State v Okupa [2009] PGNC 117; N3726 (18 August 2009)

N3726

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 128 0F 2005

THE STATE

V

JOHN OKUPA

Buka: Cannings J
2009: 12, 14, 18 August

SENTENCE

CRIMINAL LAW – sentence – engaging in act of sexual penetration with a child under the age of 16 years, Criminal Code, Section 229A – male offender aged 41 years at time of offence, female victim, aged 15 years and 9 months – guilty plea – sentence of 8 years.

The offender pleaded guilty to one count of engaging in an act of sexual penetration with a girl aged 15 years. There was no aggravated physical violence.

Held:

(1) The starting point for sentencing for this offence (which carries a maximum penalty, given the age of the child, of 25 years imprisonment) is 10 years imprisonment.

(2) Mitigating factors: no weapon or aggravated violence used against the victim; the victim was not far under the age of 16 years; no physical injury to the victim; compensation has been paid and there has been reconciliation between the offender and the victim; the offender has caused no further trouble; he pleaded guilty; he is a first-time offender.

(3) Aggravating factors are: large age gap (26 years) between the offender and the victim; penile penetration.

(4) A sentence of eight years was imposed. The pre-sentence period in custody was deducted and two years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Biason Benson Samson (2005) N2799
The State v Charles Rome CR No 502/2007, 13.07.07
The State v David Kisiluvi Buso CR No 310 of 2003, 17.02.09
The State v Francis Guandi Borie CR No 289/2007
The State v George Taunde (2005) N2807
The State v Ian Unawing CR No 392/2005, 19.08.05
The State v John Ritsi Kutetoa (2005) N2814
The State v Johnson Roman CR No 1924/2005, 23.03.07
The State v Kagewa Tanang (2005) N2941
The State v Paul Gule CR No 686/2006, 24.08.07
The State v Sawan Raumo CR No 876/2007
The State v Willie Dominic (2005) N2938

Abbreviations

The following abbreviations appear in the judgment:

CR – Criminal Register
J – Justice
Ltd – Limited
N – National Court judgment
No – number
OK – okay
SC – Supreme Court judgment
v – versus

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

F Popeu, for the State
P Kaluwin, for the offender

18 August, 2009

1. CANNINGS J: This is the sentence for a 46-year-old Siwai man, John Okupa, who has pleaded guilty to one count of engaging in an act of sexual penetration with a child under the age of 16 years, a 15-year-old girl. The offence was committed at 8.00 am on 1 January 2004 at Sikurai village. The victim had been sent by her parents to the garden to get watermelon. The offender followed her, grabbed her, removed her clothes and his clothes, and sexually penetrated her by inserting his penis into her vagina.

2. A conviction has been entered under Section 229A(1) of the Criminal Code.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court. He said:

I say sorry for what I have done. I ask the Court to have mercy on me. This is my first time to commit such an offence. I have reconciled with the victim through our local custom. I have paid her K100.00 cash and two lots of shell money. There are no longer any differences between us. We are living together harmoniously. I ask the court for mercy and probation. I promise to abide by whatever conditions the court imposes.

OTHER MATTERS OF FACT

5. 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 (2006) SC890).

6. Two matters are significant. First, he made admissions when he was interviewed by the police in May 2004. Secondly, his claim that he had reconciled with the victim and her family was not challenged.

PRE-SENTENCE REPORT

7. John Okupa is 46 years old. He resides in his village, Sikurai, with his wife of 33 years and three children and his mother. Family relationships are stable and all family members are dependent on him. He says that his wife is sick but no verification of this was available. He has a grade 6 education. He was employed by Bougainville Copper Ltd for five years. His source of income is the sale of wet cocoa beans (he has three cocoa blocks) and pigs. His health is OK. He is an active member of the United Church.

8. The report concludes that he is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Kaluwin submitted that the court should put considerable weight on the guilty plea and the fact that the offender made early admissions. Also he is not a young man and there are many people dependent on him for their well being. A sentence of six years, partially suspended, would be sufficient, Mr Kaluwin submitted.

SUBMISSIONS BY THE STATE

10. Mr Popeu acknowledged that the guilty plea and the offender’s lack of prior convictions were mitigating factors but stressed that this is a prevalent offence in Bougainville and a deterrent penalty is required. A custodial sentence of six to ten years is required, he submitted.

DECISION MAKING PROCESS

11. 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?

12. 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.

13. 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?

14. 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 SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

15. Examples of sentences I have imposed are shown in the table below.

TABLE 1: SENTENCES FOR ENGAGING IN
SEXUAL PENETRATION WITH A CHILD UNDER 16

No	Case	Details	Sentence
1	The State v Biason Benson Samson (2005) N2799, Kimbe	Guilty plea – offender aged 17 at time of offence – victim, a girl, aged 13 – lack of consent – no aggravated physical violence – offender cooperated with police.	5 years
2	The State v George Taunde (2005) N2807, Buka	Guilty plea – offender aged 33 at time of offence – victim, a girl, aged 13 – uncle/niece relationship – lack of consent.	10 years
3	The State v John Ritsi Kutetoa (2005) N2814, Buka	Guilty plea – offender aged 39 at time of offence – victim a girl, aged 10 – stepfather/stepdaughter relationship – lack of consent – physical injury caused to child.	17 years
4	The State v Willie Dominic (2005) N2938, Madang	Guilty plea – offender aged 17 at time of offence – victim, a girl, aged 14 – no compensation attempted.	4 years
5	The State v Ian Unawing CR No 392/2005, 19.08.05, Bialla	Guilty plea – offender aged 26 at time of offence – victim, a girl, aged 13 – offender cooperated with police – no compensation attempted.	8 years
6	The State v Johnson Roman CR No 1924/2005, 23.03.07, Kimbe	Guilty plea – offender aged 30 at time of offence – victim, a girl, aged 15 – no aggravated physical violence – no compensation attempted.	5 years
7	The State v Charles Rome CR No 502/2007, 13.07.07, Kimbe	Guilty plea – offender aged 31 – victim, a boy, aged 10 – no aggravated violence – relationship of trust – no compensation attempted.	12 years
8	The State v Paul Gule CR No 686/2006, 24.08.07, Kimbe	Guilty plea – offender aged 60 – victim, a girl, aged 11 – no aggravated violence – no compensation attempted.	8 years
9	The State v Sawan Raumo CR No 876/2007, 18.09.07, Buka	Guilty plea – offender aged 25 – victim, a girl, aged 6 – no aggravated violence – digital penetration – no compensation attempted.	10 years
10	The State v Francis Guandi Borie CR No 289/2007, 16.10.07, Madang	Guilty plea – offender aged 35 – victim, a girl, aged 11 – no aggravated violence – penile penetration – no compensation attempted.	10 years
11	The State v David Kisiluvi Buso CR No 310 of 2003, 17.02.09, Kimbe	Guilty plea – offender aged 15 at time of offence, aged 22 at time of sentence – victim a five year old girl – penile penetration.	7 years

STEP 4: WHAT IS THE HEAD SENTENCE?

17. The head sentence will reflect the following mitigating and aggravating factors.

Mitigating factors:

- no weapon or aggravated violence used against the victim;

- the victim was not far under the age of 16 years;

- no physical injury to the victim;

- compensation has been paid and there has been reconciliation between the offender and the victim;

- the offender has caused no further trouble;

- he pleaded guilty;

- he is a first-time offender;

- offender has expressed remorse.

Aggravating factors are:

- large age gap (26 years) between the offender and the victim;

- penile penetration.

18. There are more mitigating factors than aggravating factors so a sentence below the starting point (12 years) is warranted. I regard this case as less serious than the three Buka cases referred to earlier. I agree with the prosecutor’s submission that a sentence between six and ten years is warranted. I fix a head sentence of eight years.

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

19. 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 eight months.

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

20. The pre-sentence report is reasonably favourable and warrants a partial suspension. It would not be appropriate to suspend the whole sentence. As Mr Popeu submitted this sort of offence is prevalent on Bougainville and a deterrent sentence is required. I will suspend three years of the sentence on the following conditions:

(a) must not be released from custody without an order of the National Court;

(b) must reside at Sikurai or some other place nominated by the National Court and nowhere else except with the written approval of the National Court;

(c) must not leave Bougainville without the written approval of the National Court;

(d) must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(e) must attend a church to be approved by the National Court every week for service and worship and assist the church in its community activities;

(f) must report to the senior Probation Officer at Buka every six months;

(g) must not consume alcohol or drugs;

(h) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim’s family;

(i) must have a satisfactory probation report submitted to the National Court Registry at Buka every six months after the date of sentence;

(j) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

21. John Okupa, having been convicted of one count 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	8 years
Pre-sentence period to be deducted	8 months
Resultant length of sentence to be served	7 years, 4 months
Amount of sentence suspended	3 years
Time to be served in custody	4 years, 4 months
Place of custody	Buka Police Lock-Up, from where he must be transferred within 30 days after the date of sentence to Kerevat Correctional Institution

Sentenced accordingly.

__________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender