State v Melly (No 2) [2009] PGNC 138; N3779 (22 July 2009)

N3779

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1122 OF 2007

THE STATE

V

SIMAM JULY MELLY

(No 2)

Kokopo: Makail J,
2009: 15th & 22nd July

CRIMINAL LAW - Sentence - Sexual penetration - Girl under age of 16 - Finding of guilty after trial - Mitigating and aggravating factors considered - Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 - Section 229A(1) - Criminal Code - Section 19.

Cases cited:

The State -v- Simam July Melly (No 1): CR No 1122 of 2007 (Unnumbered & Unreported Judgment of 13th July 2009)
The State -v- Eddie Trosty (2004) N2681
The State -v- Penias Mokei (No 2) (2004) N2635
The State -v- Kukubur Walia: CR No 883 of 2006 (Unnumbered & Unreported Judgment of 17th March 2009)
The State -v- Tonny Kupin: CR No 475 of 2009 (Unnumbered & Unreported Judgment of 22nd May 2009)

Counsel:

Ms S Luben, for the State
Ms J Ainui, for the Offender

22 July, 2009

SENTENCE

1. MAKAIL J: The offender was found guilty by the Court on 13th July 2009 of one count of sexual penetration of a female child under the age of 16 by the name of Dorcas Kosma (the "victim") between 16th October 2006 and April 2007 at Tavui No 1 village in Rabaul, East New Britain Province contrary to section 229A(1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (the "Criminal Code as amended"). This section states:

"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) ...................."

BRIEF FACTS

2. The full findings of the Court in relation to how he was found guilty of the offence are found in the Court’s judgment, The State -v- Simam July Melly (No 1) (2009) N3772. But the facts in brief are that the accused and the victim are from Tavui No 1 village in Rabaul of the East New Britain Province. Both reside at Tavui No 1 village. On the afternoon of 16th October 2006, the victim returned from a village feast when the offender approached her and asked her to follow him to the beach which she did. At the beach, the offender removed her clothes and told her to lie on the ground which she did and he sexually penetrated her by inserting or intruding his penis into her vagina. After that, the offender told her not to tell anyone of the incident and the victim got dressed and returned to her house. At that time the offender sexually penetrated the victim, she was less than 16 years. She was 15 years old at that time.

3. The sexual relationship between the offender and the victim continued secretly until the wife of the accused became suspicion of the victim and offender when she found them with another person called Noel at the beach one time and reported the victim to her step mother. Her step mother reported the matter to her father and upon further inquiries by the father, she revealed or admitted the sexual relationship between her and the offender to him. The offender was arrested and charged accordingly. Since their sexual relationship was discovered in 2007, the victim has left school at 7th grade.

REASONS FOR DECISION

4. The offence of sexual penetration of a child under the age of 16 carries a maximum penalty of 25 years imprisonment and the offender must be warned that this is the number of years he may be facing in prison. He must be also reminded that the maximum penalty of 25 years imprisonment is a symbol of how serious Parliament views this offence and has bestowed upon the Courts, the power to punish severely people who commit sexual offences against children.

5. There can be no argument that sexual offences against children is increasing at an alarming rate. We cannot deny it because one only has to look at the National Court lists of pending cases and also the dealt with cases around the country to confirm this proposition. It is a very sad story for Kokopo National Court because it seems that most of the sexual offences decided by the National Court have come from here. It is regrettable that this case will be added to the already long list of cases that the Kokopo National Court has dealt with in the past. To my mind, it just shows that no matter how swiftly and actively the National Court is combating sexual offences in this province, nothing much has changed.

6. It seems to me that people are either not afraid to commit these offences and face the full force of the law or are simply driven by their sexual desires to commit these offences. Whatever the reason is, at the end of the day, it is the children who suffer at the hands of such predators. The Criminal Code as amended was passed by Parliament with the aim of eliminating child abuse and exploitation and protecting them from predators. Therefore, it is my view that the Courts, especially the National Court being the trial Court, is given an enormous responsibility to ensure that child abuse and exploitation is eliminated and children are protected from predators.

7. This means that perpetrators of these offences must be severely punished so that a strong message is sent out to the community that the Court will do everything within its power to punish those committing these offences against children. Further, it will be a lesson to the perpetrators so that they too will change their way of behaving and thinking.

8. This present case is aggravated by a number of matters. First, the offender denied committing the offence. This caused the Court to conduct a trial, which ran for a day. The State was put to task to prove the charge against the offender. It costs the State to bring in the witnesses including the victim to testify before the Court. The victim had no choice but to come to Court and testify against the offender. No doubt, she would have relived the bad experience when testifying before the Court. From my observation of her during her testimony, I must say that she was very brave to come to Court and testify against the offender. Whilst it is acknowledged that the offender has a right to be presumed innocent until proven guilty by the Court which I take into account in this case, when I weigh it with the State’s burden of proving the charge against him including the victim’s reliving of the bad experience when testifying against the offender, the offender’s presumption of innocence is rendered insignificant.

9. Secondly, the prevalence of sexual offences makes this case serious. I have alluded to the prevalence of sexual offences earlier and I will be repeating myself but it is worth repeating it here, because the offender must be told in no uncertain terms that his case is not an isolated one. I am sure he is aware that it is an offence to sexually penetrate a girl under the age of 16 and people who have committed this offence have been sentenced to prison. Yet he went ahead and committed the same offence. When I hold this aggravating feature against his plea for leniency, his plea for leniency makes very little difference.

10. Thirdly, the sexual relationship continued between the offender and the victim over a period of time where nobody, not even the wife of the offender, step mother and father of the victim knew until the offender’s wife became suspicious about the offender and the victim when she discovered them with a person called Noel at the beach one time and reported the victim to her step mother. The step mother reported the matter to the victim’s father and upon further inquiries by the father, the victim revealed or admitted the sexual relationship between her and the offender to him.

11. In my view, it was a secret affair. The offender is a married man and has two children. He should be ashamed of himself for going behind his wife’s back and committing adultery. He should be ashamed also for committing this offence behind his children’s back. Further, in my view, he should have thought about his wife and children before allowing his sexual desire to have the better of him. I think it is a little too late for him to ask for leniency and ask for probation.

12. I also think it is a little too late for him to ask the Court to be merciful on him as he has 3 brothers and 4 sisters to also look after since his father is dead and his mother is the only one alive to take care of them. He should have thought of them before embarking on this self destructive journey. Further, I take into account that he is a first offender. He has never been in trouble with the law before. When I compare his past crime free track record with the nature of the offence itself, I consider that the offence is a very serious one as it is committed against a young innocent child whose life and future is now completely ruined not only because she has stopped going to school but will live with the emotional and psychological scar of being a victim of sexual abuse for the rest of her life. In my view, no amount of remorse and compensation will heal this child.

13. And whilst I accept that there were no weapons and physical violence used by the offender to procure the commission of the offence, I must remind him also that it was him who instigated the move that day when he approached the victim after she had returned from a village feast to follow him to the beach which she did. To my mind, there was an element of inducement on the part of the offender to procure the commission of the offence. Otherwise, the victim would not have followed him to the beach. Thus, his plea for leniency on the grounds of no weapons and physical violence being used against the victim has very little impact in respect of reducing the seriousness of the offence.

14. But I accept that there is no existing relationship of trust, authority or dependency between the victim and the offender in this case. This means that section 229A(3) of the Criminal Code as amended does not apply in this case. Nonetheless the offender is still faced with a sentence of up to 25 years imprisonment under section 229A(1) of the Criminal Code as amended and he must be warned of this. At the same time, I take into account that it was a consensual act of sexual penetration after the offender lured the victim to the beach on that day. That is why the Medical Report by Dr John Maku dated 29th May 2007 (Exhibit "P4") states in part that, "There were no obvious injuries in the valva or vagina. The hymen was no longer intact. Examination of a vaginal swab did not reveal any sperm cells. Opinion: the un-intact hymen may have resulted from sexual intercourse in the past".
As I have found in the verdict, there were other occasions where the offender sexually penetrated the victim because the Medical Report, (Exhibit "P4") suggested that the un-intact hymen may have resulted from sexual intercourse in the past. But I will not hold this against the offender because he has been charged and found guilty of one count of sexual penetration and I must take this as the only offence he has committed for now. But I think I can take into account other occasions where the offender sexually penetrated the victim to demonstrate that they had consensual sex.

15. I also take note of the offender’s counsel’s submissions that a sentence of 5 years imprisonment be imposed with partial suspension and deduction of time spent in pretrial custody and that the offender be ordered to pay compensation to the victim and her line to restore peace and harmony between the two lines. She submitted compensation maybe in the form of traditional shell money known as "tabu", cash and kind.

16. I must say that suspension of the sentence either wholly or in part is inappropriate in the circumstances of this case. This is because this case is not entirely the same as the case of The State -v- Eddie Trosty (2004) N2681. In that case, Kandakasi J, sentenced the offender to 6 years imprisonment after he pleaded guilty to one count of sexual penetration of a child under the age of 16. The offender was 21 years old at the time of the offence and the victim was 15 years old. The victim was the offender’s girlfriend and it was a consensual sex with no physical violence involved. There was a pattern of persistent consensual sex and the offender cooperated with the police by admitting to the commission of the offence, apart from being a first offender.

17. In The State -v- Penias Mokei (No 2) (2004) N2635, Cannings J, sentenced the offender to 15 years imprisonment after he was found guilty of one count of sexual penetration of a child under the age of 13. The offender was 33 years and the victim was 13 years old. There was no consent but there was no physical violence and it was an isolated incident. The offender was a first offender and cooperated with the police during the investigation. The offence was aggravated by a breach of an existing relationship of trust and no compensation was paid to the victim.

18. In The State -v- Kukubur Walia: CR No 883 of 2006 (Unnumbered & Unreported Judgment of 17th March 2009), the offender pleaded guilty to two counts of sexual penetration of a child under the age of 16. There was no age disparity and some compensation was made to the victim. Lenalia J, sentenced the offender to 8 years imprisonment for the first count and 6 years imprisonment for the second count to be served concurrently at the head sentence of 8 years imprisonment. His Honour suspended 5 years of the sentence with conditions.

19. In my own recent judgment of The State -v- Tonny Kupin: CR No 475 of 2009 (Unnumbered & Unreported Judgment of 22nd May 2009) at Wabag, I sentenced the offender to 10 years imprisonment on his guilty plea to one count of sexual penetration of a child under the age of 12. He was 50 years old and the victim was only 9 years old hence, there was big age disparity. One factual matter that is different in that case from the present case is that the victim was under the age of 12 whilst the victim in this case is under the age of 16, hence the charges laid against the offenders in each case are different.

20. In weighing all the mitigating factors against the aggravating factors, I find that the aggravating factors outweigh the mitigating factors in the present case and the sentence I am going to impose will be above 5 years imprisonment by exercising the Court’s discretionary power under section 19 of the Criminal Code. In the circumstances, I consider that a sentence of 8 years imprisonment as suggested by the State appropriate. I will not suspend the sentence either wholly or in part because there are no convincing reasons to do so. But in addition to the sentence of 8 years imprisonment, I will order the offender to pay compensation of K1,000.00 to the victim in accordance with section 2 of the Criminal Law (Compensation) Act 1991. That means that I do not consider it appropriate that I should make an order for compensation under section 4 of the Criminal Law (Compensation) Act 1991 because there is no means assessment report presented to support a submission of the offender for compensation under that section.

ORDERS

21. The offender is sentenced to 8 years imprisonment in hard labour but I deduct 2 years for time spent in pretrial custody, thereby leaving a balance of 6 years to be served at Kerevat CIS. I further order that the offender shall pay K1,000.00 compensation to the victim within 1 month from today as a form of punishment under section 2 of the Criminal Law (Compensation) Act 1991. A warrant of commitment in the above terms will be issued shortly.

Sentence accordingly.

_____________________________________

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender