N5551
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 586 OF 2013

THE STATE

V

KANAU JOHN

Lorengau: Geita AJ
2013: 15, 21, 23 October

CRIMINAL LAW – Sentence – Particular offence – Sexual penetrating of a girl under 16 years – S. 229A (1) (3) of the Criminal Code Act.

CRIMINAL LAW – Guilty plea - breach of trust relationship existed- Outboard motor dinghy skipper and passenger – Uncle and niece- married man age difference of 17 years –Victim 8 years –Prisoner 25 years -Sentenced to 10 years- Partly suspended with Probation and conditions- -Deterrence and exemplary sentence preferred - 3 years to be served. 

Cases Cited 

The State vs Smith James Oindomo N867O
The State v Stanley Sagum SC 866 
The State v. Wasa David Warifa (2008) N 3308
The State v Ndrakum Pu-u Unreported 2005 N2949
The State vs Titus Soumi (2004) N2809
The State v Goli Golu [1979] PNGLR 653 

Counsel: 

Francis Popeu, for the State
Paul Moses, for the accused

SENTENCE

23 October, 2013 

1. GEITA AJ: You pleaded guilty to a charge of sexual penetration of PE, a girl under the age of 12 years along the banks of Indrim River, Porondrau village in Lorengau Manus Province. You penetrated her vagina with your penis thereby contravening s 229A (1) (2) (3) of the Criminal Code Act, as amended to date. At the time a breach of trust and existing relationship of trust, authority and dependency existed by virtue of a boat skipper to his passenger.

The Law
2. You have been convicted of sexual penetration of a girl under the age of 16 years an offence contrary to s. 229A (1)(2)(3) Criminal Code Act, as amended. It reads:

"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.

The facts
3. The facts as agreed by the State and Defence on the depositions for the guilty plea are these: On 22 January 2013 you were the skipper of an outboard motor dinghy plying between Lorengau town and your village Porondrau via the Indrim River. On board the dinghy was the complainant and other passengers who were dropped along the way with the complainant being the last passenger to be dropped off at her village. However along the way you stopped the dinghy at the river banks took the complainant into nearby bushes and sexually penetrated her. You than returned to your dinghy and dropped the complainant at her village. She immediately reported the matter to her mother. You were subsequently arrested on the same day and charged. A medical report obtained the day after confirmed findings of slight bruising below the right labia majora with the vaginal hymen visibly torn. Her vaginal canal according to Dr. Samson Vava at Lorengau General Hospital seemed wider and loose, than normally seen in less than 8 year olds. The doctor's physical findings is strongly suggestive that the complainant was sexually penetrated. 

Allocutus
4. In your allocutus, you said sorry for what you have done in the eyes of God and to the court. You said what you have done was not good and asked to be considered for Probation. You said you were the only in your family earning an income and was worried about your aged parents. You said your two families have reconciled and some K3000.00 was paid to the complainant and her family members. You also told court about police brutality when you were arrested. 

Mitigating factors
5. a) Your plea of guilty in spite of penalty as life imprisonment

 b) No prior convictions 

 c) That you had expressed genuine remorse for your behaviour.

 d) no physical injuries caused to the victim

 e) That you are first-time offender

 f) That the act was not persistent 

 g) You have reconciled with the victim's relatives

 h) Spur of the moment offence 
 
Aggravating factors 
6. 1) Victim under age and 8 years at time of crime

 2) Breach of trust, dependency and authority (boat skipper and passenger.

 3) Age difference of 17 years between victim and prisoner.

Pre Sentence Report & Means Assessment Report
7. The Pre-Sentence Report sets out in great detail all relevant information and it contains a recommendation that you be given a wholly suspended sentence. I must commend the Probation Officer for a well researched and balanced report. Everything that the court needed to know about you is contained in the report.

8. There are aggravating factors against you which I cannot simply ignore. The big age difference between you and the girl at the time of the offence. The girl was 8 years old and you were 25 years old, you were a married man for that matter. There is no evidence that you have a disturbed marital relationship with your wife. You could always go to her to satisfy your sexual desires. In fact you have a hard working caring wife. 

Defence submissions
9. Your Lawyer told me about your personnel particulars and also made submissions on what the appropriate sentence ought to be in your case. In his submissions, your lawyer has urged the Court to take into account in your favour mitigating factors which he says far out-weigh any aggravating factors, such that in the facts and circumstances of this case, the Court should impose a sentence of 7 years imprisonment. He submitted that for the reasons he had advanced, he urged the Court to wholly suspend any sentence that may be imposed and place you on probation with strict conditions. Mr Moses submitted that your case was not the worst of its kind of sexual penetration and urged the court to impose a lesser sentence. The State v Goli Golu referred. In support of his arguments Mr Moses referred the court to two cases: The State v Ndrakum Pu-u Unreported 2005 N2949 and The State vs Titus Soumi 2004 N2809. A sentence of 2 years and 4 years was imposed on the prisoners respectively. In his submissions for leniency and suspension of sentence the case of The State vs Smith James Oindomo N867O was cited to me. This case involved police brutality or what is now referred to as jungle justice, where the police or citizens take the law into their own hands. 

State submissions
10. Counsel for the State, Mr Popeu submitted that the prisoner was charged with sexual penetration with a minor and breach of trust, dependency and authority. The victim and the prisoner have very close family ties making this case very serious. Furthermore the position of trust is extended to their relationship as skipper of the dinghy and a passenger. This close knit family ties brought about the amicable settlement and payment of compensation to the victim and her family. He submitted that although the pre sentence report was favourable to the prisoner the crime was very serious warranting life imprisonment. The court should not loose sight of the fact that the victim was a very young child, 8 years at the time. Mr Popeu submitted that these category of people were the most vulnerable people within the society and the community and especially court must be seen to protect them. He referred this court to the Supreme Court case The State v Stanley Sagum SC 866. This was a guilty plea case in which a young men was sentenced to prison for 17 years by the National Court. He appealed to Supreme Court and the Supreme Court confirmed the sentence of 17 years. On the question of jungle justice being used on the prisoner and calls by his lawyer for a wholly suspended sentence Mr Popeu said a reduction in sentence be preferred by National Court and not a wholly suspended sentence. The huge age difference in the case and the vulnerable child calls for a much higher sentence. Mr Popeu submitted for head sentence of 15 years with movements upwards or downwards depending on the circumstances of the case. 

Community attitudes
11. During my short time as a Judge I have observed that sexual offences against young girls and women appear to be on the increase in our country. On every circuit I make to your province I have dealt with at least one or two cases of this nature and it concerns me greatly. I am sure it must also be a concern to law abiding citizens here in this province. For this month's circuit alone I have dealt with 3 sexual offences related cases. 

12. In your case you not only committed a serious crime involving a young girl but you have now caused fear amongst the female passengers whose main form of transportation to and from Lorengau town are via outboard dinghies. They will now have second thoughts when confronted with using the services of your outboard motor, more so with you as their boat skipper. You will no longer be trusted by most female passengers. In fact they will shy away from using your services resulting in loss of regular income for you and your family. Due to the prevalence of such offences and with the intention of safeguarding the female population especially under aged children Parliament has prescribed very high penalties. The most recent amendments being those passed in 2003 relating to Offences against Sexual Immorality and the passage of laws relating to Sexual Offences and Crimes Against Children. (Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. You now find yourself victim of one of these new laws. 

13. I agree with Mr Popeu's submission that the case was very serious and there is and was a serious breach of trust, dependency and authority. As I understand from the facts before me, the victim called you "my uncle" in her statement given to police. And obviously her parents trusted you as a close relative and that their daughter would be in safe hands. As it turned out you took advantage of her young age, age which she could not resist your advances, took advantage of the isolated environment and sexually assaulted her. There is also some evidence that that you were drinking beer along the way. You not only put the lives of your passengers at risk but allowed the beer to cloud your sense of judgment and fell for the all too common sin-lust and raped your family member.

14. All in all I consider this crime to be serious and I must punish you to send the message to other boat skippers, as this appears to be the most common form of transportation in this province. All dinghy skippers must not fall into the same trap nor indulge in alcohol consumption when carrying passengers in their boats.

Police brutality
15. Turning to police brutality the courts do not condone these types of actions. They must be discouraged at all costs as it only amount the civil society taking the law into their own hands. Be that as it may you should not expect any leniency from the Courts than what is reasonably necessary, especially in mitigating your case. I will take your concern into account in the overall sentence. Generally you have yourself to blame in that you invited that type of punishment on you. These actions only go to show the communities disgust and anger at the crime you committed. 

Sentence
16. The issue for consideration is what is the appropriate sentence that should be imposed upon you. There are a number of important legal principles involved in sentencing. Some of these include rehabilitation, retribution, protection of the community both general and specific deterrence. In your case the sentence most appropriate would be one of protecting the community especially vulnerable young children. I note from your pre sentence report of your good character however they do not warrant you significant leniency in this case as there has been an abuse of position of trust involving sexual assault on a young child. 

17. In all the circumstances of this case taking into account your plea of guilty, your expression of remorse, your lack of prior convictions, payment of compensation but bearing in mind the aggravating factors I have alluded to above as well as the need for deterrence, I consider a sentence of 10 years imprisonment in hard labour to be appropriate which I so impose. I deduct from that sentence 2 years for police brutality as you have alleged. I will deduct 1 year for your guilty plea and another 1 year for payment of compensation, leaving you with 7 years. Three (3) years of which will be suspended on condition that you be placed on Probation and to be of good behaviour upon your release from custody. In view of the serious nature of this crime especially one committed against an innocent 8 year old girl at the time some form of deterrence must be sanctioned to stop others from committing such similar offences in future. The courts must send a strong message that will protect young girls and those offenders cannot buy their way out of proper punishment. As such I must impose an exemplary deterrence punishment on you as the courts have a duty to protect young children. You are therefore ordered to serve the remainder two (3) years imprisonment in hard labour. I do not propose to further suspend any part of the sentence other than those already given as this sentence in my view includes some degree of leniency. 

 COURT ORDER 
1.Head sentence		10 years	
2.Deduct sentence for Police brutality 	-2 years	-8 years	
3. Deduct for guilty plea 	-1 year	-7 years	
4. Deduct for payment of compensation	- 1 year	-6 years	
5. Suspend portion of sentence, to be placed on Probation with condition after serving sentence	- 3 years	-3 years	
6. Remainder of Sentence to be served in custody 		3 years imprisonment.	
__________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused