N4666

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 701 OF 2011

THE STATE

V

OJ POHANGAT PALOU

Manus: Gabi, J
2012: 23 March

CRIMINAL LAW – Sentence – offender charged for sexual penetration - trial after plea of not guilty – no expression of remorse – youthful offender – first time offender – mitigating and aggravating factors considered – suspended sentenced imposed – s229(A) (1)and (2)Criminal Code Act

Facts:

The prisoner has been found guilty of sexually penetrating a child under the age of twelve (12) years contrary to s.229A (1) & (2) of the Criminal Code. The offence attracts a maximum penalty of life imprisonment. The Court, after a trial;

Held:

1.	The prisoner is to enter into his own recognizance to keep the peace and be of good behaviour for a period of five (5) years;

2.	The prisoner and his family shall pay K5, 000.00 in cash as compensation to the victim and her mother within twelve (12) months of the decision. If the ordered compensation is not paid the prisoner shall serve an additional six (6) months;

3.	The prisoner's cash bail of K300.00 shall be paid to the Probation Officer, who will pay it to the victim and her mother as part of the ordered compensation of K5, 000.00. The Chief Probation Officer is directed to supervise compliance with the compensation order;

4.	The Chief Probation Officer is to prepare a report on the payment of the compensation and submit it to me on or before 30th March 2013;

5.	The prisoner is to attend counselling sessions as directed by the Chief Probation Officer;

6.	The prisoner shall perform at least four (4) hours of community work per week for twelve (12) months to be directed and supervised by the Chief Probation Officer. 

Cases cited

The State v Biason Benson Samson (2005) N2799
The State v David Kisiluvi Buso CR 310 of 2003
The State v Eddie Trosty (2004) N2681
The State v Frank Kangai [1987] PNGLR 320
The State v John Ritsi Kuetoa (2005) N2814
The State v Kemai Lumou (2004) N2684
The State v Pennias Mokei (No.2) (2004) N2635
The State v Peter Lare (2004) N2557
The State v Titus Soumi (2005) N2809
The State v William Bruce Tardrew [1986] PNGLR 9
The State v Willie Dominic (2005) N2938

Counsel

P. Kaluwin, for the State
C. Koek, for the prisoner

SENTENCE

23 March, 2012

1. GABI, J: Introduction: The prisoner has been found guilty of sexually penetrating a child under the age of twelve (12) years contrary to s.229A (1) & (2) of the Criminal Code. The offence attracts a maximum penalty of life imprisonment.

Facts

2. The facts as found on conviction following the trial are that on 2nd March 2011, between 4.00 pm and 6.00 pm, at Dingou Masih village, the victim, who was under eight (8) years of age, was playing with a number of her friends and left them to go to the toilet. After the toilet she decided to go and collect galip nuts when she came across the prisoner, who called her to go to him. She did. It is alleged that when she got to him he grabbed her and took her to the nearby bush where he laid her down on the ground removed her clothes and sexually penetrated her. He let her go after he heard her mother calling and threatened to kill her if she told anyone about the incident. He told her to tell her mother that her vagina was pierced by a guava branch when she climbed the tree to collect guava fruits. On the way she met two (2) of her relatives, who were about the same age as her, saw her bleeding from her vagina. One took her to the river to wash her while the other went to the victim's mother for help. The victim's mother arrived and took her to Lorengau General Hospital. At the hospital she initially told the Health Extension Officer (HEO) that a guava branch pierced her vagina but when her father arrived she told him that the accused had raped her. She did not tell anyone about the prisoner because he had threatened to kill her and did so only after her father arrived at the hospital. 

3. The victim was born on 13th December 2003 while the prisoner was born on 9th April 1995. At the time of the offence, the victim was under 8 years of age and the prisoner was just under sixteen (16) years of age.

Antecedent Report

4. The prisoner has no prior convictions.

5. The prisoner was given an opportunity to address the court on punishment. He declined the invitation and left it to his lawyer to address the court on sentence.

Pre-Sentence Report

6. The prisoner is sixteen (16) years of age and single. There are three (3) of them in the family and he is last in the family. His elder brother is currently on practical training as a mechanic in Kimbe while the sister works with Papindo Trading in Madang. The father left them in 2007 and he has been living with his mother in the village. He has no means of support and relies on his mother for support. He was in grade 6 at Dingou Masih Primary School when he committed this offence and withdrew from the school as a result. He plans to continue with his education next year. He is in good health and is a member of the Evangelical Church of Manus (ECOM). The mother and relatives of the prisoner asked for mercy and leniency and for the Court to consider placing him on probation. The mother of the victim, on the other hand, asked the court to impose a custodial sentence. 

7. The report suggested that the prisoner is not a danger to any one individual or the community and recommended probation supervision. One of the reasons for the recommendation is that there is no Juvenile Institution in this Province; the only recognised Institution is Erap Boys Town in Lae. 

8. A feature of the report is the insistence by the prisoner and his relatives that the prisoner is innocent and that they would appeal the decision. While I appreciate their desire to appeal, it would have been useful and helpful to the Court to suggest their possible contribution in the sentencing process. I would have liked to know such things as their attitude towards payment of compensation under the Criminal Law (Compensation) Act. 

Mitigating and Aggravating factors

9. The mitigating features are the tender age of the prisoner, that he is a first time offender, that he cooperated with the police, that no weapons were used in the commission of the offence, that this was an isolated incident and there was no evidence of planning. In addition, the prisoner, while on bail complied with his bail conditions, which is an indication that he is a trust worthy person. 

10. Despite all the above, a noticeable feature of this case was the inability of the prisoner to express remorse at all especially when one was expected. In addition, a trial was run where the victim was forced to give evidence, relived the trauma and the horror of indignation and was subjected to cross examination. She also suffered serious injuries as a result of the assault. 

Purpose of the Law

11. In 2002, the elected representatives in the National Parliament in their wisdom made substantial amendments to the Criminal Code with a view to protecting the children of this country against sexual exploitation and abuse. Under section 229A of the Criminal Code, a person who sexually penetrates a child under the age of twelve (12) years commits a crime and the maximum penalty for the crime is life imprisonment. This clearly shows the intention of Parliament that the court treats sexual exploitation and abuse of children, the most vulnerable members of the society, seriously. The Court is required to take into account the underlying purpose of the legislation in sentencing.

12. There is some suggestion in the report that the prisoners "financial status appears healthy "and the "parents have guaranteed their fullest support." I note that the brother and sister of the prisoner are employed. The report recommends probation supervision. I believe compensation must be paid as an act of remorse and to restore peace in the community as the prisoner and the victim come from the same village and there is some suggestion of family connection or relationship between them. 

13. K5, 000.00 is the maximum amount of compensation that may be ordered under the Criminal Law (Compensation) Act. The court is required to consider "the degree and nature of any personal injury ... suffered...as a result of the commission of the offence" when ordering the amount of compensation (s.3(1)(b)). The injuries received by the victim are:

"On examination she was showing signs of early dynamic instability so was resuscitated with intravenous fluids. Examination of her genitals revealed bleeding from her vagina, there was a perineal tear and hymen was torn. 

On the 3rd of March at 11.45 am she was taken into the theatre and examination under anaesthesia and suturing was done. The findings showed laceration to the vaginal floor, perineal tear and torn hymen. The operative diagnosis was then Perineal/Vaginal Laceration consistent with sexual assault." 

14. In view of the serious injuries suffered by the victim, I am of the view that the appropriate amount of compensation in this case is K5, 000.00.

Sentence

15. The sentences for this offence range from two (2) years to twenty (20) years depending on the circumstances of each case (see The State v Titus Soumi (2005) N2809; The State v Willie Dominic (2005) N2938; The State v Biason Benson Samson (2005) N2799; The State v Eddie Trosty (2004) N2681; The State v David Kisiluvi Buso CR 310 of 2003; The State v Pennias Mokei (No.2) (2004) N2635; The State v Kemai Lumou (2004) N2684; The State v John Ritsi Kuetoa (2005) N2814; The State v Peter Lare (2004) N2557).

16. In The State v Biason Benson Samson (supra), a sentence of five (5) years was imposed on a seventeen (17) year- old young offender. The victim was thirteen (13) years of age at the time of the offence. The prisoner pleaded guilty, that he acted alone, that no physical injury was occasioned to the victim, that no weapons or aggravated physical violence were used, that the prisoner cooperated with the police, that the prisoner expressed remorse, that he was a first time youthful offender, that it was an isolated incident and that there was no existing relationship of trust, authority or dependency. 

17. In a more recent Kimbe case, The State v David Kisiluvi Buso (supra), the offender was a fifteen (15) year old boy when he committed the offence and the victim was a five (5) year old girl. The girl's parents had forgiven the offender and did not want to see him sent to jail. The sentence was seven (7) years imprisonment (though three (3) years was suspended in view of the favourable pre-sentence report).

18. In this case, while the offender and the victim are of tender age, which is an important consideration, a trial was conducted where the victim was forced to relive the trauma and the prisoner and his relatives expressed no remorse at all but continue to maintain that the offender is innocent. In addition, the victim suffered serious injuries. I am of the view that the appropriate sentence in the circumstances is ten (10) years imprisonment.

19. Should I suspend part of or the whole sentence? Suspension of sentence is not a "soft option" or an exercise in leniency but an order made in the interest of the community and designed to prevent re-offending (see The State v Frank Kangai [1987] PNGLR 320). Suspension may be appropriate where it would promote rehabilitation of the prisoner (see The State v William Bruce Tardrew [1986] PNGLR 91). The victim's mother wants to see the prisoner sent to jail. In addition, counsel for the State submitted that a deterrent custodial sentence is appropriate and warranted in this case.

20. I have given a lot of thought to this question. I am mindful that a custodial sentence may cause more harm than good to the prisoner in view of his tender age and his exposure to hardened criminals in prison. It is in the interest of society that the offender is reformed or rehabilitated so that he becomes a useful member of the society in the future. As such, I suspend the whole of the sentence on the following conditions:

1.	The prisoner is to enter into his own recognizance to keep the peace and be of good behaviour for a period of five (5) years;

2.	The prisoner and his family shall pay K5, 000.00 in cash as compensation to the victim and her mother within twelve (12) months of the decision. If the ordered compensation is not paid the prisoner shall serve an additional six (6) months;

3.	The prisoner's cash bail of K300.00 shall be paid to the Probation Officer, who will pay it to the victim and her mother as part of the ordered compensation of K5, 000.00. The Chief Probation Officer is directed to supervise compliance with the compensation order;

4.	The Chief Probation Officer is to prepare a report on the payment of the compensation and submit it to me on or before 30th March 2013;

5.	The prisoner is to attend counselling sessions as directed by the Chief Probation Officer;

6.	The prisoner shall perform at least four (4) hours of community work per week for twelve (12) months to be directed and supervised by the Chief Probation Officer. 

_____________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the prisoner