State v Klom [2014] PGNC 201; N5833 (16 August 2014)

N5833

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 775 OF 2011

STATE

V

SAK KLOM

Mendi: Ipang, J
2014: 15 & 16 August

CRIMINAL LAW – Sentence – Offence of sexual penetration – s. 229A (1) (2) (3) Criminal Code Act (as amended) – Prisoner aged 29 years old – victim 8 years old.

Cases Cited

GoliGolu v State [1988-89] PNGLR 179
State v George Taunde(2005) N2807
State v Kuteto(2005) N2814
State v Penias Mokei(NO. 2) (2004) N2635
State v Ndrakum Pu-uh (2005) N2949
Stanley Sabiu v State (2007) SC866
State v Sepo [2013] PGNC 77; N50799

Counsels

Mr. T. Ai, for the State
Ms. C. Koek, for the Prisoner

16 August, 2014

1. IPANG, J: Sak Klom you pleaded guilty to 3 counts of sexually penetrating a female child which I will refer to her in this judgment as WR. The child WR was 8 years old and under 12 years at the time of the offence. You were charged under s. 229A (1) (2) of the Criminal Code Act (as amended). The maximum prescribed penalty under the provision you have been charged with is subject to s. 19, life imprisonment.
   

Brief Facts:

2. The brief facts for the purpose of your sentence are as follow;
   

The victim child WR is from Pesi village. At the time of the offence, she was 8 years old and a student at Poroma Elementary School. On all 3 occasions the offence took place at Pesi village.

1. Court 1 – the accused was at Pesi village. On the 12th of April 2011 at about 12midday the victim was at home. The accused found the victim alone at home, threatened her with a knife and took her to the nearby coffee garden. He laid her on the ground, gave her a 20 toea coin and removed her shirt and skirt. He removed his trousers and sexually penetrated her. After ejaculating he told the victim to hold his penis. He then inserted his penis into the victim's mouth before putting his trousers back on.
   
2. Court 2 – On the 13th day of April 2011 at about 1pm the victim was collecting twigs near the house. The accused threatened her with a knife. He took her to the same place in the coffee garden and sexually penetrated her. He told the victim to hold his penis and then inserted his penis into the victim's mouth. After that he gave her a 20 toea coin.
   
3. Court 3 – On the 14th day of April, 2011 at about 5pm the victim was at home. Her aunt called for her to go over for dinner at the aunt's house. On the way to the aunt's house the accused met her. He took her to the coffee garden again and sexually penetrated her. He made her hold his penis and inserted his penis into her mouth. He gave her 20 toea and left her. The next day he took the victim to the coffee garden again but was disturbed by the victim's aunt and took off. The victim's aunt Dulnong Kilom met the victim in the coffee garden. When questioned by the aunt the victim revealed what the accused had been doing to her. The aunt hid nearby to see what the accused would do. The accused returned to where the victim was. He unzipped his trousers but saw the victim's aunt and ran off.
   

3. Section 229 Sexual Penetration of a child is set out as follows:

(1) A person who engages in an act of sexual intercourse with a child under the age of 16 years is guilty of a crime.

Penalty: subject to subsection (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, subjection to section 19, to imprisonment for life.

4. The Antecedent Report presented recorded no previous convictions.

5. In Allocutus, the prisoner said sorry to God, the victim child to the Lawyers and the court.

6. I adopted the guidelines suggested by Cannings, J in State v Penias Mokei (No. 2) (2004) N2635 as followed by Lay, J (as he then was) in State v Ndrakum Pu-uh (2005) N2949 and Lenalia J in State v Sepo [2013] PGNC 77; N5079. The Supreme Court endorsed these factors in Stanley Sabiu v State (2007) SC 866. These factors are:

• Is there only a small age difference between offender and the victim?
  
• Is the victim not far under the age of 16 years?
  
• Was there consent?
  
• Was there only one offender?
  
• Did the offender used threatening and not used aggravated physical violence?
  
• Did the offender cause physical injury or pass on sexually transmitted disease to the victim?
  
• Was there a relationship of trust dependency or authority between the offender and the victim or if there was such relationship was it a distant one?
  
• Was it an isolated incident?
  
• Did the offender give himself up after the incident?
  
• Did the offender cooperate with the police in their investigation?
  
• Has the offender done anything tangible toward repairing his wrong such as offering compensation for reconciliation with the family of the affected victim?
  
• Has the offender caused any further trouble to the of the victim's family since the incident?
  
• Has the offender pleaded guilty?
  
• Has the offender genuinely expressed remorse?
  
• Is this his first offence?
  
• Is the accused a youthful offender or are the circumstances which the court will take and regard as mitigations?
  
• Are there any other circumstances of incidents which warrants mitigation of the head sentence?
  

Defence submission on Penalty
7. Ms. C. Koek of counsel for the prisoner submitted the following to be the personal particulars of the prisoner;

• He is 32 years old from Epil village, Nipa Kutubu;
  
• He is 3rd born in the family of 6 children;
  
• A member of United Church;
  
• Said to be reformed;
  
• Takes care of his old age mother;
  
• Willing to pay compensation;
  
• In custody for 3 years 4 months
  

Mitigating Factors

8. The following are the factors found in favour of the prisoner;

• Pleaded guilty, saves court and state's time to put up a trial;
  
• First time offender;
  
• Acted alone;
  

Aggravating Factors

9. These are factors not in favour of the prisoner;

• An offensive weapon, a knife was used;
  
• The offence was repeated;
  
• Huge age difference in that the prisoner was 29 years old and the victim was 8 years old at the time of offence. Thus, there was age difference of 21 years.
  
• Prevalence of the offence.
  

10. Ms. C. Koek of counsel for the prisoner submitted that it is the sentencing practice that the maximum penalty is often reserved for worst type of cases: Goli Golu v State [1988-89] PNGLR 179. In Thomas case, he was charged for defilement of a girl under the age of 12 years contrary to s. 213 (1) of the Criminal Code Act, Chapter 262. A sentence of 7 years imprisonment was imposed. The child victim was infected gonorrhoea. Mr. T. Ai for the State objected to Thomas Pipon's case saying the sentence was passed before enactment of the new law to deal with sexual offence and crimes against the children.

11. In State v George Taunde(2005) N2807, the prisoner pleaded guilty to one count of sexual penetration contrary section 229A (1) (3) of Criminal Code Act (as amended). Court found the prisoner to be a first time offender, aged 33 years old, the victim was 13 years old, no weapons were used,, no aggravated physical violence, prisoner co-operated with police, expressed remorse no compensation attempted. A sentence of 10 years imprisonment was imposed.

12. In the case of State v Kutetoa(2005) N2814, the prisoner pleaded guilty to one count of sexual penetration under s. 229A (1) (2) (3) of the Criminal Code Act (as amended). Prisoner was the first time offender age 39 years old. The victim was his 10 years old step daughter. Physical injury caused to the child. Violation of existing relationship of trust. Prisoner co-operated with police. Prisoner expressed remorse and no compensation paid. A sentence of 17 years imprisonment was imposed.

13. I find the present case does not fall under the worst type of cases. But I find there's stronger aggravating factors present then the mitigating factors. There is huge age difference there is prevalence of this type of offence and the offence was repeated on 3 occasions. There was tendency for further act to be repeated until discovered by the victim's aunt.

14. Subject to subsection 19, I consider a term of years imprisonment to be imposed. I consider the following sentence for the prisoner;

1. On the 1st Count: 9 years imprisonment
   
2. On the 2nd Count: 9 years imprisonment
   
3. On the 3rd Count: 9 years imprisonment
   

Total Sentence: 27 years imprisonment

15. I minus 11 years taking into account all mitigating factors. Prisoner will have 16 years to serve. I further deduct 3 years, 4 months been for the Pre Sentence Period served in custody. Prisoner will have 12 years, 8 months custodial sentence to serve. A Warrant for Commitment will be issued accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner