State v Borie [2007] PGNC 245; N5489 (16 October 2007)

N5489

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 289 0F 2007

THE STATE

V

FRANCIS GUANDI BORIE

Madang: Cannings J
2007: 8, 16 October

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 an 11-year-old girl's vagina with his penis – 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, an 11-year-old girl.

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: no weapon or aggravated violence; no physical injury or STD; no relationship of trust; isolated incident; cooperated with police; no further trouble; pleaded guilty; remorse; first offender.

(3) Aggravating factors are: large age gap; tender age of victim; no consent; penile penetration; 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 Sawan Raumo CR No 876/2007, 18.09.07
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

M Ruarri, for the State
D Joseph, for the offender

16th October, 2007

1. CANNINGS J: This is a decision on sentence for a middle-aged man, Francis Guandi Borie, 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. At 9.00 am on 21 November 2003 he was watching a number of children playing near a house at Kobum base camp in the Bundi area of Madang Province. He attracted the attention of the children by offering them 10 toea and 20 toea coins. One of them was the complainant, an 11-year-old girl. He asked her to come with him to some nearby bushes where he took off her clothes, made her lie on the ground and then sexually penetrated her by inserting his penis into her vagina. After doing that, he gave her 20 toea. He has been convicted of an offence under Section 229A(1) (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:

It is true that I committed this offence. I know that I have broken the law and I say sorry to my lawyer and other officers of the court whose time has been taken up with my case. I am in the hands of the law and I only ask that the court consider that my mother is very old and I am the only son in the family. I do not know who will look after her. I have a garden and some properties, which are spoiled already, and I do not know who will look after them. I ask the court to show mercy so that I can look after my properties and my mother.

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). He cooperated with the police and made admissions in his police interview, saying that he was at fault and Satan must have persuaded him to do this thing. There is a medical report that suggests that the victim did not suffer any physical injuries.

PERSONAL PARTICULARS

5. Francis Borie is a mature aged, married man who has been living at the Kobum base camp, where the offence was committed, for 20 years. I estimate him to be 35 years old. He has had no formal education or employment.

SUBMISSIONS BY THE DEFENCE

6. Mr Joseph 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 absence of physical injuries the offender's co-operation with police; and his remorse. A sentence of ten years would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Ruarri submitted that this was a serious case of dealing with a child under the age of 12 years. However, he conceded that there were no strong aggravating factors and agreed that a 10-year sentence would be sufficient.

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 have summarised in table 1 the sentences I have imposed since 2004 for sexual penetration.

TABLE 1: SENTENCES ON SECTION 229A –
SEXUAL PENETRATION OF A CHILD UNDER THE AGE OF 16 YEARS,
CANNINGS J, 2004-2007

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
12	The State v Sawan Raumo CR No 876/2007, 18.09.07, Buka	Offender aged 26 – victim, a girl, aged 6 – digital penetration of the vagina – no aggravated violence – offender cooperated with police – pleaded guilty – no compensation attempted – first offender.	10 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.

13. 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 35 and the victim 11, an age gap of 24 years.
   
2. Is the victim not far under the age of 16 years? No.
   
3. Was there consent? No. The victim was so young that she cannot be regarded as having consented.
   
4. Was the form of penetration other than penile penetration? No.
   
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? Yes.
   
7. Did the incident have only a minimal impact on the child? Neutral. There is no evidence of a severe adverse impact on the child.
   
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? Yes.
   
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.
    

14. To recap, mitigating factors are:

• No 5 – no weapon or aggravated violence;
• No 6 – no physical injury or STD;
• No 8 – no relationship of trust;
• 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.
  

15. Aggravating factors are:

• No 1 – large age gap;
• No 2 – tender age of victim;
• No 3 – no consent;
• No 4 – penile penetration;
• No 10 – did not give himself up;
• No 12 – no reconciliation.
  

16. There are nine mitigating factors and six aggravating factors. 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?

17. 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 one year, two months.

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

18. 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

19. Francis Guandi Borie, 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	1 year, 2 months
Resultant length of sentence to be served	8 years, 10 months
Amount of sentence suspended	Nil
Time to be served in custody	8 years, 10 months

Sentenced accordingly.
__________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender