervision of the Senior Pastor;
   
5. must attend Saposa United Church every Sunday for service and worship and assist the church in its community activities under the supervision of the Senior Pastor;
   
6. must report to Buka Police Station every government payweek Friday between 9.00 am and 3.00 pm and sign the register;
   
7. must not consume alcohol or drugs;
   
8. must keep the peace and be of good behaviour;
   
9. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of imposition of sentence;
   
10. the person responsible for filing the probation report will be the senior ARB Welfare Officer;
    
11. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

23. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the ARB senior welfare officer, any of who may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803, Salika J, Mogish J, Cannings J.)

SENTENCE

24. Jeffery Toapas, having been convicted of the crime of engaging in an act of sexual penetration with a child under the age of 16 years, is sentenced as follows:

Length of sentence imposed	4 years
Pre-sentence period to be deducted	1 month, 5 days
Resultant length of sentence to be served	3 years, 10 months, 3 weeks, 2 days
Amount of sentence suspended	2 years, subject to conditions
Time to be served in custody	1 year, 10 months, 3 weeks, 2 days, from date of sentence

Sentenced accordingly.
_________________________

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