State v Makele [2007] PGNC 257; N5031 (13 July 2007)

N5031

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 83 OF 2005

THE STATE

V

FRANK KUI MAKELE

Kimbe: Cannings J
2007: 22 May, 3, 10, 13 July

CRIMINAL LAW – sentencing – engaging in act of sexual penetration with a child under the age of 16 years – sentence after trial – victim, a 13-year-old girl – Criminal Code, Section 229A(1).

A man was found guilty after a trial of engaging in an act of sexual penetration with a child under the age of 16 years, a 13-year-old girl. There was no consent.

Held:

(1) The maximum penalty in this case was 25 years and a useful starting point is around the middle of the available range, 12 years imprisonment.

(2) Mitigating factors are: offender acted alone; no weapon or aggravated violence; no STD; no trust relationship; isolated incident; no further trouble; first offender.

(3) Aggravating factors are: no consent; did not give himself up; no co-operation with police; no reconciliation; did not plead guilty.

(4) A sentence of 10 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:

Jack Mari v The State SCR No 19/2006, 02.03.07
Joe Nawa v The State SCR No 16/2006, 02.03.07
Saperus Yalibakut v The State SCRA No 52/2005, 27.04.06
The State v Biason Benson Samson (2005) N2799
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 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 an offence under Criminal Code, Section 229A(1).

Counsel

F Popeu, for the State
O Oiveka, for the offender

13th July, 2007

1. CANNINGS J: 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, a 13-year-old girl. The offender, Frank Kui Mekele, committed the offence on Independence Day, 16 September 2004 at Balangore village, Vitu Island, West New Britain. I convicted the offender on the strength of the victim's evidence, which was that after the Independence celebrations she went to her house, then to the bush to go to the toilet. There is a special place about 50 metres from her house which is used as a toilet. There are hills and a small cave with bushes around it. The toilet place is not visible from the house as there are trees in between. She got up and was on her way back to the house when Frank Kui called her over towards him, offering betel nut. She went over to get some betel nut then he grabbed her hand and forced her to the ground. He took her trousers off and sexually penetrated her. He held on to her tightly and pushed his penis into her vagina. She felt a lot of pain. She had never had sex before. She was wearing a shirt and skirt with trousers inside. She tried to call out when he was holding her but he closed her mouth. The incident happened about 3.00 pm.

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. A paraphrased summary of his response follows:

I am sorry for what I have done. I ask for forgiveness and mercy from the court. My parents are old and I have a block that I need to look after. I ask for probation.

PRE-SENTENCE REPORT

4. I received a pre-sentence report under Section 13(2) of the Probation Act. The report, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, which is summarised below.

FRANK KUI MEKELE: 23-year-old male.

Residence: has been living recently with his aunty and other family members at Morokea, near Kimbe.
Family background: parents are from Balangore, Vitu, WNB – both alive – offender third-born in family of eight children – raised by his uncle and aunty since 1994.
Marital status: single.
Education: grade 8, Kwalekessi Primary, Hoskins.
Employment: was employed for three months as a bricklayer by Nivani Company prior to being remanded in custody regarding the offence.
Health: OK.
Financial status: no present cash or income.
Plans: commit himself to church activities.
Victim's family's attitude: they have tried since 2004 to get the offender or his parents to pay K5,000.00 compensation, to no avail – the offender has never said sorry for what he did – neither the offender nor his family have made any attempt to settle the problem.
Offender's family's attitude: the aunty he lives with was interviewed but she is not in a position to provide much support for him if he is given a suspended sentence – the offender's parents live on Vitu and were not interviewed.
Attitude of community: no major behavioural problems at Morokea – involved in church activities.
Assessment: not a threat to the community but there has been no reconciliation with the victim or her family.
Recommendation: the offender is not suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mr Oiveka highlighted the offender's prior good character and the fact that he is a first offender.

SUBMISSIONS BY THE STATE

6. Mr Popeu, for the State, submitted that a sentence of 15 years should be imposed, in light of the fact that penetration was by force and that the offender had pleaded not guilty, necessitating a trial.

DECISION MAKING PROCESS

7. 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 should the head sentence be?
• 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?

8. The penalty regime for an offence under Section 229A(1) is as follows:

• if, at the time of the offence, the child was aged 12 years or more AND there was not an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to 25 years imprisonment; but
  
• if, at the time of the offence, either the child was under the age of 12 years OR there was an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to life imprisonment.
  

9. Here, the child was not under the age of 12 years and there was no existing relationship of trust, authority or dependency. Therefore the maximum penalty is 25 years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of 12 years as the starting point.

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

11. I will summarise in table 1, the sentences I have imposed for sexual penetration and in table 2, the result of three recent Supreme Court cases, where there was an appeal against sentence for sexual penetration. These sentences will give a guide to the sort of sentences that should be imposed in the present case.

TABLE 1: SENTENCES ON SECTION 229A

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 – complainant, 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 – complainant, 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 – complainant, 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 – complainant, 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 – complainant, 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 – complainant, 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, Bialla	Offender aged 27 at time of offence charged with one count of sexual penetration – complainant, 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 – complainant, 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 – complainant, 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

TABLE 2: SUPREME COURT SENTENCES ON SECTION 229A

No	Case	Details	Sentence
1	Saperus Yalibakut v The State SCRA No 52/2005, 27.04.06, Wewak	Mature aged offender – 11-year-old girl – suggestion of consent – appeal against original sentence of 17 years – sentenced reduced by Supreme Court.	14 years
2	Jack Mari v The State SCR No 19/2006, 02.03.07, Lae	Mature aged offender – 14-year-old girl – father/stepdaughter relationship – review of original sentence of 20 years – sentenced reduced by Supreme Court.	15 years

3

Joe Nawa v The State SCR No 16/2006, 02.03.07, Lae

Mature aged offender – 8 year-old girl – father/stepdaughter relationship – review of original sentence of 20 years – sentenced reduced by Supreme Court.

17 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 complainant? Neutral – the offender was aged 20 and the complainant 13; an age gap of seven years.
   
2. Is the complainant not far under the age of 16 years? Neutral – she was 13, going on 14 at the time of the offence.
   
3. Was there consent? No.
   
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? Neutral.
   
8. Was there no relationship of trust, dependency or authority between the offender and the complainant or, if there was such a 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? No.
    
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? Neutral.
    
16. Is this his first offence? Yes.
    
17. Can the offender be regarded as a youthful offender? Neutral. He was aged 20.
    
18. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? No.
    

13. There are seven mitigating factors compared to five aggravating factors. Comparing this case with the others summarised earlier, I fix a sentence just below the starting point of 12 years. The head sentence will be ten years imprisonment.

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

14. 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, one year, four months.

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

15. The pre-sentence report is not a favourable one, especially as the offender has not attempted to apologise or reconcile with the victim or her family. Therefore I will not suspend any part of the sentence.

SENTENCE

16. Frank Kui Makele, having been convicted of the crime 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, is sentenced as follows:

Length of sentence imposed	10 years
Pre-sentence period to be deducted	1 year, 4 months
Resultant length of sentence to be served	8 years, 8 months
Amount of sentence suspended	Nil
Time to be served in custody	8 years, 8 months

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