State v Waida [2008] PGNC 38; N3311 (12 March 2008)

N3311

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 257 of 2008

THE STATE

-V-

SIRO WAIDA

Tabubil: Kandakasi, J.
2008: 7 and 12 March

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Particular offence – Sexual penetration of child under 16 – Breach of existing trust as first biological cousin – Use of threat and force – Victim becoming pregnant – No compensation paid – Guilty plea – First time offender – Prevalent offence – Sentence of 17 years imposed – Criminal Code s. 229A(1).

Papua New Guinea Cases Cited:
The State v. Eddie Trosty (10/09/04) N2681
The State v. Peter Lare (20/05/04) N2557
The State v. Kemai Lumou (23/09/04) N2684
The State v. Thomas Angu (21/04/05) N2830
The State v. John Ritsi Kutetoa, (22/03/05) N2814
The State v Paul Nelson, (25/05/05) N2844

Counsel:
J. Kesan, for the State.
P. Kapi, for the Prisoner.

12 March, 2007

1. KANDAKASI J: You pleaded guilty to a charge of sexual penetration contrary to s. 229A (1) and (3) of the Criminal Code. After receiving your address on sentence together with your lawyer and that of the State’s submissions, I adjourned to today for a decision on your sentence.

Issue Before the Court

2. The issue for the Court to decide is, what is an appropriate sentence for you? In order to properly determine that issue, I need to take into account the relevant facts and the circumstances in which you committed the offence, the offence and the sentencing trend, your personal and family backgrounds and the factors operating both in your favour as well as those operating against you.

Relevant Facts

3. Turning firstly to the relevant facts, I note that, sometime in February 2004, you met the victim (named) of your offence, who is your blood or biological first cousin. She was 14 years old at the time. You asked to have sexual intercourse with her, which she refused because of the close blood relationship. You did not accept that and persisted with your request. She did not give in. You did not respect and accept her response and the reasons she gave and went onto using a knife to threaten and force her into the nearby bushes and had sexual intercourse with her without her free consent. Evidence on the Court file shows that, you had repeated acts of sexual inter course with her in the same way until she became pregnant in January 2005 and she revealed that you were responsible. However, the State did not include the other sexual attacks of the victim, so I will not take that part of the facts into account and treat this as only one instance of sexual attack on the victim.
   

The Offence and Sentencing Trend

4. With the above facts in mind, I turn to a consideration of the offence and its sentencing trend and tariffs. When you did what you did, you broke the laws of our land. In particular, s. 229A of the Criminal Code which creates and prescribes the offence of sexual penetration of a child under 16 years of age as follows:
   

"229A. Sexual penetration of a child

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life."

5. As I have observed in one of the decisions I handed down during this circuit, this was an improvement and upgrading in terms of the penalty by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 by way of an amendment to the then existing law. Prior to the amendment, the prescribed maximum penalty for this offence was as low as 5 years. The amendment thus, increased the penalty to 25 years and where there is a breach of trust, up to a maximum of life imprisonment and made it apply irrespective of the sex of the victim.

6. I have expressed the view in a number of cases as in the case of The State v. Eddie Trosty,[1]that in view of the reasons for the amendments to the law, sentences for the offence of sexual penetration of girls under the age of 16 must be beyond the maximum prescribed under the old law. I then decided to impose a sentence of 6 years on a guilty plea. The prisoner and his victim in that case, had a boyfriend and girlfriend relationship. The victim was 15 years old whilst the prisoner was 21 years old at the time of the offence. They had prior several consensual sexual intercourses. The prisoner did not cause any injuries to the victim. He also did not introduce the victim to any sexually transmitted disease or impregnated her. These factors influenced me to arrive at the sentence of 6 years.

7. Before that however, in The State v. Peter Lare,[2] I imposed a sentence of 20 years on an indictment presented under s. 229A (1). There, the prisoner was an uncle to the victim and he had several and or repeated acts of sexual penetration of the victim over a four year period. There was a substantial age difference between them. The prisoner was 40 years old whilst the victim was under 12 years of age. The prisoner did not express any genuine remorse, evidenced by a lack of payment of any form of compensation to the victim and her side. Further, the prisoner infected the victim with a sexually transmitted decease.
   
8. In arriving at that sentence, I noted that the:
   

"... amending legislation came about out of a growing concern over an ever increasing and prevalent sexual offences and crimes against children. This concern was not only a local PNG concern but a world wide concern to protect the victims of such crimes particularly women, girls and children because of their vulnerability and therefore not able to defend themselves. The amendment also represents an action by Parliament against past sentences not deterring offenders like you and other would be offenders. Many judgments have acknowledged this failure of the past sentences. Examples of such judgments to name only a few are: The State v. Damien Mangawi (Unreported judgment delivered on 13/06/03) N2419; The State v. Dii Gideon (Unreported judgment delivered on 05/03/02) N2335.

No doubt, Parliament [was] ...aware of the kind of sentences the Courts were imposing and more importantly those sentences failing to deter other men and older boys who were intent on committing this offence against small girls. Some of the cases that went before the Courts were actually rape and others were cases of incest in blatant breach of trust placed in the older offenders by the victims as close relatives. Parliament therefore felt the need, in my view, to re-emphasis the seriousness of the offence and re-enacted the offence and in terms of the particular wording in s. 229A. This enactment has come at a time when past sentences have certainly not deterred people like you from committing the offence despite all the concerns raised publicly both within our country and in the international arena".

9. Later, in The State v Kemai Lumou,[3] I had regard to the above decision and the particular circumstances in which the prisoner committed the offence in the above case and then imposed a sentence of 17 years. There, the Court convicted the prisoner after a trial. The facts disclosed a rape of a niece by an uncle using a bush knife. The victim was much younger than the offender was. Despite this, the State charged him with sexual penetration and not rape under s.229A (1).
   
10. Sometime later, Mr. Justice Lay had regard to my decision in The State v. Peter Lare,[4] and imposed a sentence of 20 years for one out of a number of sexual offence charges in the case of The State v. Thomas Angup.[5] From the head note to that case, I note that, the defendant was convicted on his guilty plea to 1 count of sexual touching of a child under 12 years in 1998, 1 count of sexual penetration of a child under 12 years in 1998, 2 counts of sexual penetration of a child under 16 years, in 2000 and another one in 2003, on unspecified dates. The prisoner committed these offences in breach of an existing trust relationship. Clearly, the charges arose out of a pattern of sexual abuse of the victim over a period of 6 years. The victim became pregnant and bore a son before she reached age 16. Due to her pregnancy, the victim’s schooling got terminated prematurely.
    
11. Later on, Cannings J, in his judgment in The State v. John Ritsi Kutetoa,[6] cited the judgments in The State v. Peter Lare,[7] and The State v Kemai Lumou[8] and imposed a sentence of 17 years. There, the prisoner got his stepdaughter into a room in their house, where he sexually penetrated her. The victim was about 11 years old at the time. There was a relationship of trust being a stepfather and stepdaughter which the prisoner breached.
    
13. In May of 2005, Cannings J., in The State v. Paul Nelson,[9] in my view, gave an excellent summation and a comparable table of nearly all of the cases on sexual penetration under s. 229A of the Code thus far dealt with by the Court since the amendments in 2002. That summation shows that, sentences have ranged from as low as 2 years up to the highest at 20 years. Those going beyond 2 years and 6 years have been in cases, where the offenders committed the offence in breach of an existing trust, there exist serious aggravating factors such as serious injuries, threats or actual use of violence to secure the commission of the offence, or the victim has been exposed to sexually transmitted deceases or has become pregnant.
    

Sentence in Your Case

14. Bearing the above in mind, I now proceed to a consideration of an appropriate sentence in your case. For that purpose, I note and take into account what you said in your own and that of your lawyer’s address on sentence. You said sorry for committing the offence. Also, you said sorry to your small father or your uncle for committing the offence against his daughter. At the same time, you said you are a first time offender and asked the Court to exercise mercy toward you.
    
15. Your lawyer in his submission added that, you are a single man aged 22 years. You come from a large extended family of one natural father and two step mothers with 7 brothers and 7 sisters. You are the 8th born in the family. Both of your parents are alive and you live with your parents and siblings in the village. Education wise, you have been up to grade 6 only. In terms of employment, you work in a rubber plantation as a budder. Your lawyer concluded by pointing out that you have been in custody for 6 months before being bailed out.
    
16. After outlining your family and personal backgrounds, your lawyer, urged the Court to take a number of factors into account in your mitigation, namely, your guilty plea, being a first time offender and your expression of remorse before sentencing you. Taking those factors into account and the kinds of sentences imposed in some of the case cited above, your lawyer, urged the Court to impose a sentence between 10 and 15 years.
    
17. The State on the other hand, urged the Court to take into account a number of aggravating factors and impose a sentence between 20 and 25 years. Counsel for the State urged the Court to note that, you committed the offence against a close blood relative, you prematurely impregnated her marring her future, you have not paid any compensation or otherwise appeased the wrong you brought upon the victim and her family and finally that, you committed an offence which is prevalent.
    
18. In order to determine an appropriate sentence for you, it is necessary to consider the factors for and against you. I therefore turn to a consideration of these factors starting with those against you.
    
19. First, I note that you committed the offence against your own blood and first cousin. In committing the offence, you destroyed the trust she and other members of her immediate family had in you as a cousin brother and in particular no expectation that you would do such a thing. The law says people who commit offences in breach of any form of trust need to be dealt with more sternly than where such a factor is missing. I am not a scientist but the little I know says that, sexual relationship between very close blood relationships poses medical risks for children born out of such relationships. It follows therefore that, the child the victim has given birth to may not live a normal life as the child grows up. That is an additional factor against you.
    
20. Secondly, I note that, you committed the offence in circumstances that clearly constituted aggravated rape. This is to be contrasted with a case in which there is consensual sexual intercourse. A woman or girl who is raped has her person violated. Her right to be respected as a human being who as to freely make a choice is trodden over by the selfish desires of her violators. There are repeated calls for the protection, care and respect for our women, girls and children. This leads to the next factor against you.
    
21. The next factor is that, the offence of rape and sexual penetration of a girl under the age of 16 and even much younger than that is very prevalent in our country. Indeed, majority of the cases, I have had to deal with in my past and present circuit run here, is sexual offences against young girls and women. This tells us one thing very clearly. The kinds of sentences that the courts have been imposing to date is of no deterrence to people like you who are intent on committing this serious crime against our women and young girls and children.
    
22. Your victim’s age and the difference between that and your age is the other factor against you. The victim was 14 years old while you were older than her. Of the two of you, you were more mature and hence in a position to know that, what you set out to do was wrong but you did it anyway. You committed the offence even in the face of your victim who was much younger reminding you that, what you wanted to do was wrong because of the existing blood relationship. You took advantage of your age and strength to overpower her and commit the offence against her.
    
23. Next, I note that your forceful sexual penetration of the victim made her pregnant prematurely. I say prematurely because, the victim was 14 years old at the time. She was not ready mentally and psychologically to become pregnant and become a mother so early on in her life. This is evidenced by the fact that, she did not consent to your sexual demands. She will bear for the rest of her life, the pain of you violating her and making her pregnant. I am not too sure whether she stands any chance of someone else marrying her. Clearly, her virginity has been unlawfully taken away by her own cousin brother against her will.
    
24. Finally, I note that, you and your family did not take any meaningful steps to compensate the victim for all the pain, shame and trouble you brought upon her with the premature pregnancy and child birth. Instead of helping to appease the wrong you brought upon the victim and her immediate family, evidence on file suggests that, you, your father and your brothers took up arms and attacked the victim’s father, thereby adding more misery and pain. It seems to me, you took advantage of the large size of your immediate family as against that of the victim’s. This sort of behaviour cannot be condoned and tolerated in our society if we are to live in peace and harmony and prosper.
    
25. Turning then to the factors in your favour, I note firstly, your guilty plea. This is consistent with the position you took from the point of your arrest, to committal and now before this Court. Hence, I note that you cooperated well with the authorities. This factor in most cases allows for some reduction or leniency toward an offender. You will be accorded the benefit this brings you.
    
26. Secondly, I note and accept that, you are a first time offender. That means you have not been in trouble with the law before. Usually the law exercises some leniency toward first time offenders, which I must ensure you are accorded with.
    
27. Thirdly, I note your expression of remorse. However, I do not find this to be genuine in the light of my observation earlier that, instead of paying compensation and or otherwise take steps to appease the wrong you brought upon the victim and her family, you and your family attacked the victim’s father and have not to date, paid any compensation.
    
28. Finally, I note, that apart from the psychological pain and trauma you have caused the victim by your sexual and physical violation of her, you have not inflicted any physical injury to her. Usually the presence of some physical injury to victims of such violent offences operates against an offender.
    
29. Weighing the factors for and against you as well as your personal and family background, I find that the factors against you seem to outweigh those in your favour. However, I do not find this to be a case that warrants the maximum prescribed penalty as I am not able to find this to be the worse case of its kind. Your case comes somewhat closer to the case of The State v. Peter Lare,[10] or even that of The State v. Thomas Angup.[11] The only marked and clear difference between those cases and your case is the fact that, in those cases, the sexual violation of the victims went for a period of 4 years in the first case and about 6 years in the second case. Another marked difference is the age difference between you and the offenders in those two cases. They were mature married men with children. You are younger and single. Another difference is the fact that in the first case, the victim got infected with a sexually transmitted decease. That however makes no difference because in your case, you made your victim pregnant as did the victim in the second case.
    
30. Considering what I have just said, your sentence will have to be below 20 years but certainly above the 10 years mark. I consider a sentence of 17 years appropriate and I impose that sentence against you. Out of that sentence, I order a deduction of the 6 months you spent in custody whilst waiting for your trial and the additional 6 days you spent in custody whilst waiting for your sentence. That will leave you with a balance of 16 years 5 months and 3 weeks and 1 day yet to serve. I order that period in hard labour at the Ningerum Correction Services. A warrant of commitment in those terms will issue forthwith.
    

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyer for the Prisoner

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^[1] (10/09/04) N2681.
^[2] (20/05/04) N2557.
^[3] (23/09/04) N2684.
^[4] Supra note 2.
^[5] (21/04/05) N2830.
^[6] (22/03/05) N2814.
^[7] Supra note 2.
^[8] Supra note 3.
^[9] (25/05/05) N2844.
^[10] Supra note 2.
^[11] Supra note 5.