State v Songones [2007] PGNC 208; N5044 (22 November 2007)

N5044

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 778 0F 2007

THE STATE

V

KOLTON DUEN SONGONES

Kimbe: Cannings J
2007: 6, 13, 22 November

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 ten-year-old girl's vagina with his finger – guilty plea.

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 ten-year-old girl. He was staying in the child's family home, sleeping in the same room as her and, while she was asleep, inserted his finger into her vagina, causing some injury.

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) A sentence of eight 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 (2006) SC890
The State v Biason Benson Samson (2005) N2799
The State v Charles Rome CR No 502/2007, 13.07.07
The State v Francis Guandi Borie CR No 289/2007
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 Sawan Raumo CR No 876/2007
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

F Popeu, for the State
R Beli, for the offender

22 November, 2007

1. CANNINGS J: This is a decision on sentence for a 29-year-old man, Kolton Duen Songones, 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, "M", was ten years old at the time. On 16 June 2007 she and the offender were living in a house at Morokea near Kimbe. The victim's parents were sleeping in the kitchen house outside the dwelling house. The offender was sleeping on a bed in the living room and the victim was asleep also in the living room. Between 1 and 2 am the offender approached the victim, removed her shorts and underwear and started touching her vagina with his fingers. He inserted his fingers into her vagina. After doing that he slept on top of her and was moving his body up and down and this caused her to wake up. Upon seeing the offender she cried and went to her parents and told them what happened. The matter was reported to the police the next morning. The victim was taken to the hospital and a medical examination revealed that her right lateral hymen had been torn. The offender breached an existing relationship of trust in that he had been living in the house with the victim and the family.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender said:

I am from the village and this is my first time to stand before a court like this. I want to say sorry to God and to this court and the Judge and to the lawyers and members of the public in the courtroom, to my uncle and the family of the victim. I ask for forgiveness and I ask for mercy from the court. I ask for probation so I can serve my sentence with the church or the community. The court can tell me how much compensation I have to pay.

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 (2006) SC890). He co-operated with the police, made admissions and has caused no further trouble since the incident.

PRE-SENTENCE REPORT

5. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

KOLTON DUEN SONGONES: 29-year-old male.

Residence: Urin Village, Kandrian, West New Britain.
Family background: He is the youngest in a family of eight. One sister and his parents are deceased.
Marital status: Single.
Education: Completed grade 10 at Kandrian High School in 1994.
Employment: Never employed.
Health: OK.
Financial status: Subsistence farmer, does not have a bank account.
Plans: Has no immediate plans regarding work or marriage. He wants to reconcile with the victim if he is released.
Religion: Catholic.
Victim's attitude: She thinks the offender should be punished as he has not apologised to her or her parents for what he did.
Offender's family's attitude: Not supportive.
Attitude of community: Not supportive.
Assessment: Offender seems to have a behavioural problem and may be a danger to others.
Recommendation: No recommendation for probation.

6. The report is not a favourable one.

SUBMISSIONS BY THE DEFENCE

7. Mr Beli highlighted the guilty plea and that it was an isolated incident and that the offender has never committed any prior offences. He acknowledged that the maximum penalty was life imprisonment but asked for a sentence of four years.

SUBMISSIONS BY THE STATE

8. Mr Popeu submitted that in view of the considerable age difference between the victim and the offender this was a very serious case warranting a sentence in the range of 10 to 14 years imprisonment.

DECISION MAKING PROCESS

9. 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 similar 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?

10. 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?

11. 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 2rs.

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

12. I will summathe sentences I have imposed since 2004 for sexual penetration of a child.

S>SENTENCES ON SECTION 229A, 2004-2007

No	Case	Details	Sentence
1	The State v Pennias Mokei (No 2) (2004) N2635, Wewak	Trial – offender aged 33 – victim, a girl, aged 13 – offender was the girl's uncle – no consent – no aggravated physical violence – isolated incident –offender cooperated with police – expressed remorse – no compensation attempted – first offender.	15 years
2	The State v Biason Benson Samson (2005) N2799, Kimbe	Guilty plea – offender aged 17 at time of offence – victim, a girl, aged 13 – lack of consent – no aggravated physical violence – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	5 years
3	The State v George Taunde (2005) N2807, Buka	Guilty plea – offender aged 33 at time of offence – victim, a girl, aged 13 – uncle/niece relationship – lack of consent – no aggravated physical violence – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	10 years
4	The State v Titus Soumi (2005) N2809, Buka	Guilty plea – offender aged 30 at time of offence – victim, a girl, aged 14 – offender married to complainant's older sister – consensual sex – no physical violence – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	2 years
5	The State v John Ritsi Kutetoa (2005) N2814, Buka	Guilty plea – offender aged 39 at time of offence – victim a girl, aged 10 – stepfather/stepdaughter relationship – lack of consent – physical injury caused to child – violation of existing relationship of trust – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	17 years
6	The State v Willie Dominic (2005) N2938, Madang	Guilty plea – offender aged 17 at time of offence – 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	Guilty plea – offender aged 26 at time of offence – victim, a girl, aged 13 – no relationship of trust – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	8 years
8	The State v Jeffery Toapas CR No 1924/2005, 25.08.06, Buka	Trial – offender aged 30 at time of offence –victim, a girl, aged 14 – uncle/niece relationship – lack of consent – girl became pregnant –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	Guilty plea – offender aged 30 at time of offence – victim, a girl, aged 15 – no aggravated physical violence – no relationship of trust – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	5 years
10	The State v Charles Rome CR No 502/2007, 13.07.07, Kimbe	Guilty plea – offender aged 31 – victim, a boy, aged 10 – no aggravated violence – relationship of trust – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	12 years
11	The State v Paul Gule CR No 686/2006, 24.08.07, Kimbe	Guilty plea – 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
12	The State v Sawan Raumo CR No 876/2007, 18.09.07, Buka	Guilty plea – offender aged 25 – victim, a girl, aged 6 – no aggravated violence – digital penetration – no relationship of trust – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	10 years
13	The State v Francis Guandi Borie CR No 289/2007, 16.10.07, Madang	Guilty plea – offender aged 35 – victim, a girl, aged 11 – no aggravated violence – penile penetration – no relationship of trust – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	10 years

STEP 4: WHAT IS THE HEAD SENTENCE?

13. 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 29 and the complainant 10, 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. It appears that he was attempting penile penetration by being on top of the child. However, as he has pleaded guilty, this is not 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 and her right lateral hymen was torn.
   
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 offender had been invited to stay in the family home. He was trusted to the extent that he was left to sleep in the same room as the victim. He betrayed that trust.
   
9. Was it an isolated incident? Yes.
   
10. Did the offender give himself up after the incident? Neutral.
    
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? Neutral. In his allocutus he apologised to everyone except the victim.
    
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.
    

14. There are seven mitigating factors and seven aggravating factors. The sentence could well be around the starting point of 20 years if this case had gone to trial. However, on the strength of the guilty plea and considering all the circumstances of the case and comparing this case with previous sentences, I impose a head sentence of eight years imprisonment.

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

15. Yes. Under Section 3(2) of the Criminal Justice (Sentences) Act I will deduct the whole of the pre-sentence period in custody, which is five months, three days, from the term of imprisonment.

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

16. No. The pre-sentence report is not favourable and the court has not been informed of any reconciliation or forgiveness. No material has been presented that warrants suspension of any part of the sentence.

SENTENCE

17. Kolton Duen Songones, having been convicted of one count 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, in circumstances of aggravation under Section 229A(2), is sentenced as follows:

Length of sentence imposed	8 years
Pre-sentence period to be deducted	5 months, 3 days
Resultant length of sentence to be served	7 years, 6 months, 3 weeks, 4 days
Amount of sentence suspended	Nil
Time to be served in custody	7 years, 6 months, 3 weeks, 4 days

Sentenced accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender