State v Soni [2008] PGNC 237; N3694 (14 November 2008)

N3694

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 227 & 229 OF 2006

BETWEEN:

THE STATE

AND:

PHILIP SONI & TONY ILONG

Kavieng: Gavara-Nanu, J
2008: 14 November

CRIMINAL LAW – Sentence - Pleas of guilty – Sexual penetration of a girl under 16 years old by two young men – Criminal Code Act, Chapter No. 262 (as amended) – s. 229A(1) – Victim mentally disabled – Sexual intercourse non-consensual – Application of the doctrine - "most favourable version of facts" for the accused in respect of the versions of facts given by the accused in their Records of Interview – Application of the doctrine not limited to statements made on allocutus– Aggravating factors outweighing mitigating factors – Penalty should reflect accused’s decision to plead guilty – Sentence of 15 years imprisonment and K500 fine.

Case cited:

Papua New Guinea Cases

Immiyo Wamela v. The State [1982] PNGLR 269
John Baipu v. The State (2005) SC796
Koniel Alar & Hosea Biu v. The State [1979] PNGLR 300
Leonard Sabadi v. The Police (2002) N2164
Mitige Neheye v. The State, Martin Gawi v. The State [1994] PNGLR 71
Peremai Naroi v. The State [1987] PNGLR 293
Public Prosecutor v. Tom Ake [1978] PNGLR 469
R v. Gabai Vagi [1973] PNGLR 30
Saperus Yalibakut v. The State (2006) SC890
The State v. Aaron Lahu N2798
The State v. Baika Martin (2008) N3312
The State v. Billy Kauwa [1994] PNGLR 503
The State v. Binga Thomas N2828
The State v. John Erip Muge (2006)
The State v. Kemai Lumo N2684
The State v. Lastin Inom N329
The State v. Mark Kanapio (2005) N2800
The State v. Michael Siwiri (2006) N3382
The State v. Ndrakum Pu-Uh (2005) N2949
The State v. Patrick Jul (2005) N3167
The State v. Thomas Angup N2830
The State v. Tobby Tani N2063
The State v. Willie Domonic (2005) N2938

Other case cited:

Weaver v. Samuels (1971) SASR 116
R v. Tait (1979) ALR 473

Counsel:

S. Kesno, for the State
O. Oeveka, for the Accused.

1. GAVARA-NANU J: The accused pleaded guilty to a charge on an indictment that they each and severally on 2nd August, 2005 at Talis village in Lihir Island sexually penetrated one Rufina Katel a female under the age of 16, contrary to s.229 A (1) (a) of the Criminal Code Act, Chapter No. 262 (as amended)

2. This offence carries the maximum penalty of 25 years imprisonment.

3. The facts of the case are as follows; on 2nd August, 2005, the victim and a friend, Dorothy Pangpang were returning to their village from Palie Health Centre after visiting the victim’s aunty who had delivered a baby at the Health Centre. On the way, the victim and Dorothy met up with the accused. As they were walking towards the victim’s house, Tony Ilong (Tony) offered the victim a betel nut, then suddenly, accused Philip Soni (Philip) pulled the victim into the nearby bushes, removed her clothes then told her to lie down on the ground he then sexually penetrated her. After Philip sexually penetrated the victim, she was coming out of the bush when Tony who was waiting on the road pulled her by the hand and took her to the same bush and sexually penetrated her. The victim went and reported the matter to one of her aunties in the village.

4. The offence took place in the evening at about 7.00pm.

5. The victim had only been up to Grade 4 in school because she had an existing mental condition which had forced her father to withdraw her from school. Both accused were aware of this at the time of the offence.

6. The undisputed evidence shows that after the accused sexually penetrated the victim, she was crying as she went and reported the matter to her aunty. The aunty reported the matter to the victim’s mother and the two women went to the accused and got on them.

7. At the time of the offence, the victim was 14 years old, Philip was about 18 years old and Tony was about 23 years old. Thus, the age difference between the victim and Philip was about 4 years and with Tony, it was about 8 years.

8. The Court has been told that Tony is now married, he has no formal education, Philip on the other hand is single, he has reached Grade 10 in school. He has also done 3 years training at a vocational school for which he holds a Certificate.

9. Both accused have in the past worked for Lihir Gold mine. They were on K500.00 cash bail until 4th of this month when they were remanded in custody by the Court following their conviction after they pleaded guilty to this offence. They are both first time offenders and have expressed remorse. One of the main aggravating features about this case as I alluded to earlier is that the victim had an existing mental condition, which both accused were aware of as they admitted this in their respective Records of Interview.

10. Sexual intercourse with the victim was nonconsensual. This is indicated clearly by the victim crying and reporting the incident to her aunty. The other girl Dorothy Pangpang also witnessed the two accused pulling the victim into the nearby bushes where they sexually penetrated her.

11. There is no evidence or even suggestion by the accused that the victim may have or had encouraged them to have sex with her. Nor is there evidence that she may have had sexual relationships with them or either of them before the incident.

12. This is a case where two accused used the victim for their sexual gratification. The victim in her statement to the police states that when Philip penetrated her, she felt great pain. Unfortunately there is no medical report to show whether she was a virgin at the time of the offence, not that it would make much difference to the punishment for the accused. Because of the absence of medical evidence, I am also deprived of information as to the injuries the victim suffered, if any. But that aside, there is no doubt in my mind that the victim did suffer mental and psychological damage which she will bear for the rest of her life. There cannot be any doubt about this, given her mental condition. She was a victim of a serious sexual assault by two young men, who acted in concert. This aggravates the offence.

13. The defence has submitted that 8 to 12 years imprisonment would be an appropriate punishment for the accused. In considering their sentence, I note that both accused have maintained in their respective Records of Interview that the victim was a willing party. This assertion by the accused conflicts directly with the story given by the victim, Dorothy Pangpang, the two aunties and the mother of the victim in their respective statements to the police.

14. The question then is, should I accept the version of facts given by the accused in their respective Records of Interview that the victim was a willing party or that she encouraged them to have sex with her; as being the most favourable version of facts for the accused? Adoption of this doctrine, i.e. ‘a version of facts or events that is most favourable to the accused’, is dependent on whether the version given by the accused is within the bounds of reasonable probability. It should be noted that the doctrine applies generally to a statement made on allocutus by an accused which the Court should take into account towards mitigation of punishment for the accused. The doctrine is applicable when there is a conflict between the version of facts given by the accused and the version of facts given by the State witnesses. See, The State v. Lastin Inom N329; The State v. Billy Kauwa [1994] PNGLR 503; The State v. Tobby Tani N2063; The State v. Aaron Lahu N2798; The State v. Binga Thomas N2828; The State v. Mark Kanupio (2005) N2800; The State v. Willie Dominic (2005) N2938; The State v. Ndrakum Pu-uh (2005) N2949; The State v. Patrick Jul (2005) N3167; The State v. Baika Martin (2008) N3312; The State v. Michael Siwiri (2006) N3382; Koniel Alar & Hosen Biu v. The State [1979] PNGLR 300; Public Prosecutor v. Tom Ake [1978] PNGLR 469; Imyo Wamela v. The State [1982] PNGLR 269; Peremai Naroi v. The State [1987] PNGLR 293; John Baipu v. The State (2005) SC796; Saperus Yalibakut v. The State (2006) SC890; R v. Gabai Vagi [1973] PNGLR 30 and The State v. John Erip Muge (2006). See also Weaver v. Samuels [1971] SASR 116, at 119 and R v. Tait [1979] FCA 32; (1979) 24 ALR 473.

15. The doctrine however has a broad application, thus its application is not limited to statements made by the accused on allocutus, it would also apply to a version of facts or events given by the accused in their Records of Interview where the accused plead guilty as in this case and where the accused seek to rely upon the version of facts given in their Records of Interview as a mitigating factor; see The State v. Lastin Inom (supra); Public Prosecutor v. Tom Ake (supra) and Leonard Sabadi v. The Police (2002) N2164. The application of the doctrine is only relevant when the Court is considering matters raised by an accused for purposes of mitigating the punishment or penalty.

16. Applying the doctrine to this case, both accused in their Records of Interview maintained that the victim was a willing party. In other words, according to the version of facts given by the accused in their respective Records of Interview, sexual intercourse with the victim was consensual. Nothing they said in their allocutus would attract the application of the doctrine because they only expressed remorse and asked for leniency.

17. Should I then accept their version of facts as being the most favourable to them to mitigate their punishment, notwithstanding the evidence to the contrary by the victim, Dorothy Pangpang, the two aunties and the mother? This question has to be decided on the overall facts and circumstances of the case. Having had a closer look at the two Records of Interview for the accused and the statements made by the victim and her supporting witnesses, I have come to a firm view that the version of facts given by the accused in their respective Records of Interview do not support the application of the doctrine in their favour because their version of facts given in their respective Records of Interview, conflict at crucial points. I therefore reject their version that the victim was a willing party and that sexual intercourse was consensual. I do not think such version would be within the bounds of reasonable probability.

18. The end result is that the victim did not agree for the two accused to have sex with her. This is another serious aggravating factor.

19. This puts the accused as having committed an offence with no serious mitigating factors. In The State v. Kemai Lumo N2684, the accused who was a first time offender was charged with sexual penetration of a girl under the age of 16, the circumstance in which the offence was committed were similar to rape. In that case Kandakasi, J found that, the aggravating factors far outweighed the mitigating factors, and the facts disclosed a situation akin to rape. The case also involved breach of trust by the accused who was sentenced to 17 years imprisonment in hard labour. His Honour in that case had special regard to the offence being committed in circumstances similar to rape, where sexual penetration was achieved by use of force.

20. In the other case of The State v. Thomas Angum N2830, the accused who was charged with sexual penetration of a girl under the age of 12, was sentenced to 20 years imprisonment. In that case, the Court had special regard to the fact that the abuse of the victim went on for six years. There was also a breach of trust by the accused and the age difference between the victim and the accused who was aged 34 was big. The accused was charged with one count of sexual touching and three counts of sexual penetration. He was a first time offender. The aggravating factors viz. breach of trust, big age difference, long period of abuse and the accused being charged with one count of sexual touching and more than one count of sexual penetration clearly outweighed the mitigating factors.

21. The law does not recognize consent by a girl under the age of 16 as a defence on a charge of sexual touching or sexual penetration. In other words, the law regards a girl under the age of 16 as not capable of consenting to sexual intercourse or touching.

22. The rational behind this principle of law is that a girl under the age of 16 is regarded by law as being immature to understand and to fully appreciate the implications and consequences of an activity of sexual nature including sexual intercourse. Thus the law applies to protect the girl until she is 16 years old when she is regarded by law as an adult and is mature enough to understand and engage in any form of sexual activity.

23. The reality in Papua New Guinea and elsewhere for that matter is that the law seems to be behind the cultural norms and practices and social settings where girls are driven or forced by their cultural and social upbringings to become sexually active at an early age. It is common knowledge that by the age of 13 and 14 girls are already sexually active. This is common in societies where young people are given greater social freedom, especially in affluent and developed nations.

24. In Papua New Guinea and in many third world countries, there is even a greater paradox or irony brought about by cultural and traditional norms especially in the villages and remote tribal communities where young girls when reaching puberty are expected to start behaving and conducting themselves as mature women or adults. This happens when they are expected by their parents and even extended family members to perform their cultural and traditional roles as young women at an early age, such as cooking, making garden, carrying firewood and so on to prepare them as future wives. It is quite common in remote parts of Papua New Guinea to find very young girls being encouraged to behave and conduct themselves as mature women well before they turn 16. Thus their cultural norms and practices force them to mature early in their thinking and attitude which in most cases lead them to doing things which only mature women do including engaging in sexual relationships with men.

25. Thus, in my opinion, it would only be fair and just that these cultural and traditional norms are given due consideration and regard on sentence by the Courts when determining punishment for the accused who are charged with sexual offences, including sexual penetration of girls below the age of 16. More so, in cases where there is evidence that the victim has had sexual relationship with the accused or other men in the past and the victim has in some way encouraged the accused and has consented to the particular sexual activity including sexual intercourse. An accused in such a situation should in my opinion be given a lenient punishment. A situation would of course be different where the victim is forced or overawed by the accused and her submission to any sexual activity including sexual intercourse is nonconsensual as in this case. See, Mitige Neheye v. The State and Martin Gawi v. The State [1994] PNGLR 71. In that case, Wood, J had something to say on this point. His Honour at 73 said:

"The Law recognizes that young people may not know the full implications of sexual intercourse and they, thus, may be overawed or feel disadvantaged when approaches are made of a sexual nature. So they submit to sexual contact without necessarily realizing what is happening or going to happen. Therefore consent is not to be considered. The law recognizes that full mature consent may not exist; therefore, under the law, incest is the equivalent of rape."

26. It is a fundamental principle of sentencing that because each case has its own facts and circumstances, each case has to be decided on its own merits. Thus, the sentences imposed in the cases cited above are only to provide guidance to the Court in deciding the appropriate punishment for the accused in this case.

27. In deciding the punishment for the accused, I take into account following aggravating factors:-

1. The victim was under aged.
   
2. This was an offence committed jointly by two strong young men.
   
3. They had sexual intercourse with the victim one after the other.
   
4. The sexual intercourse was not consensual as the girl or the victim was overawed and disadvantaged when she was taken by surprise as the accused led her into the bush and had sexual intercourse with her one after the other.
   
5. She was mentally disabled. This condition was known to both accused at the time of the offence. There is evidence that because of her mental condition, her father withdrew her from school after only completing Grade 4. This fact was also known to both accused.
   
6. Lastly, I have no doubt that she would have suffered psychological and emotional damage as a result of this offence. This is evidenced by the victim crying and going straight to her aunty and reporting the incident to her. Thus, a special regard must be had to the mental condition of the victim.
   

28. I also note the following mitigating factors:-

1. The accuseds are first time offenders.
   
2. They co-operated fully with the police except for their claim that the victim allowed them to have sexual intercourse with her, which I have rejected as false.
   
3. They pleaded guilty before me and expressed remorse which I accept as genuine.
   
4. There was no breach of trust involved.
   
5. This was a single incident in that, it did not happened over a period of time.
   
6. No physical injuries were suffered by the victim. At least there is no evidence of it before me.
   

29. Weighing all these factors, I find that the aggravating factors outweigh the mitigating factors, more so because of the mental condition of the victim to which I have given special regard. Furthermore, sexual intercourse by each accused was not in anyway encouraged by the victim or consensual. This was also a crime committed jointly by two young men.

30. That said, I am also mindful that accused having decided to admit the offence should be rewarded with a degree of leniency in their punishment. It has been said elsewhere that an accused who has decided to plead guilty should be appropriately rewarded with reduction in his sentence. I fully agree with that proposition, otherwise, there is no point in an accused pleading guilty if he is to be punished in the same way as an accused who is found guilty after a trial.

31. The significance of their pleas of guilty is two fold, firstly, it has saved time and expenses for the State in not having to call evidence to prove its case, secondly, the victim did not have to come and give evidence and go through the embarrassment of having to relive the incident, especially given her mental condition.

32. Because the offence has serious aggravating factors, the offence nonetheless calls for a deterrent punitive custodial sentence. On the balance, their punishment should in my opinion be determined at the higher scale of the tariff of sentences for these types of offences.

33. I cannot differentiate between the two accused in terms of the degree of their participation in the crime. I find that they participated in equal degree, thus they should receive equal punishment.

34. In the circumstances, I sentence the accused to 15 years imprisonment in hard labour each. I will deduct 1 week they spent in custody while awaiting sentence, which leaves the balance of their sentence at 14 years 11 months 3 weeks. I further deduct 2 years 11 months 3 weeks on the condition that upon their release from jail, they will be on Good Behaviour Bond for 3 years commencing from the date of their release.

35. Effective term of imprisonment the accused have to serve is 12 years imprisonment in hard labour. They are also each fined K500.00. For this, their respective cash bails of K500.00 are forfeited to the State.

_______________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused