State v Moresia [2014] PGNC 350; N5937 (3 November 2014)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

CRIMINAL LAW – Sentence – Sexual Penetration – Stepfather/step daughter – Mitigating factors – Guilty Plea – First time offender – No genuine Remorse – Aggravating factors – Close relationship of trust, authority and dependency – Prevalent offence – Appropriate sentence – 15 years less pre-sentence custody period – Sentence Part Suspended - Criminal Code act Ch. 262, ss 229A (2)(3), 19 (6).

Pennias Mokei CR 596 of 2004 (Unnumbered, unreported)
Stanley Sabiu v The State (2007) SC866 (27 June 2007)
The State -v- Ben Sakias (2011) N4238
The State -v- Danny Tutuve (2011) N4400
State v Joseph Baero CR 680 OF 2014 (31 October 2014)
The State -v- Joe Mui CR: 1495 of 2010
The State -v- Kuyaps Toki Jonathan (2008) N3315
The State v Peter Lare (2004) N2557.
The State -v- Pennias Mokei (No: 2) (2004) N2635
The State -v- Steven Siname (2009) N3908
State v Tomas Angut (2005) N2830

1. KAWI-IU, AJ: You pleaded guilty to a charge that you did on the 27 day of December 2013 at Bituketai, Panguna in Autonomous Region of Bougainville sexually penetrated one Meai Kepu, a child under the age of 12 years. AND, at the time, you restrained Meai Kepu before the commission of the offence. AND, at the time of the commission of the offence, Binna Moresia caused grievous bodily harm to Meai Kepu, AND THAT Meai Kepu was then in a relationship of trust, authority and dependence with him.
This is an offence under section 229A (2) (3) of the Criminal Code Act Ch. 262 (the Code).

2. After perusing the District Court Depositions and satisfying myself that the evidence is sound in respect to the charge, confirm the plea, which is consistent with instruction to counsel.

3. The victim was 8 years old at the time of the commission of this offence. She is the sister of the prisoner’s wife. On the 22nd December at about 10.00 am, the prisoner’s wife left her two small children in the care of her sister/victim and had gone to her garden to get some vegetables. After she had gone, prisoner turned up at the house in a drunken state after consuming homebrew all night with his friends. At the house he saw the victim minding his two small children. He then grabbed hold of the victim, forced her down on the bed and sexually penetrated her. He held her down tight onto the bed hence she could not struggle nor scream to free herself. After he had penetrated her, he walked away. Victim suffered pain and was bleeding heavily due to forceful entry resulting in the tear of her vagina.

4. At the time you committed the offence, you were 30 years old. You are married with 3 children. You had no formal education. You are a subsistence farmer. You are a first time offender.

5. In your address you apologised to the court and your family for the wrong you did. You asked the court to have mercy on you. You told the court that the family of the victim spoilt your garden and other properties. You also told the court that this is your first time in court and promised not to do this trouble again. You also told the court that you had been in the cell for a long time.

6. Your lawyer Mr Lugabai informed the court that the maximum sentence for your offence is imprisonment for life, subject to court’s discretion under section 19 of the Criminal Code. He submits that factors against you were that the offence was perpetrated on a child under the age of 12 years. She is the sister of your wife and a sister-in-law to you. The victim suffered severe injury resulting in rupture of the hymen.

7. However, he urged the court to weigh these factors against those in your favour. These are, your plea of guilty, cooperation with the police, expression of remorse, and you are a first time offender. Your lawyer referred me to a couple of cases. Firstly, the case of The State v Pennias Mokei CR 596 of 2004 (Unnumbered, unreported). In that case His Honour Cannings J. sets out certain considerations as factors in considering appropriate sentences. These considerations will be considered a little later in the judgment. These are:

8. In approving the above considerations the Supreme Court in Stanley Sabiu v The State (2007) SC866 (27 June 2007) reiterated that a sentencing judge must take into account all the circumstances of the particular case before him/her when determining the appropriate sentence.

But while the above considerations may seem exhaustive there may appear other factors and considerations that may arise in specific circumstances. For instance, factors which tend to aggravate or mitigate the range of sentence in a lot of the cases surveyed above the courts took into account whether the offender impregnated the victim. Thus a case may involve other considerations such as infecting a child with HIV/AIDS which is not a distant speculation. It may as well happen that perpetrators may want to satisfy their sexual debaucheries when their victims are drugged. The circumstances enumerated above can be taken appropriately as either mitigating or aggravating the offence.

9. The State v Peter Lare (2004) N2557. In that case the victim was aged 10 years and abused continued until she was 14 years of age. She was the step daughter of the accused. When she revealed these to her relatives she was taken to hospital, and found to be infected with sexual transmitted infection (STI). The STI alone was taken as a factor of aggravation in which accused was sentenced to 20 years imprisonment.

10. State v Thomas Angut (2005) N2830. In that case the victim was 12 years of age. Sexual acts continued until she was 14 years of age. Accused charged with sexual touching and sexual penetration over the period. Accused was the step daughter of the victim. She was impregnated and became a mother before the age of 15. Her education was cut short as she was expelled from school. Accused was sentenced to 10 years imprisonment.

11. For your case your lawyer urged the Court to take heed of the following matters which would mitigate your sentence. You pleaded guilty to the charge, thus saving time and resources if trial had been conducted. But more importantly release the victim from the trauma and stress from reliving the tale of the ordeal. You are a first time offender. You expressed remorse for what you did to your in-law.

12. This case is a one off incident, no pattern of sexual abuse over a period of time, victim not infected with sexual transmitted infection/sexual transmitted disease, and no aggravated violence caused on the victim. It is not a case of prisoner performing indignities on the victim.

13. Defence submits that if the court starts increasing penalties, clear guidelines must be had. It is strongly submitted that appropriate penalties are not question of how long or short a prisoner must be sent to prison for, rather what benefits the prisoner will gain from such a prison sentence. Put in another way, counsel colloquially enquired of the prisoner. After the dust had settled, this person will still go home, still be called a father, still be called a tambu etc. Simply put if there is any form of punishment it should not be a crushing one but such that the prisoner after serving his term will assimilate into the society without undue consequences. Thus, when sentencing the court should bear in mind the issue of justice for the prisoner.

14. Thus your lawyer urged the court to consider an appropriate sentence which he says to be between 15 – 18 years imprisonment and further submits that court exercise its discretionary power under section 19 of the Criminal Code to suspend part of the sentence.

16. The State submits that the nature of this case is similar to the State v Joseph Baero CR 680 OF 2014 (31 October 2014). The facts and circumstances are the same except age. Facts in Bareo (supra) are these: “The victim was 12 years old at the time of the commission of the offence. She is the step daughter of the accused and was living with accused at Tarara village at the time. That sometime in the month of August 2013 in the middle of the night when the victim was fast asleep he took off her trousers. When she woke up and tried to scream, he held her mouth tightly to close it and forcefully held her down on the bed hence she could not free herself and escape. Whilst in that position, he forcefully penetrated her vagina with his penis. When he finished, he threatened her saying that her mother and relatives would beat her up if she told them.”

17. In the present case, State submits that the prisoner did not mend the relationship after committing the offence, left the victim and walked away leaving the victim in tatter. Thus, prisoner showed no act of genuine remorse.

18. For a starting point he urged the court to consider sentence in this case involving an 8 year old victim should be 15 years adjustable up or downward depending on circumstances. In the circumstances of this case counsel submits that a sentence of 17 years should be an appropriate starting point.

19. In response to defence submission to suspend part of the sentence State submits that suspension cannot be made in the absence of a Pre-Sentence Report. He argues that the purpose of the law is not to be derailed. Although no detailed submission is made on this point it would seem that his reference is directed to the PSR for purpose of suspension considered under the Probation Act Chapter 381. Thus he may have been of the view that a suspended sentence can occur only when a PSR had been provided.

20. In reply defence says that courts do not require a PSR as that requirement is for consideration of suspended sentence under the Probation Act. Court’s other powers in suspending sentence can be drawn from section 19 of the Criminal Code and other provisions in the Constitution.
THE LAW

21. The offence of sexual penetration of a child is provided by Section 229A of the Code in the following terms:

(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 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, 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.

22. Your lawyer referred to some cases previously dealt with, similar to your case in considering an appropriate sentence. He referred to the case of The State -v- Pennias Mokei (No: 2) (2004) N2635 in which Cannings J. sets out some factors which may impact on the range of sentence to be imposed.

23. These factors are: (see para 28 below). For now a few cases will be cited for consideration of sentence.

No	CASE	PARTICULARS	SENTENCE
1	The State -v- Danny Tutuve (2011) N4400; Ipang AJ.	Trial – one count of persistent sexual abuse – two separate occasions of penile penetration of 9 year old child by 55 years old prisoner – huge age difference.	18 years less pre-trial custody period.
2	The State -v- Ben Sakias (2011) N4238; Sawong J.	Plea – prisoner sexually penetrated niece on two different occasion – Prisoner 28 years old/ victim 14 years old – mitigating factors – Plea saved victim from giving evidence in court – expression of remorse – unsophisticated villager – first time offender – No violence – Aggravating factors – Breach of trust – victim became pregnant – Prevalence of offence.	12 years less pre-sentence custody period.
3	The State -v- Joe Mui CR: 1495 of 2010; Cannings J.	Convicted of one count of persistent sexual abuse (penetration) of child - No particulars available to the court.	12 years less pre-sentence custody period.
4	The State -v- Steven Siname (2009) N3908; Lenalia J.	Plea – 3 counts of persistent sexual (penetration) abuse – biological brother/sister relationship – victim 15 years old – mitigating factor – plea of guilty, first time offender – no injuries – Aggravating factors – victim became pregnant - Not one after incident.	For cont 1 & 2 = 28 years cumulative. Count 3 – 10 years concurrent. Total 28 years less time in pre trial custody.
5	The State -v- Kuyaps Toki Jonathan (2008) N3315; Kandakasi J	Plea- persistent sexual penetration of 13 years old girl – breach of trust – use of threats and force – victim become pregnant – no compensation – First time offender – Prevalent offence – Prisoner 22 years old.	18 years less period in pre-sentence custody period.

24. Section 229A (2) came into force together with other amendments to the Criminal Code in 2002 because of the growing concern at the increase in sexual abuse cases against children. By passing these amendments Parliament has stated that sexual offences against children are very serious and should be punished as such. In the last 3 years sentences for the offence to which the accused has pleaded guilty and other offences under s.229A have increased, partly in response to the call of the community for stronger sentencing concerning the sexual abuse of children (see Stanley Sabiu v The State (2007) SC866 (27 June 2007).

25. The National Court has considered and imposed numerous sentences for offences against s.229A since it came into force. Some of those cases are cited in Stanley Sabiu (supra). Of those cases where the victim was 12 years of age and under, the sentences of imprisonment imposed were 20, 17, 9 and 8 years. In the latter 2 cases the victims were 10 and 12 years of age and the offenders were 18 and 21 years of age. In 5 cases where the victims were between 13 and 15 years of age, sentences of imprisonment imposed were 20, 17, 15, 12 and 10 years.

26. The maximum sentence for sexually penetrating a child under the age of 16 years is 25 years imprisonment, however if the accused is in a position 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 (s.229A (1) (3)).

27. What should the starting point be in such cases? In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that the sexual penetration of children under the age of 12 years is the more serious, hence the larger maximum penalty. In The State v. Biason Benson Samson (supra) Cannings J. determined that the starting point in a case involving a 13-year-old victim was 15 years imprisonment. We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than 15 years imprisonment.

28. As we have seen from the above cases, sentences have ranged from twelve (12) to twenty eight (28) years – the higher sentences being those where there was existing relationships of trust, authority and dependency.

29. The Supreme Court said in Stanley Sabui -v- The State (supra) – that Parliament had clearly spoken that sexual penetration of children should be severely punished and that the sexual penetration of children under 12 is more serious hence attracting the maximum penalty of life imprisonment. The Supreme Court there was dealing with an appeal against sentence for a conviction against S.229A of the Code.

30. The people have spoken very clearly through Parliament that they will not tolerate this kind of the most brutal and diabolical abuse of our most vulnerable and defenceless members of our society. And it falls on the courts to ensure that offenders – who invariably are people who stand in positions of trust – are appropriately punished. So in the present case what would be an appropriate sentence for the prisoner?

31. The maximum sentence that can be imposed here is life imprisonment. However, it is well settled law that the maximum penalty is always reserved for the worst category cases. (Goli Golu -v- The State [1979] PNGLR 653. Maima v. Sma [1972] PNGLR 49, Avia Aihi v The State.
However the actual sentences depend largely on the peculiar circumstances of each case.

32. In sentencing offenders for sexual penetration of children generally, the Supreme Court in Stanley Sabui -v- The State (supra) adopted what Cannings J. restated a list of considerations for sentencing in respect of child sexual penetration cases that he had previously mentioned in The State -v- Pennias Mokei (No: 2) (2004) N2635.

34. In approving the above considerations the Supreme Court in Sabiu (supra) reiterated that a sentencing judge must take into account all the circumstances of the particular case before him/her when determining the appropriate sentence. The circumstances enumerated above can be taken appropriately as either mitigating or aggravating the offence.

The prisoner pleaded guilty to the charge, co-operated with police, is a first time offender. He did not impregnate victim nor did he infect her with any sexual transmitted infection (STI). No weapon was used in the commission of the offence, surrendered to the police and cooperated with police and had not caused further trouble after his apprehension.

36. Having reflected on the mitigating factors, the following aggravating factors are considered. The prisoner committed the offence against a child below the age of 12 years (8 years) against her will; some force was used in the commission of the offence, resulting in the child –ruptured hymen. There is an age difference of 22 years. There is an existing relationship of trust, authority and dependency, no remorse shown. Offences involving sexual penetration of children are prevalent.

37. The prisoner submitted through his counsel that a sentence between 15-18 years be imposed on the prisoner.

38. However, each case has to be considered on its own merits so that an appropriate sentence can be imposed that will address the conflicting interest of the parties involved – the offender, the State and the victim.

39. The prisoner after intoxicating himself and conscious of the fact that his wife was not at home he took the opportunity to fulfil his sexual desire on an innocent defenceless child and penetrated her to such an extent that the victim suffer physical injuries and no doubt as well as mental injuries.

40. The victim is the prisoner's sister-in-law. After he had penetrated her, he walked away. There was no demonstration of genuine remorse to mend the relationship. The victim was 8 years old at the time of the commission of this offence. Victim suffered pain and was bleeding heavily due to forceful entry resulting in the tear of her vagina.

41. After taking into account the aggravating and mitigating factors along those considerations proposed in Biason Benson Samson (supra) and considering the intent of Parliament to punish perpetrators of sexual offenders, it is only fitting that some form of retribution will suffice to deter the offenders from taking advantage of innocent and unsuspecting children to satisfy their crave for human lusts.

42. Counsel for the prisoner proposed a sentence of between 15-18 years whilst the State had proposed a head sentence of 17 years.

43. Thus in the circumstances I consider that an appropriate starting point should be 15 years. The Supreme Court said in Sabiu v State (supra) "we are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment". The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than the 15 years imprisonment.

44. My estimation of the case in so far as factors in mitigation and aggravation are relevant, there appears to be balance, thus the head sentence proposed will not be adjusted.

46. In the exercise of my discretion I will consider suspending part of the sentence, pursuant to section 19 of the Criminal Code. This discretionary power to suspend sentence must be distinguished with that under the Probation Act.

Ordered accordingly
_________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner

1	Head Sentence	15 years
2	Amount deducted for pre-sentence custody period	10 months, 14 days
3.	Resultant sentence	14 years 1 month, 2 weeks
4	Suspension	7 years, 1 month, 2 weeks
5	Amount of sentence to served at Buka Corrective Institution.	7 years

National Court of Papua New Guinea

State v Moresia [2014] PGNC 350; N5937 (3 November 2014)