State v Raumo [2007] PGNC 187; N4983 (18 September 2007)

N4983

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 876 0F 2007

THE STATE

V

SAWAN RAUMO

Buka: Cannings J
2007: 6, 18 September

CRIMINAL LAW – sentence – engaging in an act of sexual penetration with a child under the age of 16 years – Criminal Code, Section 229A – offender penetrated a six-year-old girl's vagina with his finger – guilty plea – sentence of 10 years

A man pleaded guilty to one count of engaging in an act of sexual penetration with a child under the age of 16 years. The child was a six-year-old girl. He inserted his finger into her vagina for sexual gratification. He also attempted to penetrate her vagina with his penis.

Held:

(1) The starting point for sentencing for this offence (which carries a maximum penalty, given the age of the child, of life imprisonment) is 20 years imprisonment.

(2) Mitigating factors are: digital penetration; no weapon or aggravated violence; isolated incident; co-operated with police; no further trouble; pleaded guilty; remorse; first-time offender.

(3) Aggravating factors are: large age gap; tender age of victim; no consent; victim injured; impact on victim; relationship of trust; did not give himself up; no reconciliation.

(4) A sentence of ten years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Biason Benson Samson (2005) N2799
The State v Charles Rome CR No 502/2007, 13.07.07
The State v George Taunde (2005) N2807
The State v Ian Unawing CR No 392/2005, 19.08.05
The State v Jeffery Toapas CR No 1924/2005, 25.08.06
The State v John Ritsi Kutetoa (2005) N2814
The State v Johnson Roman CR No 1924/2005, 23.03.07
The State v Paul Gule CR No 686/2006, 24.08.07
The State v Pennias Mokei (No 2) (2004) N2635
The State v Titus Soumi (2005) N2809
The State v Willie Dominic (2005) N2938

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

L Rangan, for the State
P Kaluwin, for the offender

18 September, 2007

1. CANNINGS J:This is a decision on sentence for a 25-year-old man, Sawan Raumo, who pleaded guilty to one count of engaging in an act of sexual penetration with a child under the age of 16 years arising from the following facts. The victim, "E", was six years old at the time. The offender took her to the Pipiru River, near Lakempa village in the Siwai area of Bougainville, to wash some plates and pots. He told her to follow him to a breadfruit tree, where they stopped and he told her to lie down. He then pushed his fingers into her vagina. He also tried to insert his penis into her vagina but it could not go in. He knew that she was less than 12 years old. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction under Section 229A(1) and (2) (sexual penetration of a child) of the Criminal Code.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. 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. He said:

I apologise to my sister for what I did to her and also I apologise to my family. I will never do such a thing again. I ask this court for mercy.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). The only significant mitigating factor amongst all that material is that he co-operated with the police and made admissions in his police interview. He said that he used his tallman (middle finger) when penetrating the victim.

PERSONAL PARTICULARS

5. Swan Raumo's age is not recorded but I estimate him to be 25 years old. He is married, Catholic, the second born in a family of eight, educated to grade 2 and has never been formally employed.

SUBMISSIONS BY THE DEFENCE

6. Mr Kaluwin highlighted the guilty plea, which is significant in this case as he has saved the young victim the trauma and embarrassment of giving evidence in court; the offender's co-operation with police; and his remorse. He must only be sentenced for the digital penetration to which he has pleaded guilty and not for penile penetration, which he has denied. Mr Kaluwin asked me to take account of the fact that the offender grew up amidst the trauma of the Bougainville Crisis, when it was not easy for young men to understand the difference between right and wrong. They grew used to doing things at a whim, rather than considering the consequences. A sentence of six to nine years, partially suspended, would be appropriate, Mr Kaluwin submitted.

SUBMISSIONS BY THE STATE

7. Mr Rangan submitted that this was a very serious case of dealing with a child under the age of 12 years. Consent cannot be raised as a mitigating factor as the victim was too young to appreciate what was happening. It was tantamount to rape and the penalty should reflect that.

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 sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The offence of engaging in an act of sexual penetration with a child under the age of 16 years, in circumstances of aggravation (the child was under the age of 12 years) attracts a maximum penalty of life imprisonment (Criminal Code, Sections 229A(1), (2)).

STEP 2: WHAT IS A PROPER STARTING POINT?

10. The Supreme Court has yet to give sentencing guidelines for these sorts of offences but based on sentences that have been imposed by the National Court and some sentences that have been reviewed by the Supreme Court, I will use a starting point, given that the maximum sentence is life imprisonment, of 20 years.

STEP>STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. I will summarise in table 1 the sentences I have imposed since 2004 for sexual penetn.

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

No	Case	Details	Sentence
1	The State v Pennias Mokei (No 2) (2004) N2635, Wewak	Offender aged 33 charged with one count of sexual penetration – victim, 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
2	The State v Biason Benson Samson (2005) N2799, Kimbe	Offender aged 17 at time of offence – charged with one count of sexual penetration – victim, 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
3	The State v George Taunde (2005) N2807, Buka	Offender aged 33 at time of offence – charged with one count of sexual penetration – victim, 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
4	The State v Titus Soumi (2005) N2809, Buka	Offender aged 30 at time of offence – charged with one count of sexual penetration – victim, 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
5	The State v John Ritsi Kutetoa (2005) N2814, Buka	Offender aged 39 at time of offence – charged with one count of sexual penetration – victim, 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
6	The State v Willie Dominic (2005) N2938, Madang	Offender aged 17 at time of offence – charged with one count of sexual penetration – victim, a girl, aged 14 – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	4 years
7	The State v Ian Unawing CR No 392/2005, 19.08.05, Bialla	Offender aged 26 at time of offence – charged with one count of sexual penetration – victim, a girl, aged 13 – no relationship of trust – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	8 years
8	The State v Jeffery Toapas CR No 1924/2005, 25.08.06, Buka	Offender aged 30 at time of offence – charged with one count of sexual penetration – victim, a girl, aged 14 – uncle/niece relationship – lack of consent – girl became pregnant – trial – maximum penalty of five years as offence committed prior to date of commencement of new law.	4 years
9	The State v Johnson Roman CR No 1924/2005, 23.03.07, Kimbe	Offender aged 30 at time of offence – charged with one count of sexual penetration – victim, a girl, aged 15 – no weapons used or aggravated physical violence – no relationship of trust – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	5 years
10	The State v Charles Rome CR No 502/2007, 13.07.07, Kimbe	Offender aged 31 – victim, a boy, aged 10 – no aggravated violence – relationship of trust – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	12 years
11	The State v Paul Gule CR No 686/2006, 24.08.07, Kimbe	Offender aged 60 – victim, a girl, aged 11 – no aggravated violence – no relationship of trust – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	8 years

STEP 4: WHAT IS THE HEAD SENTENCE?

12. 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. 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 victim? No – the offender was aged 25 and the complainant 6, an age gap of 19 years.
   
2. Is the victim not far under the age of 16 years? No.
   
3. Was there consent? No.
   
4. Was the form of penetration other than penile penetration? Yes. I consider this as a mitigating factor given that digital penetration would involve a lesser feeling of violation and humiliation and a lesser degree of risk of disease transmission than penile penetration. He succeeded with digital penetration but attempted penile penetration, which makes this a very serious offence. However, as he has pleaded guilty, I accept the defence counsel's submission that that should not be regarded as an aggravating factor.
   
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 victim? No, the medical report shows that the child was unable to walk properly, had an inflamed vagina and swollen abdomen.
   
7. Did the incident have only a minimal impact on the child? No. It can only be presumed that at that age the emotional effect would be severe, adverse and permanent.
   
8. Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one? No, the victim was the offender's cousin-sister; it is presumed that she would have regarded him as her brother.
   
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 victim or personally or publicly apologising for what he did? No.
    
13. Has the offender not caused further trouble to the victim or her family since the incident? Yes.
    
14. Has the offender pleaded guilty? Yes.
    
15. Has the offender genuinely expressed remorse? Yes.
    
16. Is this his first offence? Yes.
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral. I reject the defence counsel's submission that the offender's upbringing in the Bougainville Crisis is a mitigating factor. There are thousands of young men who were raised in the trauma of the Crisis who live responsible lives, know the difference between right and wrong and have never committed such a serious crime, involving a wicked breach of trust, as this one.
    

13. To recap, mitigating factors are:

• No 4 – digital penetration;
• No 5 – no weapon or aggravated violence;
• No 9 – isolated incident;
• No 11 – co-operated with police;
• No 13 – no further trouble;
• No 14 – pleaded guilty;
• No 15 – remorse;
• No 16 – first offender.
  

14. Aggravating factors are:

• No 1 – large age gap;
• No 2 – tender age of victim;
• No 3 – no consent;
• No 6 – victim injured;
• No 7 – impact on victim;
• No 8 – relationship of trust;
• No 10 – did not give himself up;
• No 12 – no reconciliation.
  

15. There are eight mitigating factors and eight aggravating factors. The sentence could well be around the starting point of 20 years. However, on the strength of the guilty plea and considering all the circumstances of the case and comparing this case with previous cases I have dealt with, I impose a head sentence of ten years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. Yes. 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, which is five months, two weeks.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

17. There is no pre-sentence report before the court and I have not been informed of any reconciliation or forgiveness. No material has been presented that warrants suspension of any part of the sentence.

SENTENCE

18. Sawan Raumo, having been convicted of one count 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	10 years
Pre-sentence period to be deducted	5 months, 2 weeks
Resultant length of sentence to be served	9 years, 6 months, 2 weeks
Amount of sentence suspended	Nil
Time to be served in custody	9 years, 6 months, 2 weeks

Sentenced accordingly.
_______________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender