State v Dabu [2008] PGNC 76; N3313 (20 March 2008)

N3313

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 83 of 2008

THE STATE

-V-

EPESIE DABU

Sturt Island: Kandakasi, J.
2008: 19 & 20 March

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Particular Offence – Sexual penetration of 13 year old girl – Mode of penetration – Oral – Act consensual – Substantial age disparity - Reason for change in the law – Sentences have to be higher than those previously imposed – Guilty plea by first time offender – Genuine expression of remorse – Customary compensation paid – Prisoner willing to campaign against sexual abuse of women, girls and children – Need to impose sentences above those imposed for less serious offence of sexual touching - Sentence of 6 years less time spent in pre-trial and pre-sentence custody imposed – Criminal Code ss.19 and 229A(1).

Papua New Guinea Cases Cited:

The State v. Manewa Suliga (19/03/08) N3307.
The State v. Eddie Trosty (10/09/04) N2681.
The State v. Peter Lare (20/05/04) N2557.
The State v Paul Nelson, (25/05/05) N2844.
The State v. Wasa David Marifa (11/03/08) N3308

Counsel:

Mr. J. Kesan, for the State.
Mr. P. Kapi, for the Prisoner.

20 March, 2008

1. KANDAKASI J: Yesterday, you pleaded guilty to a charge of sexual penetration of a 13 year old girl via her mouth contrary to s. 229A (1) 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, on 8 March 2007 at about 5:00 pm, some school children were playing at the end of the airstrip close to the Ok Tedi Mining Limited (OTML)’s warehouse. That included a 13 year old girl. The children were asked to chase away a dog. The 13 year old girl who is the victim of your offence (named) went into OTML’s warehouse looking for the dog for her to chase out. She did not succeed in her search. So she turned and was trying to get out of the warehouse. At that point you approached her and asked if you could sexually penetrate her by putting your penis into her mouth. She agreed and you went onto putting your penis into her mouth. After a little while as your penis was in the victim’s mouth, a security guard called outsid the warehouse. That interrupted you so you stopped what you were doing and took the victim into a room in the warehouse and locked her up. The security guard however, found the victim. After a short conversation with the security guard you led the victim out of the warehouse.

4. Evidence in the Court file, show that, the security guard went and reported you to the parents despite you telling him not to inform anyone. On hearing what you did to their daughter, the parents and relatives of the victim wanted to attack you. Fortunately, the local Law & Order Committee managed to stop that from happening and encouraged them to leave the matter into the hands of the law.

5. At this juncture, I pause to commend local Law & Order Committee for a job well done and also the parents and relatives of the victim in choosing to heed what the Law & Order Committee told them and leaving the matter in the hands of the law. I also commend the security guard who decided to report the matter. If every other person in the community in positions similar to one the security guard, the members of the local Law & Order Committee and the parents and relatives of the victim acted in a similar manner the Law & Order situation in our country will improve greatly. That will no doubt enable all persons in our country to live in peace and harmony. This kind of cooperation from the community must be published and encouraged for the good of all of us in our beautiful country.

The Offence and Sentencing Trend

6. You broke the law, when you did what you did. Section 229A (1) of the Criminal Code prohibits the kind of conduct you engaged yourself in. That section creates and prescribes the penalty for 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."

7. As I have observed in the decision I handed down yesterday in the case of The State v. Manewa Suliga,[1] 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 5 years. The amendments thus, increased the penalty to 25 years and made it apply irrespective of the sex of the victim.

8. Again as I said yesterday, in number of cases, as in The State v. Eddie Trosty,[2] I held that, having regard to 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 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, giving a age difference of 6 years only. 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. These factors influenced me to arrive at the sentence of 6 years.

9. There has been however, more serious cases, such as the case of The State v. Peter Lare.[3] There, I imposed a sentence of 20 years. 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 age 12 years. 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.

10. 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 (...13/06/03) N2419; The State v. Dii Gideon (...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".

11. I made these observations in the context of a sexual penetration of girls under the age of 16 or 12 years and where they had been sexually penetrated through there vagina which is the normal and natural way. You committed the offence by sexually penetrating the victim by the use of your penis via her mouth. That is quite unnatural for most people. I therefore raised with your lawyer the possibility of that being an aggravating factor. His response, which I consider is correct and hence, the State did not take issue, is that the definition of the phrase "sexual penetration" in s. 6 of the Code, does not treat sexual penetrations through means other than vaginally differently. This provision defines the phrase to mean:

"(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(a) the introduction, to any extent, by a person of any object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes."

12. That being the case, it is appropriate to allow myself to be guided by the sexual penetration cases already dealt with by the Court in the absence of a specific case on point. Having said that, I note as I did in the decision, I handed down yesterday, Cannings J., in The State v. Paul Nelson[4] 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 range 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 exists 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

13. Bearing the above sentencing trend and tariffs in mind, I now turn to a consideration of a 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.

14. You said sorry for committing the offence and that you have initiated and paid compensation for the wrong you committed. You went on to say that, you are a first time offender and that you pleaded guilty to the commission of the offence. Further, you said you now realize after going to the process of arrest up to appearing before this Court that, what you did is wrong. You say you committed the offence in ignorance of the law and now that you are aware you are prepared to tell other men and boys not to do it. Furthermore, you told the Court that, you have been in custody since 5 November 2007, which is just over 4 months now. Finally, you told the Court that you have committed the offence and said you are now in the hands of the law to receive whatever punishment the Court imposes against you.

15. Your lawyer added and I accept that, you are 45 years old married with 6 children, 2 of whom are already married and have their own children. So you are a grand father. You have 4 brothers and 2 sisters. You are the 4th born in your family. Both of your parents are deceased. Education wise, you have been up to grade 10 education after which you went to Goroka Technical College and graduated as a motor mechanic. You have been employed by OTML since 2001 as a licensed officer for the South Fly area of the Western Province.

16. In addition to your personal antecedents, your lawyer urged the Court to note in your mitigation and I so do that firstly, 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.

17. Secondly, your lawyer submitted and I note in your favour that, you pleaded guilty to the commission of the offence. 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. Again, this factor, in most cases, allows for some reduction or leniency toward an offender. You will be accorded the benefit this brings you.

18. Thirdly, I note, that apart from the psychological pain and trauma you might have caused the victim by your sexual violation of her, you have not inflicted any physical injury to her. Usually, where a victim of a sexual offence suffers physical injuries or contracts a sexually transmitted decease or becomes pregnant as a result of the sexual attack on her, the law would deal with an offender severely. This will not apply in your case.

19. Fourthly, I note that you have said sorry for committing the offence and apologized to the victim, her parents and relatives and the whole community of Sialowa. I note particularly that you did this in Court and in the presence of the community of Sialowa. I contrast your case to one in which an offender says sorry in Court to the exclusion of the victim and his or her relatives and the community. This I further note, follows your own earlier initiatives of organizing and paying compensation of K200 which is the amount you were able to afford at the time. You intended to pay more but your employer terminated you. Thus, you were not able to make additional payments.

20. Finally, I accept your lawyer’s submission that, you did not plan to commit this offence. You acted on the spare of the moment or when the opportunity presented itself and did commit the offence with the consent and approval of the victim as opposed to forcing yourself against the victim. Unfortunately, the victim was in no position to give you a well informed and understood consent by reason of her age. Consent is no excuse or an element for the offence you have been charged with and the Court found you guilty of committing this offence on your guilty plea. Consent does not in fact matter. What does matter is the age of the victim and sexual penetration of a victim.

21. Turning then onto the factors against you, which the State urged the Court to take into account, I firstly note that, you committed an offence that is prevalent as the above discussion of the offence and sentencing trend and tariffs demonstrates. That is why, again as the foregoing will demonstrate, Parliament at the highest level of authority, increased penalties. Sentences for these kinds of offences have thus increased to as high as 22 years.

22. Secondly, I note that the victim was much younger than you. There was a huge age difference of 32 years. You were therefore in a position to know that, what you went about doing against the victim in the way you did was wrong. You being a father and a grand father and being well educated compared to an average villager, you were in a position to appreciate that what you set out to do was wrong but you did regardless. I wonder whether you would have appreciated if some other man violated one of your own daughters or grand children in the way you violated the victim in this case.

23. Finally, I note that, you held at the time of committing the offence a responsible position here in Sialowa. Even though you were employed by a private company, namely OTML, you were in a position to influence the people in the community in which you worked and lived in. I am sure the community of Sialowa did not expect you to commit the kind of offence you committed let alone the way in which you committed and against the particular victim you chose. People in responsible positions, from the family unit, to village, community and the various corporate levels now need to think and promote only positive attributes for a better Papua New Guinea. After all the better of our country depends not only on the government and its agencies but also corporate citizens and their employees. A person who is in a position to promote positive attributes but fails to do so by committing any offence ought to be dealt with more sternly than one committing an offence but is in no position of influence in any of the units I have mentioned already.

24. Weighing the factors for and against you, as well as your family and personal backgrounds, 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 does not come any where closer to the case of The State v. Peter Lare,[5] or even the decision I handed down yesterday, in the case of The State v. Manewa Suliga.[6] Obviously, the Peter Lare case is beyond comparison with yours. As for the Manewa Suliga case, I note that unlike the prisoner in that case, you paid compensation and were willing to pay more but for not being employed, your sexual penetration of the victim was consensual and not rape, you do not come from the same community or village as the victim although you worked and lived in the same area. Hence, your sentence has to be lower than the sentence imposed against Manewa Sulinga.

25. I am of the view that, your case is a bit closer to the case of The State v. Eddie Trosty.[7] Taking into account the particular facts in that case and those in your case, I am of the view that, your sentence should also be around 6 years as in that case. In that case, there was consensual sexual intercourse between a boyfriend and a girlfriend, where the age difference was only 6 years between two young or unmarried people. In your case, you were much advanced in age having your own children and grand children. This factor evens out any advantage you might have secured over that case, by your genuine expression of remorse and having paid compensation. I am also mindful of the fact that, less serious offences such as sexual touching are now attracting sentences around 3 to 7 years as I demonstrated in the decision I handed down in Tabubil in the case of The State v. Wasa David Marifa CR 84 of 2008- N3308, decision delivered on 11/03/08. This means sentences for the serious offence of actual sexual penetration have to be above those imposed for the lesser offences.

26. Considering all of the foregoing, I am of the view that a sentence of 6 years is appropriate and I impose that sentence against you. Out of that 6 years I order a deduction of the period of 4 months, 2 weeks and 1 day, you have already spent in custody waiting for your trial and sentence. That will leave you with a balance of 5 years, 7 months and 1 week 6 days yet to serve. I order that you serve that time in hard labour at the Ningerum Correction Services. A warrant of commitment will issue forthwith in those terms.

___________________________

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

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^[1] CR 82 of 2008.
^[2] (10/09/04) N2681.
^[3] (20/05/04) N2557.
^[4] (25/05/05) N2844.
^[5] Supra note 3.
^[6] Supra note 1.
^[7] Supra note 2.