State v Pupuka [2007] PGNC 168; N3184 (1 October 2007)

N3184

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 432 OF 2007

THE STATE

v

CHARLIE PUPUKA

Alotau: Sevua, J
2007: 4, 21 & 24 May &
1 October

CRIMINAL LAW – Sentence – Plea of guilty – Sexual penetration of child (boy) under 12 years – Accused 18 years – Invited victim into bush to collect mustard – Sexually penetrated victim through anus – Victim was a 7 year old boy – Maximum penalty prescribed by s. 229A (2) is life imprisonment – Very serious crime - Whether custodial sentence should be imposed – Crime warrants custodial sentence in view of the prescribed penalty – Need to protect young and under aged children – Sentence of 10 years imposed with suspension, probation and good behaviour bond.

No cases cited in judgment.

Other References

Legislations Cited:

Criminal Code (Sexual Offences and Crimes Against Children) Act 2002,
s. 19, s.210, s.229A (2)

Counsels:

J. Wala, for State
L. Siminji, for Accused

1 October, 2007

SEVUA, J: The accused pleaded guilty to a charge of sexual penetration of a boy under the age of 12 years through his anus.

The facts are that on 30 August, 2006, at Waema village, Alotau, the accused told the victim, 7 year old CG, to follow him into the bush to collect mustards. While they were in the bush, the accused had sexual intercourse with the child victim through the anus. The accused was disturbed in the act of committing the crime and escaped from the scene.

Following arraignment and after the Court had entered a plea of guilty, the accused’s counsel, Mr. Siminji announced his appearance for the accused and made an application for an order that the Probation Service provide a Pre-Sentence Report on the accused by Friday 18 May. The application was granted after the allocutus was administered and the matter adjourned to Friday 18 May 2007 for address on sentence.

However during allocutus, the accused said: "This is my first time to stand before this Court and I would like to ask for probation. That is all."

The Pre-Sentence Report was filed on Friday morning, 18 May and submissions further adjourned to 9:30 am on Monday, 21 May 2007. When we resumed that morning, Mr. Siminji made the following submissions.

First, the prisoner is 18 years and single from Waema village near Alotau. The parents reside at Doba hamlet at Waema. The prisoner completed Grade 5 at Rabe Community School in 2004. Prior to the commission of this offence, he resided with his parents at Waema village.
Counsel submitted that this offence is very serious. The prisoner is not charged under s, 210 which deals with sodomy, but under s. 229A. Under s. 210, the maximum penalty is 14 years, where as under s. 229A, the maximum penalty is life imprisonment, subject only to the s. 19 discretion. Therefore, Parliament has prescribed life imprisonment as the maximum penalty because it viewed the offence very seriously.

The Court was urged to consider the following factors:

- Prisoner pleaded guilty to a very serious offence, which plea is consistent with answers to questions in record of interview.

- He is a first offender – no prior conviction.

- After committal on 18 December 2006, he now appears before the first circuit Court this month.

- It was a chance meeting where the victim and his mother went to the prisoner’s house and prisoner was asked to collect mustards and victim went with him therefore it was a changed meeting or spur of the moment offence.

- Apart from force used to achieve sexual penetration, no other force or physical assault was used.

- No other sexual indignities suffered by victim

- Age of prisoner- he is 18 years and although not a young child, he is at the stage of developing into adulthood therefore this case should be considered as a borderline case. The Court is entitled to make its own observation of the prisoner’s maturity.

- Apart from his age, it is apparent in the evidence that prisoner lacks the maturity and growth expected of a 18 year old youth.

Counsel submitted that these matters should be weighed in favour of the prisoner and the Court should consider them on penalty. Counsel also said the Probation Report states what he has alluded to.

It was further submitted that although the prisoner is no longer a child, he is totally dependent on his parents therefore he should be considered a child. The Court was asked to note that the prisoner is quite and keeps to himself and associates with children younger than him. Counsel submitted, this shows lack of maturity.

Mr. Siminji supported the recommendation of the Probation Officer that the prisoner is suitable for probation. He also said that a Ward Councillor is willing to supervise the prisoner. Counselling service is available in Alotau and the prisoner could attend counselling.

Counsel said whilst he could not assist much on precedents on cases of sodomy under the new Amendment, he submitted that the Court should consider an appropriate sentence on the basis of the factors submitted with the availability of counselling service and the Community Leader’s willingness to supervise the prisoner.

The Court was therefore asked to suspend the sentence it imposes and place the prisoner on probation.

In relation to pre-trial custody period, counsel submitted that the prisoner had been in custody for a month prior to his release to his parents’ custody. If the Court considers that as period in custody, the prisoner would have been in custody for 6 months.

The Court has considered all those matters and taken the mitigating factors into account on sentence. That is to say, the prisoner’s plea of guilty; his age and education; he being a first young offender; his co-operation with police with ready admissions in the record of interview; his physical appearance, ie. size and height, and his plea for probation

However, the Court is concerned that despite all these factors, the prisoner continues to associate with children younger than him. Is there any guarantee that he will not commit the same offence again with another child? Because there is evidence that two months prior to this offence, the subject of this judgment, he had sodomized another child, who in fear of being physically chastised, did not report the prisoner to his parents. The statement of Flora Anthony refers to that incident which involved her 8 year old son.

Whilst that incident was not reported to police for investigation and is not the subject of the present proceedings, it is of concern to the Court that the prisoner seems to be a child molester therefore a danger to the young children in his community. The Court should be hesitant in releasing the prisoner into the community for the protection of young children who can be vulnerable to sexual abuses and violation.

This is of concern to the Court because it seems that the prisoner is a danger to the young children in the community of Waema and he needs to be locked away so that he does not destroy young children and corrupt their morals with his evil mind and sexual perversions and indignities. Those issues are likely to affect the question of probation.

In my view, whether the offence was planned or was a chanced opportunity as his lawyer stated, it does not matter. The fact is, he sodomized a 7 year old child and that is a very serious offence. Under s. 229A (2) Criminal Code (Sexual Offences and Crimes Against Children Act 2002, this crime carries the maximum penalty of imprisonment for life, subject to s. 19. Therefore it is a very serious offence. Any lesser punishment must be weighed against the maximum penalty which the Parliament has prescribed.

To my mind, it is not right for the Court to treat the prisoner as a child because he is not a child. Besides, it is unusual for children to sodomise children. It takes an adult or an older person to plan this offence before he commits it. I do not believe that a child of tender age like the 7 year old victim would do this kind of thing, at that age anyway and I have not come across one, or heard or read about one. He seems to have done what adults do and therefore he should not expect to be treated as a child. His physical size does not matter. If he does what mature men do then he must be treated and punished as a man, not a child.

But more importantly, the welfare and interest of the child he molested and abused must be considered as well. It is a fact of life in this country that the interest and welfare of victims of crimes are not a concern to the State and its relevant agencies and sometimes, to the Courts as well. All the State wants is for victims to appear in Court as witnesses and once they fulfill that obligation, they are left to their own miseries and sufferings while the offenders are imprisoned for a short period of time and released to enjoy their freedom again in a free society.

I know for a fact that in the state of Californian in USA, there are victims’ rehabilitation programs and where offenders are ordered to pay fines, certain percentages of the court fines are awarded to victims as compensation by the prisoners. It is time that Papua New Guinea introduced such a scheme so that the unfortunate and traumatized victims are compensated for their sufferings. I call on the Minister for Community Development to immediately look into the possibility of proposing a law to cater for the needs of the suffering victims of crimes especially, children, young girls and women. Offenders just cannot be imprisoned at the expense of the tax payers to enjoy three meals a day in prisons.

"Justice is a two edge sword", as the saying goes, so when the Court is considering justice for the prisoner, it must also consider justice for the victim. In saying that, I consider that the 7 year old victim just cannot be forgotten or left in oblivion when the Court is determining what penalty it should impose on the prisoner because his interest is equally important as that of the prisoner. He is the one who has been scarred for life, not the prisoner. He is the one who will live with the stigma of being sodomized at a young age. He is the one who is going to internalize the trauma he has suffered at the hands of the prisoner. These are matters that should also be considered on the issue of penalty.

I have noted the physical size of the prisoner and the first time he appeared in Court on 14 May 2007, I had the impression that he was a 10 or 12 year old child, not a 18 year old teenager. But he is older than I thought thus he is not a child like the victim. He is old enough to undertake some physical punishment in prison to teach him a lesson and to deter him personally from repeating the same criminal conduct.

At the request of the prisoner’s counsel, a Pre-Sentence Report was ordered on 14 May 2005. I have had the benefit of reading the report and I thank the Probation Officer, Mrs. Sisi Jonathan for producing the report at short notice. I have noted the recommendation that the prisoner is a suitable candidate for probation. I have also noted that counselling services are available through the Milne Bay Counselling Services and the Churches. A Community Leader, James Tenbi is willing to supervise the prisoner. But the overall responsibility of supervision of conditions of probation imposed by the Courts lies with the Probation Service.

I have further taken into account two opposing views on punishment. First, the prisoners’ parents’ concern if he is incarcerated and their wish that he be not imprisoned. And secondly, the concerns of the victim child’s parents and the effect this crime has had on their son. As I said earlier, the victim’s interest is an important consideration on penalty as well.

However, I must emphasise that the Court is not influenced one way or the other in taking into account the concerns of the parents. The Court must be left to deliberate on punishment on its own will without being too emotional about the parents’ concerns. Of course, every person, young or old, who commits a serious crime, must expect to be punished by imprisonment. That is the bottom line.

One particular aspect of the report which I have considered to be a blatant lie, which is also quite illogical, is the assertion by the prisoner that it was the victim who invited the prisoner to sodomise him, and to do it quickly. This is the same old attitude of adults or grown up men who blame the victims of crimes for seducing or inducing them to commit the crimes. There is never a level playing field by these offenders who shift their goal posts when and where it suits them. Of course in this case, I do not believe the prisoner at all, but what is of concern to the Court is his attempt to have the Court believe his lie. Lying will not take him anywhere, except increase his punishment, perhaps.

Some of the cases I am aware of, and have personally dealt with, involve adult offenders therefore the penalty in those cases would not suit this case. However some of those cases were prosecuted under the old Code on sodomy charges. The present charge is not one of sodomy although the act itself is sodomy. The charge is brought pursuant to s. 229A which deals with sexual penetration of minors. I have earlier on, adverted to the maximum penalty under that provision, which is life imprisonment. I must reiterate that this is a very serious crime in view of the penalty prescribed by the Parliament. I do not think it is fair to downplay the seriousness of this crime because of the physical size of the prisoner. The fact remains that this is a very serious crime indeed.

It is my view that the prisoner must serve some time in prison as punishment for his crime. That will be a retribution for him and act as a deterrence as well, but it will also act as a public deterrence to young people of Waema village, Milne Bay Province, and Papua New Guinea for that matter, that if they commit the same crime, they will be punished like this prisoner.

Taking into account all the matters that have been put forth for the prisoner in this case including the Probation Report, I sentence the prisoner to 10 years imprisonment with hard labour. Owing to his age and physical size, I order that 5 years of that term be suspended on the following conditions-

1. The prisoner, Charlie Pupuka is placed on probation for 3 years and must keep the peace and be of good behaviour for 3 years from the date of discharge from prison.

2. The prisoner shall undertake 3 days community work under the supervision of the Probation Officer in Alotau for 2 years commencing 1 month after discharge from prison.

3. The prisoner shall refrain from consumption of alcohol and other illicit drugs like marijuana, during the probation and period of bond.

4. The prisoner must not associate with the victim or other children younger than him during the period of probation and bond.

5. The prisoner must undertake counselling from the Alotau Counselling Services once every two weeks during the period of probation and bond under the supervision of the Probation Service in Alotau.

6. The prisoner must comply with all orders, directions and/or instructions issued by the Probation Service in Alotau.

7. The prisoner must not leave Alotau or Milne Bay Province for any reason until the period of probation and bond is over.

Of the remaining 5 years to be served, I order that 5 months 2 weeks and 2 days be deducted for pre-trial custody period. I am unable to agree with and accept the prisoner’s counsel’s submission that the period the prisoner spent in the custody of his parents could be taken as custody period as it is strictly not a period spent in custody.

The prisoner will therefore serve the balance of 4 years 6 months and 5 days imprisonment with hard labour.

Orders accordingly.

_________________________________
Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer for Accused