N4697

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 103 OF 2012

THE STATE

V

FRANCIS MOLEAN

Manus: Gabi, J
2012: 19 March

CRIMINAL LAW – sentence – Criminal Code s.229A(1) & (3) – sexual penetration of a child under the age of 12 – breach of relationship of trust, authority or dependency – offender aged 81 years – victim just under 12 years of age – age, health and guilty plea mitigating factors – age difference an aggravating factor.

Facts 

The Offender, an 81 year old man at the time of the offence, sexually penetrated his just under 12 year old granddaughter in breach of a relationship of trust.

Held

1.	Advanced age is a mitigating factor, at [12];
2.	The large age gap is an aggravating feature, at [16];
3.	Advanced age, medical condition and the guilty plea are the major mitigating factors, at [22];
4.	Suspension of sentence may be appropriate in three (3) broad categories:
(i) Where suspension will promote the personal deterrence, reformation  or rehabilitation of the offender; (ii) where suspension will promote  the repayment or restitution of stolen monies or goods; and (iii) where  imprisonment will cause an excessive degree of suffering to the   particular offender, for example because of bad physical or mental  health, at [23];
A custodial sentence would cause excessive suffering to an old and ill man, at [24];
Sentence of ten (10) years imprisonment wholly suspended upon terms.

Cases cited

Joe Nawa vs. The State SCR No. 16 of 2006
Public Prosecutor vs. Thomas Vola [1981] PNGLR 412, PNGLR 320
Public Prosecutor vs. William Bruce Tardrew [1986] PNGLR 91
The State vs. Arnold Kulami, CR No 737 of 2007, 26.06.09 
The State vs. Ereman Kepas (2007) N3192 
The State vs. Justin Nyama [1991] PNGLR at 127, PNGLR 271 at 275
The State vs. Kikia Solowet, CR No 296 of 2006, 24.08.07 
The State vs. Pahun Joseph CR No. 1600 of 2011
The State vs. Stafford Hambo (2010) N4120
The State vs. Thomas Waim [1998] PNGLR 360, 

References

Thomas, Principles of Sentencing (2nd edition, 1979),

Counsel

F. Popeu, for the State
P. Moses, for the prisoner

SENTENCE

19 March, 2012

1. GABI, J: Introduction: The prisoner pleaded guilty to sexual penetration of a child under the age of sixteen (16) years with circumstances of aggravation contrary to s. 229A (1) & (3) of the Criminal Code. The aggravating circumstances were that the prisoner and the victim were in an existing relationship of trust, authority or dependency at the time the offence occurred and the victim was just under twelve (12) years of age. The offence attracts a maximum penalty of life imprisonment.

Facts

2. The brief facts put to the prisoner to obtain a plea were that on 29th August 2011, between 4.00 pm and 5.00 pm, the prisoner and the victim were at Mouk village on Baluan Island in Manus Province. The victim, who was just under twelve (12) years of age at the time of the offence, went to the prisoner's house in search of her grandmother, the prisoner's wife. The grandmother was not in the house but the grandfather was and as the victim was about to leave the house the prisoner grabbed her and took her into the house. It is alleged that the prisoner then removed the victim's clothes and sexually penetrated her by inserting his penis into her vagina. The prisoner was eighty-one (81) years of age at the time of the offence. 

3. The antecedent report shows that the prisoner has no prior convictions. 

4. The prisoner was given an opportunity to address the court on sentence. He stated that he was sorry to both the court and the victim and her family. He asked for mercy and a non-custodial sentence on the basis that he is an old man and has no more strength left in him to do heavy manual work.

Pre – Sentence Report 
 
5. The victim was born on 27th September 1999. There is no birth record of the prisoner before the court but it is estimated that he is eighty-two (82) years old now. He was married in 1950 and if he were about twenty (20) years at the time of his marriage, the estimated age of eighty-two (82) is a reasonable intelligent guess and I accept the prisoner to be eighty-two (82) years old.

6. The prisoner and his wife of some sixty years have seven (7) children, twenty-four (24) grand children and two (2) great grand children. His wife, Poilep Lucy Francis, is in her mid to late 70s. He had grade 2 education at Baluan Primary School in 1940 and attended a course in fishing in Kavieng where he was employed by a fishing company on a boat from 1970 to 1980. Since then he has been living an ordinary subsistence lifestyle in the village. He has no means of income and depends on his children and sisters for financial assistance. He has health issues associated with advanced age. The prisoner was presented a Fuzzy Wuzzy Angels Commemorative Medallion last year by the Australian Government for his work during the Second World War. He is a member of Catholic Church and attends church service every Sundays. 

7. The report suggested that the prisoner is a threat to the community especially to young females. The writer, nevertheless, was of the view that a custodial sentence may not rehabilitate the prisoner and recommended a non custodial sentence with conditions that would minimise his exposure to young girls.

8. The prisoner's son, Sanau Saleiau, stated that the prisoner's family had attempted to pay compensation so as to resolve or settle the matter out of court but the victim's family refused to accept the offer. I hold the view that offering compensation to a victim or her family or engaging in a peace and reconciliation ceremony is a mitigating factor. It serves as an expression of remorse and is designed to restore peace and harmony in the community. Accepting compensation as a means to restore peace in a community must not be confused with buying one's way out of a formal charge under the criminal law. The latter is tantamount to a criminal conduct and must be discouraged at all costs.

9. 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 by any person 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:

"Pelvic Examination:

1.	Vulva/vagina looks normal,
2.	Hymen torn,
3.	Abrasion around fourcette,
4.	No bleeding,
5.	No PV discharge,
6.	High Vaginal Swab obtained for spermatozoa.

General Physical Examination:

1.	Unremarkable
2.	Results: - VDRL – non reactive
Retro
HVS – no spermatozoa seen on wet prep and gram stain...
In my opinion, she has been sexually assaulted."

10. The Medical Report shows that the prisoner did not cause any serious physical injury to the victim. However, we shall never know the psychological injury to the child. I am of the view that the appropriate amount of compensation in this case is K2, 000.00. 

11. The mitigating factors are that the prisoner acted alone, that he did not use offensive weapons or use aggravated physical violence to commit the offence, that he cooperated with the police, that he has not caused further trouble, that he has pleaded guilty, that he expressed remorse and that he is a first time offender. 

12. Advanced age is a mitigating factor. In Thomas, Principles of Sentencing (2nd edition, 1979), the learned author said at page 196:

"Age begins to be a relevant consideration again once the offender has passed 60, although at the end of the spectrum it is most effective as a mitigating factor when combined with another, such as good character." 

13. There is no character evidence before the court. The antecedent report shows that the prisoner is a first time offender. Should I accept that as evidence that the prisoner is a person of good character? Mr. Popeu of counsel agreed with the suggestion that lack of prior convictions should be taken as evidence that a person is of good character. 

14. The pre-sentence report and the court depositions indicate that the prisoner had sexually penetrated the victim and another young girl aged fourteen (14) years in the past and this is not the first time he has committed such an offence. As such, this offence is not an isolated incident.

15. The victim stated that she was sexually penetrated by the prisoner on
28th August 2011, the day before this offence was committed. Again the mother of the victim stated that a certain young girl, aged fourteen (14) years at the time, from the village fell pregnant to the prisoner. The young girl gave birth to a baby boy who lived for a week and died at the Lorengau General Hospital. This allegation was corroborated or confirmed by two (2) community leaders, Messrs Charlie Popei and Kisokau Alois of Mouk village. I remind myself that there is no evidence of this allegation before the court and the prisoner must be given the benefit of doubt as he has pleaded guilty. I am satisfied that this offence is an isolated incident and that the prisoner is a person of good character. 

16. The aggravating circumstances or features of the case are that there was a large age gap of sixty-nine (69) years and an existing relationship of trust, dependency and authority between the prisoner and the victim. The prisoner was aged eighty-one (81) at the time of the offence and the victim was just under twelve (12) years of age. 

17. 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 by those in a position of trust. Under section 229A of the Criminal Code, a person who sexual penetrates a child under sixteen (16) years of age commits a crime and if there was an existing relationship of trust between the offender and victim 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. 

18. Both counsel were in agreement that this is a serious case, that custodial sentence may not be an appropriate punishment in view of the advanced age and health of the prisoner, that some form of compensation should be ordered and that the appropriate head sentence should be between eight (8) and ten (10) years. A number of authorities were also referred to me and I have considered them.

19. In The State vs. Pahun Joseph CR No. 1600 of 2011, Manuhu J sentenced a thirty-three (33) year old man to a term of twenty (20) years for sexually penetrating a seven (7) year old girl. The offender pleaded guilty and paid compensation. The victim sustained serious injuries and there was an existing relationship of trust, authority or dependency.

20. In Joe Nawa vs. The State SCR No. 16 of 2006, a matured aged offender was originally sentenced to twenty (20) years imprisonment for sexually penetrating a eight (8) year old girl. There was father/stepdaughter relationship. The Supreme Court reduced the sentence to seventeen (17) years. 

21. When sentencing a sixty-two (62) year old offender for sexual touching in The State vs. Stafford Hambo (2010) N4120, Cannings J said:

"In The State vs. Ereman Kepas (2007) N3192 I sentenced a sixty-one (61)-year-old male offender to a term of twelve (12) years imprisonment on a charge of persistent sexual abuse of a child, his ten (10)-year-old adopted daughter. The abuse was constituted by five instances of sexual touching and one instance of sexual penetration, which caused serious physical injury to the victim. I indicated that if that offender were to be sentenced disregarding his advanced age and his medical condition; the sentence would have to be amongst the highest ever imposed for this sort of offence, ie in the range of twenty-five (25) to thirty (30) years imprisonment. However, I regarded the offender's advanced age and his medical condition as major mitigating factors. I did not feel that the cause of justice would be served by subjecting a sixty-one (61)-year-old man to a twenty –five (25)-year sentence. It would leave him little prospect but to die in prison as an old and ill man. I therefore imposed a sentence of about half of what would otherwise be warranted. I have taken a similar approach in other cases involving offenders of an advanced age who have been convicted of child sex offences, eg: The State vs. Kikia Solowet, CR No 296 of 2006, 24.08.07 (60)-year-old man convicted of persistent sexual abuse of his nine-year-old niece, who was living in the family home, sentenced to ten years imprisonment, in circumstances where a prison term of double that length was otherwise warranted) and The State vs. Arnold Kulami, CR No 737 of 2007, 26.06.09 (50-year-old man convicted of engaging in an act of sexual penetration of his six-year-old niece, sentenced to seventeen (17) years imprisonment, in circumstances where a prison term of twenty-five (25) years was otherwise warranted)."

22. The offender's guilty plea, medical condition and advanced age were the major mitigating factors. Likewise I consider that advanced age, medical condition and guilty plea as the major mitigating factors in this case. In the circumstances, I am of the view that the appropriate sentence in this case is ten (10) years. Should I suspend part of or the whole of the sentence? In The State vs. Thomas Waim [1998] PNGLR 360, His Honour Mr Justice Injia (as he then was) said:

"On the question of suspension of the whole or part of the minimum sentence, this power is conferred by section 19(1)(d). The power to suspend a sentence must be exercised on some proper basis: Public Prosecutor vs. Thomas Vola [1981] PNGLR 412. Relevant factors include first time young offenders, 18 years or below: Gimble vs. The State (1988-89) PNGLR 271 at 275; Good character and good family background: The State vs. Frank Kagai [1987] PNGLR 320; State vs. Justin Nyama [1991] PNGLR at 127; or on medical grounds: Public Prosecutor vs. William Bruce Tardrew [1986] PNGLR 91."

23. In Public Prosecutor vs. William Bruce Tardrew (supra), the Supreme Court held that suspension may be appropriate in three (3) broad categories: (i) where suspension will promote the personal deterrence, reformation or rehabilitation of the offender; (ii) where suspension will promote the repayment or restitution of stolen monies or goods; and (iii) where imprisonment will cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. 

24. A custodial sentence would cause excessive suffering to an old and ill man. In the exercise of my sentencing discretion, I suspend the whole of the sentence with the following conditions: 

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

2.	The prisoner is not to have any contact or communication with the victim ever;

3.	The prisoner and his family shall pay K2, 000.00 in cash as compensation to the victim and her mother within six (6) months from the date of this decision. If the ordered compensation is not paid the prisoner will serve an additional three (3) months;

4.	The prisoner's cash bail of K200.00 shall be paid to the Probation Officer, who will pay it to the victim and her mother as part of the ordered compensation of K2, 000.00. The Chief Probation Officer is directed to supervise compliance with the compensation order. 

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