N6529
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR  1020 of 2011

THE STATE 

V

BRIAN SEBIA RAGI

Kimbe : Batari J
2014 : 9 April, 18 June

CRIMINAL LAW  sentence – sexual penetration – sexual penetration by body part – 11 year old victim taken to stream and sexually penetrated by use of finger – injury to vagina –rupture of hymen – plea – circumstances of aggravation – mitigating factors – 6 years imprisonment suspended on conditions appropriate - Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 section 229A (1)(2); Criminal Law (Compensation) Act 1991 sections 2, 3 considered.  

PNG Cases Cited
No cases cited 

Counsel:

A. Bray, for the State
D. Kari, for the Accused

18th June, 2014

1.	BATARI  J:   On 9th April, you pleaded guilty to an Indictment charging one count of sexual penetration of a child under 16 years contrary to s. 229A (1) and (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.  The prescribed maximum penalty is life imprisonment. This is your sentence.  

2.	You committed the offence in this way.  On 24 June 2011 between 7.00 and 8.00pm, 11 year old DT was with three younger children on their way to a Pens Creek at Vovosi village, Hoskins, WNB Province when you offered to accompany them. The creek was not free so, you took the children to Marisauru creek. You then offered to assist wash them. While attending to DT, you stroked her vagina with your fingers.  She cried out in pain, causing you to stop.  

3.	Upon referral to Kimbe General Hospital, DT was confirmed to have sustained torn hymen, resulting in blood loss.

4.	This is an aggravated form of sexual penetration of a child under the age of 16 years. The statutory aggravating factor charged is that DT was under the age of 12 years at the time of the offence.  She was 11 years old then.  You sexually violated DT by inserting your fingers into her vagina.

5.	This is one of the most frequently committed offences against young children. The trend seems to be accelerating other than declining. Having dealt with many similar type offences in other places in recent times, this is the third of such case I have so far dealt with this year in this Province. There are others still pending before this Court. This indicates that the offence of sexual abuse and violence against children is also prevalent in this Province. This must be a grave concern for the law abiding members in the community.

6.	Young children, you must appreciate, are immature and vulnerable. They can be easily influenced and led astray, intimidated and hurt. A child needs and relies on the adult for security, respect, guidance and general welfare. The future of our communities depends on steady and incorruptible upbringing of our children today.  Abuse and mistreatment of young children in any manner, form or shape will only bring about unwanted physical and psychological harm.  Where the child is sexually violated, there is a greater risk of psychological harm to his or her young mind.  There is also a grave risk in the victim contracting sexually transmitted diseases including the dreaded HIV and Aids. Child abuse and mistreatment in any manner type or form may also invariably result in reduced self-esteem in the child.

7.	The emphasis on sentence must therefore be towards the deterrent aspects of sentencing first; to bring home to the individual at personal level, the grave consequences of his conduct and second; to warn off those with similar impulses that they too meet with severe sentence if convicted.
	
8.	Your case is serious because of the physical and mental harm caused to the young victim. You initially gained DT’s trust and confidence when you offered to accompany her and the other children to the creek.  It was dark.  The children no doubt felt secure with your presence.  They trusted you would safely guide them to and from the bath place. You abused that trust for your own self-centred sexual satisfaction. DT was traumatised when you caused her hymen to rupture. She was no doubt in unbearable pain as evidenced by her crying and heavy bleeding.  You only stopped and fled the scene because of her distressing cry.  

9.	Any psychological harm DT may have suffered cannot be precisely ascertained largely due to lack of in-country facility for such assessment.  But, she was no doubt traumatised. It is also probable that the memories being violated at childhood may haunt her in her adulthood.

10.	The fact that you violated DT in the presence of other children is also a very serious matter.  The children were no doubt shocked and distraught by your uncaring conduct. You disregarded their presence because you were only concerned with your selfish sexual fulfilment. By your foolish and debauched conduct you also corrupted and violated the young minds and innocence of those children present.

11.	Furthermore, your conduct pointed to a dishonest and irresponsible adult preying upon young unsuspecting victims for his own perverted sexual gratification.  Those with such dissolute inclinations should not be allowed to roam freely in the community. The community must be protected against such persons by sending them away to jail for a long time.

12.	In your favour, I have considered all that your lawyer has submitted. Your plea of guilty, remorse and this being your first conviction are factors to take into account. You too, spoke of being married with three children. You have oil palm block and cocoa blocks. In the presentence report, your parents spoke highly of your reliability in providing for the family welfare. They also said what you did was unlike you. Those personal attributes and circumstances point to you previously leading a productive, useful and unblemished past.  This adds value to your plea.

13.	I find the presentence report useful on details of your personal circumstances, your attitude to the offence and the victim and offer to pay compensation. It is balanced with the views from the victim and her parents. The report could have covered more. The community view to your type of offence and your suitability for alternative sentencing to imprisonment namely, probation with community work orders, are matters that should have been included from independent source(s) in the community. The police local knowledge and view on the offence and penalty is also a relevant source.  Hence, the presentence report is not entirely satisfactory.

14.	On the other hand, I find the means assessment report satisfactory. It shows you have some means of income. This makes your offer to pay compensation, genuine. The victim and her parents say they would accept compensation but in addition to any other punishment that the court may impose. Their demand is K4, 000.00 plus one pig valued at K1, 000.00. The offer from you and your relatives is K1, 000.00 to K2, 000.00 in cash.

15.	A court ordered compensation in criminal proceedings under s. 2 of the Criminal Law (Compensation) Act 1991 will depend on a number of factors and must be intended to serve or achieve a specific purpose in sentencing.  Section 3 sets out the following guidelines where the court has determined that the offender should pay compensation in addition to any other punishment imposed -  

a)	the nature and seriousness of the offence;
b)	the degree and nature of personal injury or damage to property suffered by the victim;
c)	factors from the offence or the offender’s attitude that mitigate or aggravate punishment;
d)	the relevant custom on such matters as, the amount, the method of payment and the person entitled to be compensated and the custom which relates to the amount of compensation to the age or life expectancy of the victim;
e)	ability of the offender to pay compensation;

16.	This list is not exhaustive. There may be other considerations such as the prevailing custom in the local community on the retributive or punitive effect of compensation. The attitude of the offender in paragraph 15 (c) above refers to conduct of the offender following the offence such as payment of compensation and the amount prior to arrest, early admission of the  offence and plea of guilty.                      

17.	In this case, you did not readily admit the offence. You denied involvement in the record of interview and upon instructions to your lawyer. On the eleventh hour when the trial was to commence, you changed instructions to plead guilty. Luckily for you, that spared the young victim from further trauma in having to relive her ordeal in court. You also saved the three younger children the trauma of being subjected to overbearing questioning by lawyers and the court on their evidence.     

18.	Your initial denial is consistent with the complaint from the victim and her parents that you had not shown remorse or contrition by apologising or offering compensation. There is also evidence on file that you and your parents initially tried to influence DT’s father to drop the charge. The larger amount of money your father gave him was returned upon request when you were arrested and charged.  

19.	It is thus, clear that you were never remorseful about your conduct and that you never intended to pay any compensation at all. Importantly, there was actual attempt to unduly influence the complainant into dropping the charge. In effect, there was an attempt to bribe the victim and her father not to report the matter to the police. You and your father should have been charged for that unlawful conduct as well.   

20.	People must surely know that anyone who breaks the law or suspected of so doing, must have his day in court irrespective of any out of court reconciliation or compensation payment. A suspected offender cannot simply pay his way out of the course of justice in a criminal case.  Any peace settlement or reconciliation, payment of compensation or restitution following the offence is a matter that goes to the attitude of the offender in mitigating his offence.

21.	This is your first offence and you have pleaded guilty.  Your background also suggests you have tried to live a useful life as a villager especially for the welfare of your immediate relatives.  I take those into account.  

22.	Balancing all the factors for and against you, you are sentenced to 6 years imprisonment with hard labour.  

23.	I have also considered that compensation should be ordered as part of your punishment. So that compensation is more meaningful punishment, I propose to suspend part of your sentence to be served on probation with conditions after you have served 2 years in prison. Because you have served 13 months in pre-trial custody, that term will be deducted. You have a further 11 months before your release on probation.  

24.	I also propose to order community service work so that you are effectively punished in and by the community.  The sentence of the Court is that – 

1.	You are sentence to 6 years IHL.
 
2.	Four years is suspended to be served on probation on the usual terms under the Probation Act with further orders that:

i.	You are to be released forthwith from further incarceration at Lakiamata CS subject to completion of 11 months imprisonment and service of the conviction and suspension of sentence and probations orders on the Correctional Service Superintendent;

ii.	You shall within 48 hours of your release from custody report to the Probation Officer;

iii.	You shall performs 400 hours of unpaid community work in accordance with community work program approved by the Court;

iv.	You shall keep the peace and be of good behaviour at all times;

v.	You shall not take or consume liquor or any form of alcohol or drugs during the period of your probation;

vi.	 You shall attend the Church every weekend for service and worship and submit to counselling;

vii.	Within three months of your release from custody or by 18 June, 2015 you are to reconcile and compensate DT as follows:

a)	Cash payment of K3,00.00,
b)	Traditional payment of one pig valued K1, 000.00.
c)	Traditional payment of one La Tuhali shell money.

viii.	The reconciliation and compensation event will be witnessed by the Probation Officer, Station Commander of Buluma Rural Police Station, village court officials, community leaders and church elders;

ix.	The occasion for reconciliation and compensation shall be recorded and a report filed at the National Court Registry by the Probation Officer for mention at the Call-Over of the National Court in July, 2015;
	
x.	You must not leave Vovosi village or Kimbe or West New Britain Province without leave of the Court.

3.	The Probation Officer shall file a report on your responses and progress every six months with the first report due on 18 September, 2015 and at any other time or interval as the National Court may order;

4.	In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested and brought before the National Court to show cause why you should not be detained to serve the rest of your sentence.

Sentenced accordingly,	

____________________________________________
Public Prosecutor:  Lawyer for the State  
Public Solicitor:   Lawyer for the Accused