N4174

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 819 OF 2008

THE STATE

V

JOE KURIA

Mendi: Makail, J
2009: 25th March &
2010: 04th & 12th November

CRIMINAL LAW - Sentence - Guilty plea - Sexual penetration - Insertion of fingers into vagina - Girl under 12 years - Early guilty plea - Co-operation and admission of offence - No prior convictions - Expression of remorse - No pre-planning - Single offender - No persistent act of sexual penetration - No use of weapons - No substantial age difference - Victim aged 10 - Offender aged 15 - Offence committed during broad daylight - Threat of violence - Non consensual sexual intercourse - Serious physical injuries - Existing relationship of trust - Prevalence of offence - Sentence of 13 years imprisonment imposed - Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002 - Section 229A(2)&(3) and Criminal Code, Ch 262 - Section 19.

Legislations:

Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002
Criminal Code, Ch 262

Cases cited:

Goli Golu -v- The State [1979] PNGLR 653
The State -v- Kiddi Sorari (2004) N2553
The State -v- Ilam Peter (2006) N3090
The State -v- Yanda Walika: CR No 861 of 2008 (Unnumbered & Unreported Judgment of 19th November 2008)
The State -v- Norman David: CR No 317 of 2007 (Unnumbered & Unreported Judgment of 18th October 2007)
The State -v- Tonny Kupin: CR No 475 of 2009 (Unnumbered & Unreported Judgment of 22nd May 2009)

Counsel:

Mr J Kesan, for the State
Mr F Kirriwom, for the Offender

SENTENCE

12th November, 2010

1. MAKAIL, J: The offender pleaded guilty to one count of sexual penetration of a female child under the age of 12 years under section 229A(2)&(3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002. At the time of addresses on sentence by counsel, the offender had escaped from custody and made himself unavailable for the continuance of the hearing, rendering the continuance of the proceeding in his presence impracticable. On the State's application, I ordered the hearing to proceed in his absence pursuant to section 571(1) of the Criminal Code, Ch 262. This is my decision on sentence. 

BRIEF FACTS

2. The facts on which the offender pleaded guilty are these; the offender and the victim are from Weriko village in Pangia of the Southern Highlands Province. The victim was 10 years old and the accused was 15 years old and both lived at Weriko village. The offender is a son of the victim's father's aunt and may be referred to as a long distant cousin of the victim's father or the victim's uncle. The offender and the victim knew each other well. 

3. On 29th October 2007 at about midday, the offender and his friends were swimming at Komo river. They also smoked marijuana. The victim and a friend went to the river to fish. They walked past the location where the offender and his friends were swimming and the offender saw them. He followed them and caught up with them. He told the victim's friend to collect his short at the location where the other boys were. The victim's friend refused and he got angry. He tried to assault her and she fled into the nearby bushes. 

4. In fear of her safety, the victim tried to scream, but the offender grabbed her and pushed her to the ground. He lifted her skirt, removed her pants, spread her legs and penetrated her vagina with his fingers. Then, he tried to penetrate her vagina with his penis but was unsuccessful. He attempted many times and as a result, the victim sustained heavy bruising and lacerations to her vagina and lost a lot of blood. The offender ran away and the victim went home. She reported the matter to her family and the offender was apprehended and charged.

OFFENDER'S ALLOCUTUS

5. On allocutus, the offender said that he was sorry for what he did to the Court, the victim and her family. He acknowledged that he had broken the law but did not intent to break it. He broke it because at that time, he was under the influence of marijuana. It was the victim's brother who gave him marijuana. He said he was a first offender and paid compensation of K4,353.00 and 7 pigs to the victim and her relatives. He asked for leniency and be placed on probation.

THE LAW

6. The amendments to the Criminal Code contained in the sexual offences section 229A(2)&(3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002 which 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) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) If at the time of 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." 

7. The offence to which the offender has been charged and convicted of carries a maximum penalty of life imprisonment because first, the victim is under the age of 12 years and secondly, there is a relationship of trust between the offender and the victim. Life imprisonment is what the offender is looking at right now, however the Court has discretion under section 19 of the Criminal Code, Ch 262 to impose a lesser penalty. It is said that the maximum penalty should be reserved for the worst case under consideration: see Goli Golu -v- The State [1979] PNGLR 653.

REASONS FOR DECISION

8. I have considered the submissions of both counsel in relation to matters of mitigation and aggravation in this case. First, the offender is a first offender and has no prior conviction. He co-operated with the police and admitted the offence. He pleaded guilty to the offence. This has prevented the victim from coming before the Court to testify against him and relive the bad memories of the ordeal. He has also saved the Court's time and expense to conduct a full trial. Secondly, I take into account that there was no preplanning by the offender to commit the offence. I find that it is a one off incident. Further, the offender acted alone as opposed to a gang or mob attack. 

9. Furthermore, there was no persistent act of sexual penetration. It was only one act of sexual penetration and committed under the influence of a strong drug, namely, marijuana. Next, there is little age difference between the offender and the victim. The offender was 15 years old and the victim was aged 10 at the time of the offence, an age difference of 5 years. Then, there is the offender's youthfulness which I also take into account. Finally, I take into account the offender's remorsefulness during his allocutus and apology to the Court, the victim and her family. 

10. I take into account the pre-sentence report. It confirmed the offender's claim that he paid compensation of 7 pigs totaling K3,800.00 and cash of K560.00 to the victim and her family. It also stated that the offender is a law abiding citizen and a first offender. Further, the victim and her family had forgiven him. It concluded by strongly recommending a non custodial sentence and community work for the offender. I take all those matters into account in my assessment of the sentence. 

11. However, in my view, they should not be used to avail him of the consequences and the seriousness of the offence committed against the victim. This is because first, I accept that there was physical violence caused to the victim. The victim was grabbed and pushed to the ground against her will by the offender where the offender sexually penetrated her vagina with his fingers. Further, he attempted to penetrate her vagina with his penis several times but was unsuccessful. In my view, I have no doubt that it was a terrifying experience for a 10 year old unsuspecting victim, especially where she did not expect the offender to attack her after passing him near the river. It was a forced non consensual sexual intercourse incident.

12. Further, here is a case where the victim was helpless or could do very little to defend herself. It is no wonder, when the offender threatened her, she succumbed to him and he pushed her on the ground and committed the evil deed. I find this an aggravating feature of this case and will hold it against him. Following on from that, the second aggravating feature is the physical injury to the victim's vagina by the offender's fingers and attempted penile penetration. The relevant parts of the Medical Report by Ialibu District Hospital dated 05th November 2007 stated that:

"Physical examinations

•	Evidence of torn pants
•	Blood stained pants
 
 Per vaginal examination

•	Hymen was freshly torn
•	Bleeding from freshly torn hymen tag
•	Perineal region torn with bloody stained around

The vaginal area was inflamed and multiple superficial abrasions around the vuval region. For the investigative purposes, the vaginal swabs for the spermazoa was taken which confirmed laboratory results "not spermazoa seen"

Note: No usual speculum could be passed as the vaginal opening was small to accommodate."

13. It concluded that the multiple abrasions, bloody stained around the vaginal area and the inflammation around the vuval region confirmed several attempts of penile penetration of the victim. Based on the Medical Report, I am satisfied that the victim sustained serious physical injuries to her vagina as a result of finger vaginal penetration and attempted penile vaginal penetration. Further, although the Medical Report did not state that the victim has been traumatized by the ordeal, I can assume that she must have been, however, to what degree, I do not know. As Kandakasi, J observed in the case of The State -v- Kiddi Sorari (2004) N2553, numerous sexual and other violent offence cases clearly show that, victims of such offences suffer and continue to suffer ongoing psychological problems.

14. Thirdly, although there is no big age difference between the offender and the victim, the offender being 15 years old and the victim aged 10 at the time of the offence, this was a case of a minor or and a offender, a teenager having non consensual sexual intercourse. It means, the victim is a small girl of tender age and is not physically matured to have sex. To my mind, this is another aggravating feature of this case and I will hold it against the offender. 

15. Fourthly, the offence was committed in broad day light in an isolated location, where help was very remote. It is said that in cases where help does come, it is an act of divine intervention. Unfortunately though, there was no divine intervention for the victim in this case. I will hold this as an aggravating feature of this case because in my view, this case shows once again that it is very unsafe these days for young girls and generally our women folks to walk around freely in our communities. It is also said that it is even unsafe for our women folks in their very own homes. Therefore, the kind of sentence that will be imposed on the offender must not only act as a deterrent measure to him but also act as a symbol of the Court's strongest disapproval of offences committed against our women folks.

16. Fifthly, it must not be forgotten that this kind of offence is prevalent in our country. It is happening everyday and everywhere; not only here in the Highlands but other parts of the country as well. It just shows that no matter how high the Courts have raised the sentences on persons who commit this offence, the offence continues to increase. It is also for this reason that a higher sentence is called for in the circumstances so the offender and other would be offenders will be reminded to stay away from trouble.

16. This leads me to the next aggravating feature and that is that, from the facts of this case, I find that the offender abducted the victim. The act of abduction was that the offender threatened the victim. He grabbed the victim on her arm whilst her girlfriend in fear of her life, ran away. The offender then pushed the victim on the ground and committed the evil deed. It was an act against the victim's will. Thus, I hold this feature against the offender. I take into account the State's submission that given these aggravating factors, a sentence between the range of 16 and 17 years imprisonment is appropriate in this case. This is to send a strong warning to men that they will be punished severely if they commit this kind of offence.

17. In the case of The State -v-Ilam Peter (2006) N3090 the offender pleaded guilty to a charge of raping his own daughter and Lay, J found that there was a relationship of trust between the offender and the victim which was one of the aggravating feature of the case and sentenced the offender to 14 years imprisonment. In the present case, it has been pleaded in the indictment that there existed a relationship of trust between the offender and the victim. The evidence also established that the offender and the victim are related. The offender is a distant uncle of the victim from the victim's father's side. Therefore, there existed a relationship of trust between the offender and the victim. Hence, in my view, a sentence in the vicinity of 14 years may be appropriate in this case.

18. I find the facts of this case slightly similar to The State -v- Yanda Walika: CR No 861 of 2008 (Unnumbered & Unreported Judgment of 19th November 2008). The only difference between that case and this case is that, in that case, there was no existing relationship of trust between the offender and the victim. In that case, the Court sentenced the offender to 10 years imprisonment on his early guilty plea for sexual penetration of the child under the age of 12 years. The victim was a 9 years old girl from Western Highlands Province who was abducted and sexually penetrated by the offender from Southern Highlands Province in an isolated location in a coffee plantation in Kopon in Banz of the Western Highlands Province. It was a one off incident of sexual penetration and the offender was a first offender. 

19. This case is also slightly similar to the case of The State -v- Norman David: CR No 317 of 2007 (Unnumbered & Unreported Judgment of 18th October 2007). In that case, on 10th January 2007, about midday, the victim, a young girl of 14 years was with her cousin sister at a creek at Gumanch coffee plantation. She was keeping at an eye whilst her cousin sister was having a bath. The offender appeared from the nearby bush, armed with a bush knife and placed it on the victim's neck and told her that if she screamed, he would kill her. With his other hand, he grabbed the victim and pulled her further into the coffee garden. 

20. In the coffee garden, he pointed the bush knife at her and forced her down on the ground facing up where he undressed her, separated her legs and sexually penetrated her vagina with his penis. After that, he ran away but through the collective effort of the community, he was later apprehended and charged by the police. There was no existing relationship of trust, authority, or dependency between the offender and the victim. David, J sentenced the offender to 10 years imprisonment.

21. In a related case of The State -v- Tonny Kupin: CR No 475 of 2009 (Unnumbered & Unreported Judgment of 22nd May 2009), the Court sentenced the offender on his guilty plea to 10 years imprisonment on one count of sexual penetration of a female child under the age of 12 years at Tendop village in Laiagam of the Enga Province. The offender was a 50 years old man and the victim was a 9 years old girl and there was no existing relationship of trust, authority, or dependency between them.

22. The Court sentenced the offenders Yanda Walika, Norman David and Tonny Kupin (supra) to 10 years imprisonment because there was no relationship of trust, authority, or dependency between each of them and the victims where as in this case, there is one. In my view, therefore, the sentence in this case will be higher than 10 years imprisonment to reflect that circumstances of aggravation.

23. In reaching a final decision for the offender, I note that he is youth. This means that he has a long life to live and no children to worry about, although there might be some sense of longing-ness to be with his parents and siblings. While it is true that the Court must be mindful of the youthfulness of an offender and ensure that the sentence that it may impose must not be too crushing on the offender, this case is aggravated by the young age of the victim, the existing relationship of trust, threat of violence to the victim to procure the commission of offence, non consensual sexual intercourse and prevalence of the offence which make a custodial appropriate. It will serve as an act of deterrence to people like him and many would be offenders.

CONCLUSION

24. The offender must warned that for this kind of offence that he has committed on the victim, could result in life imprisonment for him and I do indeed appreciate the call by the State for a sentence of between 16 and 17 years imprisonment, and the reasoning behind the call, this being that sexual offences of this nature against young girls is prevalent in our community and society and the Courts must be tough on such offenders. However, taking into account the mitigating factors highlighted above and in particular, the offender's youthfulness I consider a punitive and deterrent sentence is called for in this case but the sentence will be less the sentence suggested by the State. Given this concession, there will therefore, be no suspension of the sentence despite the probation officer's strong recommendation in the pre-sentence for a non custodial sentence.

ORDERS

25. In the circumstances, I will sentence the offender to a term of 13 years imprisonment in hard labour less time spent in pre-trial custody. It is not clear from the depositions and submissions of his counsel when he was detained and when he escaped from custody. Nonetheless, computing the period from 05th November 2007, which was the date he was taken to Ialibu Police Station to 01st April 2010, which was roughly the date of the mass escape by inmates at Buihebi CIS prison, gives 2 years, 4 months and 24 days. Deducting that period from the head sentence of 13 years gives a balance of 10 years, 7 months and 6 days for him to serve in prison.

Sentence accordingly.

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