State v Gumanawabu [2015] PGNC 306; N6842 (16 October 2015)

N6842

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1249 of 2015

THE STATE

V

YARUBE GUMANAWABU

Losuia: Injia, CJ
2015: October 12-16

CRIMINAL LAW- Sentence- Sexual offence - Sexual penetration of girl under 12 years- Offence on the increase even after Parliament introduced heavy sentences for sexual offences involving young female children - Need for punitive and deterrent sentence- Need for consistency in sentencing amongst Judges - Appropriate sentence- 15 years imprisonment- Criminal Code , 229A (1)(a) and (2)

Cases Cited:

Sabiu v The State (2007), PNGSC24
William Muma v The State [1995] PNGLR 161

Counsel:

T Hai with H Roalakama, for the State
A Raymond with C Kambua, for both Accused

16^th October, 2015

1. INJIA, CJ: 1.The prisoner pleaded guilty to one count of sexual penetration of a girl under the age of 16 years under s 229A (1) (a) of the Criminal Code. The victim in this case is a small girl under the age of 12 years, 11 years and 5 months at the time of the offence to be precise. Pursuant to s 229A (2), the maximum sentence for sexual penetration of a girl under twelve years is imprisonment for life.

2. The facts in brief are that the prisoner is a young man aged 20 years. The victim is a small girl of just over 11 years of age and a grade 3 student at one of the primary schools in the area. The victim is known to the prisoner. The prisoner's version of events is found in a separate statement he gave to police and also in his Record of Interview which are contained in the District Court depositions. This prisoner's version of facts of what happened is this. On the afternoon of Friday19^th September 2014 at around 8pm in the evening, the prisoner approached the victim at her house and asked her to take him to the residence of another person. She agreed to take him there. He held her hand and they walked past that person's house and into the nearby bush. He asked her to have sex with him and she agreed. She asked for K27.00 which he gave to her. She undressed herself and allowed him to have sex with her. He did not force her to have sex with her. He tried to push his penis into her vagina and she cried so he pulled his penis out of her vagina. She returned the K27 to him and left for home.

3. The victim's version differs from the prisoner's version in that she says he grabbed her wrist and used his right hand to close her mouth to prevent her from calling for help. She refused to have sex with him when he asked her. He threatened to kill her if she did not let him have sex with her. When he was having sex with her, her father called out for her and he fled from the scene. She accompanied her father to the house and reported to him what had happened.

4. The State did not offer any challenge to the prisoner's version of what transpired with regard to the request for money to have consensual sex, that no force and threat was used to overcome any resistance and all the other things she is said to have done to facilitate sex with him. In that situation, the law compels me to accept the version of events that is most favourable to the prisoner subject, of course, to the bounds of logic and reason.

5. The medical evidence shows that the victim was presented at the Losuia Health Centre for medical examination shortly after the incident and examined. The victim appeared traumatized, anxious, shaky and speechless. There were no bruises on her body or tears on her clothes. The vaginal wall was bruised and tender and there was evidence of bleeding and the hymen freshly lost. There is no evidence that she was examined and treated for any sexually transmitted disease through the act of sexual penetration.

6. Counsel for the prisoner submits that having regard to the mitigating factors and balancing those against the aggravating factors that exist in the present case, an appropriate sentence would be one in the range of 5 - 10 ten years with a portion of the sentence suspended on conditions. Those mitigating factors include the prisoner’s prior good character, no prior convictions prior to this week's criminal sittings at Losuia, his early cooperation with the police in readily admitting the offence to them, early admission to the District Court at the committal proceedings, his guilty plea which saved this court's time and expense and saved the victim from reliving the traumatic experience of giving evidence at trial, and expression of genuine remorse before this Court. There were no weapons used, no threats and no physical assault over and above the act of sexual penetration. There is no evidence of any sexually transmitted disease as a result of the penetration. There was at least an offer of compensation to restore broken relationship between the two families that was rejected by the victim's parents.

7. The pre-sentence report reaffirms most of the mitigating factors and aggravating factors and recommends a partly suspended sentence with conditions. The report also mentions an attempt made by relatives of the prisoner to offer compensation for the crime to the victim's relatives which the victim's relatives rejected.

8. Counsel for the State submits this offence is a serious offence that must be visited with an appropriate punitive and deterrent sentence in the range of 15 to 18 years imprisonment. This range is consistent with the range of sentences imposed by the National Court and the Supreme Court for offences involving small girls under the age of 12 years..

9. Counsel for the State in his submissions did not refer to any aspect of the circumstances of the crime that aggravated the crime that warranted custodial sentence in the range suggested. However, these can be elicited from the material before me and reasonable inferences drawn from them. The victim is a small under-age girl that was not ready for sexual intercourse. The prisoner went looking for her at her house. Prior to this he had visited the house and preyed on her. She was led away from her house whilst she was enjoying time with her other small sisters. The crime was no doubt pre-planned. She was paid money as an inducement for sex. Whether she asked for the money or the prisoner gave the money of his own will is irrelevant and immaterial. The fact remains the money was given by way of an inducement for sex and this no doubt corrupted the mind of this small girl. It is also immaterial in law that the small girl consented to the sexual penetration and did whatever she is said to have done to facilitate the sexual penetration. In the process of penetration she suffered trauma, vaginal injuries, stress and anxiety. These physical and non-physical injuries are confirmed by the medical report. On the prisoner's own version of events, she cried during penetration suggesting the penetration was forced upon her and she experienced pain and trauma. She continued to suffer anxiety, depression, degradation in the eyes of her family and the community at large. She also lost her virginity as a result of the penetration. The memories of this traumatic experience will no doubt remain in her memory for the rest of her life. The victim impact statement from the victim’s parents point to some early signs of these lasting impact on the victim's behaviour. It is these aggravating factors that call for a firm punitive and deterrent sentence.

10. With regard to the seriousness of this offence, the punishment for the offence of sexual penetration of underage girls is amongst a series of offences that were enacted by the National Parliament some years ago in a direct response to the community's expressed need to protect small children from the sexual exploitation of men that were increasingly becoming prevalent in this country. Parliament prescribed stiff penalties for such offences. Despite the increase in the penalties for these types of offences and the imposition of stiff penalties by the National Court in cases since the new penalties were enacted, those sentences have not deterred these offences. As evident from this and other cases that have come before this Court from other parts of this country, the offence continues to rise in frequency, in number and in gravity. For this reason, this Court needs to review the sentences that it is imposing with a view to imposing even tougher punishment for these kind of crimes.

11. In offences involving sexual abuse of young children, particularly young under-age girls, the punitive and deterrent purpose of sentencing are the paramount considerations that should guide the exercise of sentencing discretion in those types of cases. Mitigating factors and extenuating circumstances that are personal to the prisoner and the personal rehabilitative purpose of sentencing should be accorded proper weight but not to the extent that they override the punitive and deterrent purpose of sentencing. A suspension of a part of the sentence is an exercise in leniency that has its place if a case is made out for it but it should rarely be applied in cases where it is of little or no purpose. For instance, if the offender is a young person, suspension of the whole or part of the sentence may be appropriate because he is given the chance to reform his criminal behaviour.

12. The maximum penalty for this offence is imprisonment for life. Given the seriousness and prevalence of this offence and the need to protect young children, perhaps Parliament could have prescribed a minimum sentence from which the Court would start. In the absence of such minimum sentence, this Court constituted by different judges, need to be consistent with our sentencing patterns in sexual offences involving small children and maintain an unspoken minimum starting point and adjust the sentence upwards depending on the aggregate balance of extenuating circumstances and mitigating factors on the one hand and aggravating factors on the other.

13. It appears from decisions of this Court and the Supreme Court, some of which have been cited to me by both counsel, that for punishment for an offence under s 299 A (1) (a) and (2), in a guilty plea, sentences range from 5 years to 20 years with 8 to 12 years being the median range. However, in
Sabiu v The State (2007), PNGSC24, the Supreme Court suggested a starting point of 15 years imprisonment. These sentencing patterns offer a useful guide as to the type of sentence that is deemed appropriate for sexual offences committed against young children.

16. There is information before me that shows that the prisoner's relatives made an attempt to pay compensation to the relatives of the victim for the crime. The offer was refused outright by the victim's relatives and rightly so in my view. Compensation is not appropriate in cases where young children are the victims of sexual crimes for obvious reasons that I have continuously pointed out over time commencing with my decision in William Muma v The State [1995] PNGLR 161. That young children of tender age do not stand to benefit from such payments because they are incapable of understanding and appreciating the purpose and value of such payment; such payments could be used by offenders to pay for crime and escape real punishment; and, that such payments offend the principles of humanity; are amongst the reasons why compensation is and should not be allowed in such cases where the victims of sexual crimes are young children.

17. I balance all these factors, those factors against the mitigating factors and extenuating circumstances of the offence referred to me by counsel for the prisoner against the aggravating factors. I consider a custodial sentence to be appropriate. I consider the circumstances of this case do not warrant the imposition of the maximum penalty for this offence.

18. I consider a lengthy custodial sentence, that is consistent with the sentencing trend for similar offences imposed by the Courts, to be appropriate to punish the prisoner and serve as a deterrent for others. The prisoner's criminal mentality in preying upon this young girl, corrupting her mind with payment of money and inflicting the injuries and indignities that she suffered at his hands must be appropriately punished. The sentence should also serve as a lesson and deterrent for other like-minded men, young and old, that may be out there in the community bent on exploiting young children for their selfish interests and disturbing and interfering with the enjoyment of personal liberties, freedom and the peace that people here enjoy.

19. At the same time, I also consider that the prisoner is a young person who stands to learn from a suspension of a part of the term of punishment and I intend to incorporate suspension as part of the custodial sentence.

20. In the final analysis, I consider that a sentence of 15 years imprisonment is appropriate and I impose the same. I suspend 3 years of that sentence on the condition that he enters into his own recognizance without surety to keep the peace and be of good behaviour for 3 years after he is released from prison. Of the remaining 12 years, I deduct 1 year 4 months in pre-trial custody. He will serve the balance of 10 years 8 months.

21. This sentence is made cumulative to the sentence I imposed on him yesterday here in Losuia in relation to the offence of stealing.

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

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