State v Makai [2010] PGNC 107; N3914 (25 January 2010)

N3914

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1640 OF 2006

THE STATE

V

STEVEN MAKAI

Kimbe: Cannings J

2009: 15, 21 December,
2010: 25 January

SENTENCE

CRIMINAL LAW – sentencing – persistent sexual abuse of a child – sentence after trial – victim, a girl aged nine or ten years – Criminal Code, Section 229D – sentence of 20 years.

The offender was convicted after a trial of one count of persistent sexual abuse of a child, contrary to Section 229D(1) of the Criminal Code, in circumstances of aggravation. The offender was a man aged about 30 years. The abuse was constituted by three occasions of sexual penetration committed over a 19-month period when the girl was aged nine or ten. She is his sister-in-law. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for persistent sexual abuse of a child is 20 years imprisonment.

(2) Mitigating factors are: the offender acted alone; he used no weapon or aggravated violence; he has caused no further trouble to the victim; he is a first-time offender.

(3) Aggravating factors are: the large age gap (20 years) between the offender and the victim; the tender age of the victim; there was no consent; the breach of trust was extreme; there has been no reconciliation or forgiveness; the offender did not plead guilty; he has expressed no remorse.

(4) A sentence of 20 years imprisonment was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

The State v Amos Jonathan CR No 457 of 2009, 22.12.09
The State v Arnold Kulami CR No 737 of 2007, 26.06.09
The State v Ereman Kepas (2007) N3192
The State v Kikia Solowet CR No 196 of 2006, 24.08.07
The State v Steven Makai CR No 1640 of 2006, 15.12.09

SENTENCE

This is a judgment on sentence for the crime of persistent sexual abuse of a child.

Counsel

F Popeu, for the State
R Beli, for the offender

25 January, 2010

1. CANNINGS J: This is a decision on sentence for a man convicted after trial of one count of persistent sexual abuse of a child, contrary to Section 229D(1) of the Criminal Code. The offender, Steven Makai, was about 30 years old. The child, his sister-in-law, was nine to ten years old. She was living near him at Sarakolok, near Kimbe, when the abuse occurred over a 19-month period from December 2004 to July 2006. It consisted of three separate incidents of penile penetration of the victim's vagina. Further details of the offence are in the written judgment on verdict, The State v Steven Makai CR No 1640 of 2006, 15.12.09.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I have never stood before a court before. I have never done anything wrong in my community. I have a family and blocks of cocoa and coconut to look after. I have school fees for four of my children to pay for next year and I do not know how I am going to do that if I am in prison. I ask the court to consider what I have just said.

PRE-SENTENCE REPORT

4. Steven Makai comes from Vovosi village in the Hoskins area. He is now aged 34 and married to an East Sepik woman and they have five children. The marriage is stable. He abused the victim while living at his wife's family's block at Sarakolok. He is the eldest in a family of six children. Both his parents are alive and elderly. He has a grade 6 education and attended Moramora Technical School. Apart from a stint as a welder for the purposes of his practical training he has had no formal employment. He survives financially from the sale of cocoa and coconut. His health is sound. He is a member and regularly attends the CRC Church at Vovosi.

5. The offender's wife and his father (but not his mother who was in hospital) were interviewed. They are extremely concerned about the welfare of his children and do not want to see him imprisoned. The victim was interviewed and said that he had not apologised to her and not paid any compensation and she does not want to see him again. She is now severely physically disabled. Her condition has deteriorated since the abuse though it is not clear that the abuse caused the deterioration. Her parents were interviewed and neither of them want to accept any compensation. They just want to see the offender imprisoned for what he did to their daughter.

6. The report contains no strong recommendation for probation. The report notes – as borne out by the allocutus – that the offender still does not accept responsibility for his actions.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Beli submitted that compared to the recent case of The State v Arnold Kulami CR No 737 of 2007, 26.06.09 in which the offender received as sentence of 17 years for sexual penetration of a six-year-old girl, this was a less serious case due to the narrower age gap between the offender and the victim, and the age of the victim. A sentence of less than 17 years was warranted, Mr Beli submitted.

SUBMISSIONS BY THE STATE

8. Mr Popeu, for the State, submitted that a sentence of 17 to 20 years should be imposed, as there was a very serious breach of trust and the offender had pleaded not guilty, necessitating a trial. A suspended sentence would not be appropriate, Mr Popeu submitted.

DECISION MAKING PROCESS

9. 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 should the head sentence be?
• 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?

10. The sentencing regime under Section 229D (persistent sexual abuse of a child) of the Criminal Code, which distinguishes between:

• persistent sexual abuse under Section 229D(1) (consisting of commission of two or more child sex offences other than sexual penetration) for which the maximum penalty is 15 years imprisonment; and
  
• persistent sexual abuse under Section 229D(6) (consisting of commission of two or more child sex offences, at least one of which involved an act of penetration) for which the maximum penalty is life imprisonment.
  

11. In the present case the offender was indicted and convicted under Section 229D(6). The maximum sentence is thus life imprisonment. However, the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. The Supreme Court is yet to give detailed sentencing guidelines for this sort of offence but given that the maximum penalty is life imprisonment I consider a starting point of 20 years imprisonment would be appropriate.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

13. I have dealt with only two other cases involving the offence of persistent sexual abuse:

• The State v Ereman Kepas (2007) N3192. The offender was a 60-year-old man and the victim his ten-year old adopted daughter. The abuse consisted of five instances of sexual touching and one instance of penetration of the girl's vagina with his penis, which resulted in the girl suffering physical injuries and being hospitalised. I regarded the offender's guilty plea and advanced age and his poor medical condition as major mitigating factors and sentenced him to 12 years imprisonment.
  
• The State v Kikia Solowet CR No 196 of 2006, 24.08.07. The offender was a 58-year-old man and the child a nine-year-old girl, his niece, who was living in the family home. The abuse consisted of three separate incidents of digital penetration of the victim's vagina. Mitigating factors were that it was a case of digital, not penile, penetration, the offender had caused no further trouble to the victim, he was a first-time offender and his advanced age and poor medical condition. He received a sentence of 12 years imprisonment.
  

14. Two recent cases of sexual penetration of children, where the offenders were convicted after a trial of one count of engaging in an act of sexual penetration with a child under 16 years contrary to Section 229A of the Criminal Code, are also relevant:

• The State v Arnold Kulami CR No 737 of 2007, 26.06.09, the case referred to by Mr Beli. The offender was aged 50 and the victim aged 6. There was a relationship of trust which was abused by the offender. The sentence was 17 years.
  
• The State v Amos Jonathan CR No 457 of 2009, 22.12.09. The offender was aged 48 and the victim aged 4. There was a relationship of trust which was abused by the offender. The sentence was 17 years.
  

STEP 4: WHAT IS THE HEAD SENTENCE?

15. I refer to the list of sentencing considerations set out in The State v Kikia Solowet CR No 196 of 2006, 24.08.07 and highlight the following mitigating and aggravating factors.

16. Mitigating factors:

• the offender acted alone;
• he used no weapon or aggravated violence;
• he has caused no further trouble to the victim;
• he is a first-time offender.
  

17. Aggravating factors:

• there were three separate instances of penile penetration;
• the offender's actions exposed the victim to the risk of incurring sexually transmitted diseases (as per medical report in the trial);
• the large age gap (20 years) between the offender and the victim;
• the tender age of the victim;
• there was no consent;
• the breach of trust was extreme;
• there has been no reconciliation or forgiveness;
• the offender did not plead guilty;
• he has expressed no remorse.
  

18. Given the number and strength of the mitigating and aggravating factors there is no justification for sentencing below the starting point of 20 years. This is certainly not a case that warrants a sentence of less than 17 years imprisonment, as contended for by the defence counsel.

19. This is a more serious case than the four cases referred to above because there were three instances of penile penetration of the vagina and the offender cannot rely on his age or medical condition as mitigating factors. I impose a sentence of 20 years imprisonment.

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

20. 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 HEAD SENTENCE BE SUSPENDED?

21. The pre-sentence report shows that the offender is still unwilling to accept responsibility for his actions. If he were ordered to pay compensation he would find it difficult to pay. In any event the victim and her family don't want compensation. The only factor that might provide justification for a partial suspension is the effect that a long prison term will have on the offender's family. But that is outweighed by the other factors. This is not an appropriate case for a suspended sentence.

SENTENCE

22. Steven Makai, having been convicted of one count of persistent sexual abuse of a child under Section 229D(1) of the Criminal Code in circumstances of aggravation under Section 229D(6) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	20 years
Pre-sentence period to be deducted	8 months
Resultant length of sentence to be served	19 years, 4 months
Amount of sentence suspended	Nil
Time to be served in custody	19 years, 4 months
Place of custody	Lakiemata Correctional Institution

Sentenced accordingly.

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