State v Kawage [2009] PGNC 87; N3696 (10 June 2009)

N3696

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 812 OF 2008

THE STATE

V

BROWN KAWAGE
Prisoner

Kundiawa: David, J
2009: 04th & 10th June

CRIMINAL LAW – Indictable offence – Criminal Code, Division IV.2A. Sexual Offences Against Children – S.229A, engaging in act of sexual penetration with a child under the age of 16 years – sentence on plea of guilty – prisoner aged 24 years, child aged 14 years – penetration of vagina with penis - lack of consent – isolated incident - existing relationship of trust, authority or dependency - victim prisoner’s niece – victim sleeping in prisoner’s house - aggravated physical violence – confinement before and after incident – wife chased away - premeditation inferred – trouble caused with victim and relatives since incident - cooperated with police by making early admissions – some compensation paid- expression of remorse genuine – prior conviction for stealing of ballot papers given no weight – effectively first offender - sentence of 14 years IHL.

Cases cited:

James Mora Meaoa v. The State [1996] PNGLR 280
Lawrence Hindemba v. The State (1998) SC593
The State v. Eddie Peter (No 2) (2001) N2297
The State v. Damien Mangawi (2003) N2419
The State v. Ben Simakot Simbu (No.2) (2004) N2546
The State v. Junior Apen Sibu (No.2) (2004) N2567.
The State v. Pennias Mokei (No 2) (2004) N2635
The State v. Ezra Hiviki (2004) N2548
The State v. Peter Lare (2004) N2557,
The State v. Eddie Trosty (2004) N2681
The State v. Kemai Lumou (2004) N2684
The State v. John Ritsi Kutetoa (2005) N2814
The State v. Thomas Angup (2005) N2830
The State v. Stanely Sabiu, (2005) CR No. 1832 of 2005, Unreported Judgment delivered on 21 December 2005
The State v. Kaminiel Okole (2006) N3052
The State v. Tiama Esrom (2006) N3054
The State v. Siro Waida (2008) N3311

Counsel:

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

DECISION ON SENTENCE

10 June, 2009

1. DAVID, J: INTRODUCTION: On Thursday, 4th June 2009, the State charged the Prisoner on indictment with one count of sexual penetration of a child under the age of sixteen (16) years pursuant to s.229A (1) of the Criminal Code as amended.

2. Several circumstances of aggravation were pleaded in the indictment. The State alleged that; the victim was then in a relationship of trust with the Prisoner; immediately before the commission of the offence, the Prisoner assaulted the victim; and that the Prisoner confined the victim before and after the commission of the offence.

3. I gave a brief judgment undertaking to give my detailed reasons later. This I now do.

BRIEF FACTS PRESENTED BY THE STATE

4. The brief facts put to the Prisoner on arraignment were these.

5. At the material time, the victim was aged fourteen (14) years old.

6. The Prisoner was related to the victim as an uncle. They are both from Mondia village.

7. Up until 26th June 2005, the victim and the Prisoner’s wife usually went around together and slept in one house. The house belonged to the Prisoner and his wife.

8. On 26th June 2005, sometime in the afternoon at about 6:00 pm or thereabouts, the Prisoner’s wife and the victim returned after being away for a couple of days and were in the house together with the Prisoner. He then left them for sometime to attend to some business. When he returned, he picked an argument with his wife. This led to the Prisoner attempting to assault his wife and chased her away. When he returned, he locked the door of the house. By that time, the victim had already gone to sleep.

9. In the middle of the night between 10:00 pm and 11:00 pm, the Prisoner went over to where the victim was sleeping and tried to take her clothes off and also attempted to sexually penetrate her. However, when the victim shouted, the Prisoner punched her on her face and covered her month preventing her from calling out for help. Because the victim was scared for her personal safety, the Prisoner took her clothes off and sexually penetrated her. After the Prisoner finished, he went to bed.

10. The victim could not escape because the door was locked and the key kept away. Next morning, the victim discovered that the key was attached to the lock. She was then able to escape and report the matter to relatives.

11. The victim received serious injuries to her vaginal area and suffered trauma as a result of the Prisoner sexually penetrating her.

GUILTY PLEA AND CONVICTION

12. Upon arraignment, the Prisoner pleaded guilty to the charge. Mr. Kapi of counsel for the Prisoner entered his appearance and informed the Court that he had no application to make in relation to the plea because it was consistent with his instructions. I then recorded a provisional guilty plea subject to my reading of the District Court Committal depositions. State Prosecutor, Mr. Waine of Counsel for the State then formally tendered the depositions which I read. I was satisfied that the evidence contained in the depositions supported the charge and therefore accepted the Prisoner’s guilty plea and convicted him of the charge.

EVIDENCE

13. The Record of Interview conducted between Detective First Constable Dokta Turumb and the Prisoner on 2nd August 2005 at the Kerowagi Police Station (the Record of Interview) which was attended by Senior Constable James Pohien as corroborator contains admissions by the Prisoner to committing the crime on Sunday, 26th June 2005 as alleged by the State in the brief facts. The Prisoner admits to; locking the victim in the house after she had been called into the house at about 06:00 pm; chasing his wife, Penny away after that; returning and assaulting the victim and covering her mouth with his hands; having sexual intercourse with the victim against her will which occurred at about 10:00 pm; and letting the victim out of the house at about 06:00 o’clock in the morning the next day.

14. In the Record of Interview, the Prisoner also admits assaulting the victim’s grandfather and his brother that day when they went to enquire with the Prisoner about the incident; and of assaulting the victim one (1) week later with a bush knife.

15. In the victim’s Affidavit sworn on 4th October 2005; she corroborates the admissions made by the Prisoner about the incident which occurred during the night after 06.00 pm on 26th June 2005; that she was aged fourteen (14) years; that she usually slept at the Prisoner’s house; and that the Prisoner was her uncle.

16. In the Affidavit of Eripui Degba sworn on 4th October 2005, he deposes that:-

- he was awakened by the victim early in the morning on Monday, 27th June 2005 at about 06:00 am and she told him about the incident.

- he then left his house, went and told his elder brother about the incident and they both went to the Prisoner’s house to enquire about the incident.

- at the Prisoner’s house, he assaulted both of them badly using a coffee stick and an axe. He sustained injuries to one of his arms while his brother sustained a cut on his face and a swollen back.

- The Prisoner was the victim’s uncle.

17. The Medical Report dated 8th August 2005 issued by Alua Bre of the Kerowagi District Health Services (the Medical Report) confirms that the victim attended the Kerowagi Health Centre on 27th June 2005 at about 03.00 pm complaining about being raped at about 10.00 pm on Sunday, 26th June 2005 and was given treatment. A vaginal examination was conducted which showed bleeding from the perineum caused by the tearing of the fourchette and bruising of the cervix. A swab taken for sperm count proved negative which was due to the delay in reporting the matter, but bacteria causing gonorrhea were discovered.

SETTLEMENT ORDER

18. Settlement Order No.A13572 dated 10th July 2005 (the Settlement Order) was tendered by consent. It was issued by the Dagle Mitna Village Court when it sat at Kewamugl. The terms of settlement were recorded in Tok Pisin and read as follows:-

"Long ai bilong Dagle Mitna Villis Kot, Brown Kawage I bin orait long olgeta kompensesen kot ibin makim long en. Brown Kawage kompensesenim K300.00 plas wanpela bikpela pik value K1,000.00. na olgeta lidas na komuniti I witnessim Irpui Degemba (Komplainent) i wanbel na kisim dispela kompensesen." (sic)

ANTECEDENTS

19. According to the undated Antecedent Report, the Prisoner has a prior conviction. It reports that the Prisoner was convicted by the District Court in 1997 for stealing ballot papers and was convicted and sentenced to two (2) months imprisonment.

20. Other details contained in the report are that; the Prisoner is aged twenty three (23) years; he was born at Mondia in the Kerowagi District of Simbu Province and that is where he has resided since birth; his parents have lived in Mondia for the rest of their lives; he has been baptised into the Lutheran faith; he has received formal Grade 6 education; and that he was married to one Penny aged twenty (20) years and have no children.

ALLOCATUS

21. The Prisoner expressed remorse and then proceeded to ask the Court to take into account in his favour that; he was a young offender at the time; he was married and had children; he will not re-offend; he paid compensation to solve the problem between the victim and himself which is confirmed by the Settlement Order; he was arrested and placed in custody despite the settlement; his father had died and he was staying with his mother; he was the second born out of four (4) siblings which included a sister and two (2) brothers; and that because life was hard now, everyone was concerned more about the welfare of their own families than others and therefore he was concerned about his family having no one to look after them.

SUBMISSIONS FOR THE PRISONER

22. Mr. Kapi recounted the Prisoner’s antecedents and proceeded to make submissions in mitigation and on penalty.

23. Apart from what has already been stated above under the headings Antecedents and Allocatus and for the sake of certainty, counsel submitted that from instructions, the Prisoner’s other antecedents were that; he is aged thirty (30) years; he has two (2) children; his father was alive and his mother is deceased; he has a brother and two (2) sisters and he was the second born; he has received formal Grade 6 education; he has no formal employment; and that he has been in custody since being arrested.

24. Counsel submitted that the matters that should be taken into account in mitigation are that; the Prisoner pleaded guilty; the prior conviction reported in the Antecedent Report was dissimilar to this offence therefore less weight should be attached to it; the Prisoner expressed remorse; the Prisoner cooperated with police investigations which is supported by the admissions he made; and that the Prisoner paid compensation which is confirmed by the Settlement Order.

25. As to penalty, counsel submitted that sentence should be considered under s.229A (1) which prescribed a maximum penalty of twenty five (25) years imprisonment. This was because the State did not rely on the circumstances of aggravation referred to under sub-section (3) of that provision. Counsel therefore urged the Court, in the exercise of its general discretion under s.19 of the Code, to impose a sentence of between thirteen (13) to fifteen (15) years imprisonment.

26. Counsel referred to several cases for the Court to consider in deciding an appropriate sentence for the Prisoner. These are; The State v. Damien Mangawi (2003) N2419; The State v. Pennias Mokei (No 2) (2004) N2635; The State v. Ben Simakot Simbu (No.2) (2004) N2546; and The State v. Junior Apen Sibu (No.2) (2004) N2567.

27. In Damien Mangawi, Justice Kandakasi imposed a sentence of twelve (12) years IHL on a guilty plea by a first time offender. The prisoner was charged under the old s.213 of the Code which created the offence and prescribed the penalty for unlawful carnal knowledge of a girl under the age of twelve (12) years. The maximum penalty subject to s.19 was imprisonment for life as is the case under s.229A (2). There, the victim was aged three (3) years and the prisoner aged sixteen (16) years. The prisoner was the paternal uncle of the victim. The prisoner forcefully had sexual intercourse with her after taking her away from the village in a breach of trust situation. The victim had difficulties urinating due to injuries to her vagina. The prisoner expressed no remorse.

28. In Pennias Mokei (No.2), the prisoner was aged about thirty three (33) years charged with one count of sexual penetration of a child under the age of sixteen (16) years pursuant to s.229A (1) of the Code. The child was a girl aged a little over thirteen (13) years. The prisoner was the victim’s uncle. The factors that favoured the prisoner were: that he was a first offender; that there was no aggravated violence; that this was an isolated incident; and that he had not caused more trouble for the victim or her family since committing the offence. The factors that weighed against the prisoner were; that he did not plead guilty; that the child did not consent; and that there was a very serious betrayal of trust. The Court sentenced the prisoner to fifteen (15) years imprisonment IHL.

29. Ben Simakot Simbu (No.2) has no relevance to the offence under consideration, but since it has been cited by counsel, I will briefly discuss it. In that case, Justice Kandakasi, found the prisoner guilty on two (2) charges of wilful murder after a trial. The victims were a married woman and a child aged two (2) years. His Honour, in considering that the offences committed fell in the worst category of the offence of wilful murder, sentenced the prisoner to death on both charges. There, the prisoner went to the victims’ block and requested to get a live chicken on credit so that he could pay for it later when he found money. The adult victim refused and the prisoner repeated his request the second and third time. On the third time, when the adult victim again refused, the prisoner grabbed her and forced her down to the ground and forcefully had sexual intercourse with her. After having sex with her, the prisoner got an old, but still strong piece of iron and hit her across her head as she lay on the ground causing instant death. He used the same piece of iron to hit the child on its head who was by then crying and watching helplessly. The child died instantly as well.

30. In Junior Apen Sibu (No.2), the prisoner was convicted of the rape of a girl aged ten (10) years contrary to s.347 (1) of the Code after a trial. The prisoner; was aged sixteen (16) years, single and unemployed; was a first time young offender; did not use any offensive weapons to commit the offence. The victim did not suffer any physical injuries although her hymen was ruptured. Factors going against the prisoner were; rape was a violent offence against females both young and old; the offence was prevalent; the offence was against a small girl with an age difference ten (10) years; it was a breach of trust situation because the prisoner was related to her as an uncle; and he expressed no remorse. The prisoner was sentenced to thirteen (13) years imprisonment IHL.

SUBMISSIONS FOR THE STATE

31. Mr. Waine submitted that the aggravating factors in the present case were quite severe. These were; that it was evident from the medical report that bacteria for the venereal disease gonorrhea were detected; that the victim was aged fourteen (14) years at the time and will be traumatised for the rest of her life because of the incident; that the victim suffered injuries to her vaginal area; there was a significant age difference of ten (10) years between the prisoner who was twenty (24) years and the victim fourteen (14) years; some premeditation was involved which could be inferred from the conduct of the Prisoner in chasing away his wife; and this was a breach of trust situation which was a serious matter.

32. Whilst compensation may have been paid, it was minimal and was no reflection of the injuries sustained by the victim, counsel submitted.

33. Counsel referred to James Mora Meaoa v. The State [1996] PNGLR 280 and The State v. Eddie Peter (No 2) (2001) N2297 to support the proposition that while a breach of a position of trust is an aggravating factor it is also a serious matter that warrants the imposition of stiffer penalties.

34. In James Mora Meaoa, the appellant was operating a dinghy and the victim, aged twelve (12) years was one of his passengers. The boat capsized and the victim who could not swim was assisted by the appellant to get to shore. He threatened her after he had rescued her and then had forced sexual intercourse with her followed by two (2) others. The appellant was convicted after a trial. His sentence of fourteen (14) years was confirmed by the Supreme Court.

35. Eddie Peter (No 2) was a case concerning the rape of a young primary school pupil in breach of a de facto trust with some violence and threat after a trial on a charge laid pursuant to s.347 of the Code. The rape occurred when the victim was on the way to school and it was after he had failed in an earlier attempt to have sex with her. The Prisoner was aged about thirty four (34) years at the time of the offence and was regarded as an uncle because he was married to the victim’s aunt. There, the Court imposed a sentence of seventeen (17) years imprisonment IHL.

36. Counsel also referred to Lawrence Hindemba v. The State (1998) SC593 and The State v. Kemai Lumou (2004) N2684 to support his submissions on the seriousness of the offence and the need to impose a sentence that reflected that in the present case.

37. Lawrence Hindemba was an appeal against the severity of sentence. The Supreme Court quashed the sentence of ten (10) years for the rape of a small girl imposed by the trial judge on a guilty plea and increased the sentence to fifteen (15) years. The Supreme Court was of the view that the trial judge’s sentence did not reflect the seriousness of the crime and the abhorrence of the society. The girl was ten (10) years old and the prisoner was twenty (20) years. There, the appellant grabbed the victim as she was returning from school, carried her into the nearby bush, threatened her with a pocket knife, refused to let her go when the victim’s sister intervened to free her and had sex with her by force in the presence of other school children. During the encounter, the victim was in immense pain and her vagina bled. The medical report confirmed that forced sexual intercourse took place with visible injuries to her vagina.

38. In Kemai Lumou, the victim was aged fourteen (14) years and the prisoner was twenty two (22) years old. The prisoner was charged under s.229A (1) of the Code and convicted after a trial. The victim was the prisoner’s niece. The incident happened on her way to school. The prisoner had gone ahead of the victim and hid amongst some bamboo until she got to where he was. When she turned up, the prisoner grabbed her and tried to take her into the nearby bushes. The victim tried to shout for help, but the prisoner threatened to cut her with a bush knife and shut her mouth. The prisoner then removed the victim’s short, forced her to the ground and sexually penetrated her. The Court sentenced the prisoner to seventeen (17) years IHL.

39. Counsel urged the Court to impose a term of sentence between fourteen (14) to seventeen (17) years imprisonment.

THE LAW AND SENTENCING TREND

The law

40. The Prisoner has been convicted under s. 229A (1) of the Code. That provision creates the offence as well as prescribing the penalty. The maximum penalty for a conviction under sub-section (1) is subject to sub-sections (2) and (3), imprisonment for a term not exceeding twenty five (25) years. If the child is under the age of twelve (12) years or there is an existing relationship of trust between the offender and victim, the maximum penalty for the offence is life imprisonment. The general sentencing discretion of the Court still applies in all situations covered under s.229A. I set out s.229A below:-

"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."

Definition of sexual penetration

41. The phrase "sexual penetration" is defined by s. 6 of the Code. It reads:-

"6. Sexual penetration.

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

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

(b) the introduction, to any extent, by a person of an 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."

42. It is clear that sexual penetration in the present case was achieved by the introduction of the Prisoner’s penis into the victim’s vagina within the meaning of s.6 (a) of the Code.

Definition of relationship of trust, authority or dependency

43. The phrase "relationship of trust, authority or dependency" is defined by s. 6A of the Code. It reads:-

"6A. Relationship of trust, authority or dependency.

(1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where—

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counselor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care and control."

Circumstances of aggravation

44. Section 1 (1) of the Code states that ‘circumstances of aggravation" includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance’.

45. That phrase is also defined by s.349A of the Code, but the application of the definition there is restricted to Division 7 (Sexual offences and abduction) of Part V (Offences against the Person and Relating to Marriage and Parental Rights and Duties and against the Reputation of Individuals) of the Code. Section 229A falls under Division 2A (Sexual offences against children) of Part IV (Acts injurious to the public in general). Section 349A reads:-

349A. Interpretation.

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where—

(a) the accused person is in the company of another person or persons; or

(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or

(c) at the time of, or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or

(d) the accused person confines or restrains the complainant before or after the commission of the offence; or

(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or

(f) the accused is a member of the same family or clan as the complainant; or

(g) the complainant has a serious physical or mental disability; or

(h) the complainant was pregnant at the time of the offence; or

(i) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

Penalty in the present case

46. Circumstances of aggravation pleaded in the indictment were, as I have alluded to earlier, that; the victim was then in a relationship of trust with the Prisoner; that immediately before the commission of the offence, the Prisoner assaulted the victim; and that the Prisoner confined the Prisoner before and after the commission of the offence. Those circumstances of aggravation were also put to the Prisoner on arraignment. There is also evidence that support the existence the circumstances of aggravation. In the circumstances and more particularly because there was an existing relationship of trust, authority or dependency between the Prisoner and the victim within the meaning of s.6A (2)(c), the Prisoner is liable, subject to s.19 of the Code, to imprisonment for life pursuant to s.229A (3).

The sentencing trend

47. In considering an appropriate sentence to impose in the present case, the proper approach would be to have regard to some of the sentences imposed in cases involving sexual penetration of a child considered either under s.229A or s.347 of the Code. I set out below some examples that I think demonstrate the sentencing trend for the offence under consideration where guilty pleas were entered in all of the cases.

48. In The State v. Ezra Hiviki (2004) N2548, the prisoner was convicted of the rape of a girl aged ten (10) years by an older relative contrary to s.347 (1) of the Code on a guilty plea. The prisoner aged sixteen (16) years was the victim’s first cousin. The offence occurred in a breach of trust situation. Vaginal injuries required medical repair, there was expression of remorse, and the prisoner was a first time young offender. The Court sentenced the prisoner to thirteen (13) years imprisonment IHL.

49. In The State v. Peter Lare (2004) N2557, Justice Kandakasi imposed a sentence of twenty (20) years IHL on a guilty plea by a first time offender as the aggravating factors far outweighed the factors in his favour. The prisoner was charged under s.229A. The prisoner was an uncle to the victim and he had several and or repeated acts of sexual penetration of the victim over a long period in a breach of trust situation. The victim was actually adopted by the prisoner and his wife when her parents died while she was a baby and was dependant on the prisoner for her upkeep. The prisoner’s wife was actually the victim’s aunt. The prisoner did not cause any injuries to the victim, but medical evidence showed that the prisoner infected the victim with a sexually transmitted disease. There was a substantial age difference between them. The prisoner was forty (40) years old whilst the victim was under the age of twelve (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 relatives.

50. In The State v. Eddie Trosty (2004) N2681, Justice Kandakasi imposed a sentence of six (6) years IHL on a guilty plea by a first time offender to a charge under s.229A (1). The victim was the prisoner’s girl friend. The victim was fifteen (15) years old whilst the prisoner was twenty one (21) years old at the time of the offence. They had sexual intercourse several times before with the victim’s consent. The prisoner did not cause any injuries to the victim.

51. In The State v. John Ritsi Kutetoa (2005) N2814, Justice Cannings imposed a sentence of seventeen (17) years imprisonment IHL on a guilty plea to a charge under s.229A by a first time offender in an existing relationship of trust which the prisoner breached. The victim was the prisoner’s step daughter. On the date of the incident, the prisoner was heavily intoxicated. He returned to the house around midday where he found the victim with his stepson. The prisoner got the victim into a room in their house where he sexually penetrated her. She was about eleven (11) years old at the time.

52. In The State v. Thomas Angup (2005) N2830, the prisoner was convicted on guilty pleas to four (4) counts from sexual touching of a child under twelve (12) years to sexual penetration of a child under twelve (12) years and sixteen (16) years. The charges were laid under s. 229B and s.229A (1) and (2) respectively. These offences were committed in breach of an existing relationship of trust in that the victim was the prisoner’s step daughter he having been married to her mother. The charges arose out of a pattern of sexual abuse over a period of six (6) years. The victim became pregnant and bore a son before attaining the age of sixteen (16) years. Her schooling was terminated. Justice Lay after applying the totality principle, imposed an aggregate sentence of twenty (20) years imprisonment IHL.

53. In The State v. Stanely Sabiu, (2005) CR No. 1832 of 2005, Unreported Judgment delivered on 21 December 2005, Justice Kandakasi imposed a sentence of seventeen (17) years for one count of sexual penetration of a male child through his anus then aged six (6) years pursuant to s.229A (1)(2) on a guilty plea by a first time offender as factors in aggravation far outweighed those in mitigation. The victim bled from his anus. The prisoner paid K500.00 compensation and expressed remorse which were also taken into account in mitigation. Factors aggravating were; there was a substantial age difference; the prisoner was the natural maternal uncle of the victim being the son of the prisoner’s sister therefore a breach of trust reposed on him; physical and psychological pain and suffering was caused to the victim; the offence was against the order of nature as well; and the offence was committed against an innocent child.

54. In The State v. Kaminiel Okole (2006) N3052, Justice Lenalia, on guilty pleas, imposed sentences of nine (9) years and eight (8) years respectively for the first two (2) counts of sexual penetration pursuant to s.229A (2)(3) to be served consecutively and five (5) years for the third count for breach of trust, authority or dependency contrary to s.229E (1) which was to be served concurrently with count two (2). The Court ordered that two (2) years would be suspended from the head sentence of seventeen (17) years on condition that the prisoner served fifteen (15) years of his sentence. The offences were aggravated by; an existing relationship of trust, authority and dependency and the abuse of trust; the victim was under the age of twelve (12) years and a substantial age difference. At the time of the offences, the victim was the prisoner’s step daughter having been married to her mother. The victim was aged about nine (9) or ten (10) years when the prisoner started sexually abusing her which continued for over a period of over eight (8) years when she later became pregnant which revealed her predicament.

55. In The State v. Tiama Esrom (2006) N3054, Justice Lenalia imposed a sentence of twelve (12) years IHL for one count of sexual penetration pursuant to s.229A (2)(3) aggravated by an existing relationship of trust, authority and dependency and that at the time of the offence, the victim was aged nine (9) years while the prisoner was aged between fifty (50) and sixty (60) years. The victim was the daughter of the prisoner’s first born daughter, ie, the prisoner’s granddaughter.

56. In The State v. Siro Waida (2008) N3311, Justice Kandakasi imposed a sentence of seventeen (17) years on a guilty plea for one count of sexual penetration of the victim aged fourteen (14) years at the material time pursuant to s.229A (1) and (3) of the Code. The prisoner was a first time offender. The prisoner and the victim were first cousins and therefore the incident occurred in breach of an existing trust. The prisoner was older than the victim. The prisoner asked to have sexual intercourse with the victim, but she refused because of the close blood relationship. The prisoner did not accept her response and persisted. He then used a knife to threaten the victim and then forced her into the nearby bushes where he had sexual intercourse with her without her consent. No physical injury was inflicted on the victim. The victim became pregnant later. No meaningful steps were taken to pay compensation.

Factors relevant to sentence

57. In Pennias Mokei (No.2), Justice Cannings suggested some factors to be taken into account when deciding an appropriate sentence for this offence. These are:-

1. Is the prisoner a first offender?

2. Did the offender plead guilty?

3. What was the age of the victim?

4. Was there consent?

5. Was there any aggravated violence?

6. Was the offence part of a pattern of persistent abuse?

7. If there was an existing relationship of trust, authority or dependency, what was the strength or closeness of that relationship?

8. Has the offender shown or offered any remorse, apology, regret, or sorrow? If so, is it genuine, meaningful, timely and tangible?

9. Has the offender caused any trouble with the victim or his or her family, since the commission of the offence or since the matter was taken to the Police?

58. I will adopt those factors and apply them to the circumstances of this case.

APPLICATION OF FACTORS

59. I now apply the factors alluded to above.

1. Is the prisoner a first offender?

Yes. I have given no weight to the prior conviction for stealing of ballot papers. This is effectively the Prisoner’s first conviction for purposes of sentencing in the present case and the Court will therefore give him the benefit of being a good law abiding citizen prior to that. This will benefit the Prisoner.

2 Did the offender plead guilty?

Yes. By pleading guilty, the Prisoner saved the State the time and money it could have spent on running a trial. This will benefit the Prisoner.

This also confirms the position the Prisoner took in the Record of Interview when he cooperated with the police by admitting the crime and he maintained that position up to when he entered his plea on the first available opportunity given by the Court. This will benefit the Prisoner.

3. What was the age of the victim?

She was fourteen aged (14) years.

It is not really clear what the exact age of the Prisoner was at the time of committing the crime. This is because while the Antecedent Report states that he was aged twenty three (23) years when the report was done, the defence counsel has submitted that his client was aged about thirty (30) years old and in the Record of Interview when questioned about his age at Q8, the Prisoner said he was aged twenty four (24) years. My observation of the Prisoner sitting in the dock was that he was probably aged about twenty eight (28) or twenty nine (29) years. He would therefore have been aged about twenty four (24) or twenty five (25) years at the time of committing the crime. I think any doubt caused should be to the Prisoner’s benefit. I find that the Prisoner was, a young, but not a youthful offender, aged twenty four (24) years at the time of committing the offence consistent with the Record of Interview.

The disparity in age between the Prisoner and the victim is therefore ten (10) years. This will operate against the Prisoner.

4. Was there consent?

No. There was no consent. The victim was assaulted before being raped. The Medical Report confirms that the victim suffered vaginal injuries. This will operate against the Prisoner.

5 Was there any aggravated violence?

The Prisoner assaulted the victim on her head with his closed fist and covered her mouth with his hands to stop her from calling out for help before raping her. This will operate against the Prisoner.

6 Was the offence part of a pattern of persistent abuse?

No. It was not part of a pattern of persistent abuse, but rather an isolated incident. This will benefit the Prisoner.

7 If there was an existing relationship of trust, authority or dependency, what was the strength or closeness of that relationship?

The Prisoner is the victim’s uncle. The victim was staying with the Prisoner and his wife in their house when the crime occurred. What he did amounted to a very serious betrayal of trust. This will operate against the Prisoner.

8 Has the offender shown or offered any remorse, apology, regret, or sorrow? If so, is it genuine, meaningful, timely and tangible? Was there remorse?

I accept that the Prisoner’s expression of remorse on allocatus, was genuine. His payment of some form of compensation to the victim’s family within a period of two (2) weeks after the incident as is evidenced by the Settlement Order is testament to that and will be considered in the Prisoner’s favour.

9. Has the offender caused any trouble with the victim or his or her family, since the commission of the offence or since the matter was taken to the Police?

There is evidence that the Prisoner caused trouble after the incident. The Prisoner assaulted family members namely, Eripui Degba and his brother with a coffee stick and an axe when they approached him to enquire about the alleged incident the day the incident was reported. The victim was assaulted by the Prisoner one (1) week later with a long bush knife for reporting the matter to relatives. She received injuries to the back of her head and an arm. This will operate against the Prisoner.

Other aggravating factors

60. Other factors I consider aggravating are that; the victim suffered injuries to her vaginal area as is confirmed by the Medical Report and no doubt she would have suffered trauma as well; the victim was infected with bacteria causing the venereal disease gonorrhea as is also confirmed by the Medical Report; some premeditation was involved which could be inferred from the conduct of the Prisoner in chasing away his wife; and the offence is prevalent.

Weighing of factors for and against the Prisoner

61. The factors considered in favour of the Prisoner are that; he pleaded guilty; he is treated as a first offender; this was an isolated incident; he made admissions at the earliest opportunity and cooperated with the police; he expressed genuine remorse; and some form of compensation was paid.

62. The factors considered against the Prisoner are that; the victim did not consent; there was a very serious betrayal of trust; the victim was assaulted before being raped; the victim suffered injuries to her vaginal area; some premeditation was involved which could be inferred from the conduct of the Prisoner in chasing away his wife; the victim was confined before and after the commission of the offence; and the offence is prevalent

63. The factors against the Prisoner appear to outweigh those in his favour. However, I do not think this case warrants the imposition of the maximum penalty prescribed because I think the Prisoner has made out a case for the imposition of a lesser sentence.

SENTENCE

64. Having considered all the factors for and against the Prisoner, the seriousness of the offence; the abhorrence of society; the need for the Court to impose a deterrent sentence due to the prevalence of the offence; and the comparable sentences demonstrating the sentencing trend, I think a sentence of fourteen (14) years IHL less time spent in custody is appropriate in the circumstances. Incarceration will be at the Barawagi CS. I will not suspend any part of the sentence.

65. A warrant shall issue forthwith to give effect to this sentence.

66. I order accordingly.

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