State v Makile [2016] PGNC 306; N6507 (1 November 2016)

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CRIMINAL LAW – Sentencing - sexual offence - persistent sexual abuse of a child - section 229D of the Criminal Code Act Chapter No. 262 - prisoner pleaded not guilty - prisoner found guilty of two (2) instances of persistent sexual abuse of a child below the age of 16 years old - prisoner maintained denial and showed no remorse - fitting punishment discussed and applied

State v. Alois Pidik (No.3) (2016) N6296
State v. Danny Tutuvo (2011) N4400
State v. Joe Ngotngot (2016) N6364
State v. Kuyaps Toki Jonathan (2008) N3315
State v. Lui Nicky, Giri Kivovon, Darius Vokina, Benjamin Pidik and Tommy Noah (2016) N6499
State v. Steven Makai (2010) N3914
Thress Kumbamong v. The State (2008) SC1017

1. ANIS AJ: Prisoner Kilalala Makile, on 23 September 2016, this Court convicted you for the offence of persistent sexual abuse of a child under the age of 16 years old, under section 229D of the Criminal Code Act Chapter No. 262 (Criminal Code Act).

2. The Court conducted your sentence hearing at 1:41pm on 10 October 2016. After that, the Court reserved its ruling to a date to be advised.

4. To protect the identity of the child, I will use the initials EV. The Court found you guilty of two instances. The first was in 2012 when EV was 12 years old. The Court found that in the evening on an unspecified date in 2012, at Rapitok village in East New Britain Province, you used a knife to threaten EV. The Court found that you ordered EV into a cocoa patch. There the Court found that you ordered EV to suck your penis and you later penetrated her vagina with your penis. The Court found that after the incident, you warned EV not to inform anyone or else you would cut her with a knife.

5. The second occasion occurred in 2013. The Court found that in the evening on an un-specified date at Rapitok village in East New Britain Province, EV and her niece went out to fetch water at a creek. EV was 13 years old at that time. The Court found that you appeared from the cocoa patch and you used a knife to threaten EV. You forced EV into the cocoa patch. Again, you force EV to suck your penis. You then pushed EV to the ground and the Court found that you penetrated her vagina with your penis. The Court found that you issued similar threats to EV that if she reported you that you would cut her with a knife. The Court found that upon fear of her life, EV did not report the incidents earlier to anyone.

(i) Whether this Court should impose upon you the maximum sentence of life imprisonment?

(iii) Whether you are a suitable person for probation and if so what sort of probationary terms should the Court impose on you.

7. You are 49 years old. You are from Rapitok village in Kokopo, East New Britain Province. You are married and you have seven (7) children. You education attainment is grade 7. You are literate. You were once employed with G4S as a supervisor for 7 years. You left that employment in 2014. Only your mother, who is 80 years old, is alive. You have a brother and a sister but they both passed on.

"I respect the Court and I also respect all of you. My last talk is that from this charge, I am not clear or understand. It is not true. God only knows and is my witness".

10. I have considered the parties' submissions on mitigating and aggravating factors. My findings of them are as follows starting with mitigating factors:

12. The defence submits that you should be sentenced to 14 years imprisonment. The defence also submits that the sentence should be partially suspended. And thirdly, the defence submits that compensation should be awarded against you to restore the relationship between the victim and her family with your family.

13. The prosecution submits that the Court should not award compensation since you still maintain that you are innocent. The prosecution submits that if compensation is to be considered, that the principles laid in the case of State v. Joe Ngotngot (2016) N6364 should be observed. I note that in that case, the National Court held amongst others and I read:

(i) whether the victim's request for compensation is a fitting one for the type of offence committed;

(iii) whether the victim's request for compensation would greatly benefit or assist the victim on matters or issues that have arisen as a direct result of the offence been committed on the victim; and

(iv) whether the prisoner is capable of paying the compensation that is being sought.

14. I will exercise my powers on sentencing pursuant to section 19 of the Criminal Code Act and also following what the Supreme Court has said in the case of Thress Kumbamong v. The State (2008) SC1017. In summary and on point, the Supreme Court therein re-emphasised the National Court's power on sentencing that is provided under section 19 of the Criminal Code Act. The Supreme Court said no tariffs set by a Supreme Court should dictate how a National Court is to or should fully utilise its powers under section 19 of the Criminal Code Act when the National Court is addressing or dealing with sentence.

15. I have considered similar case authorities in this jurisdiction. For this purpose, I have selected four (4) cases that I think are similar and appropriate for consideration. Let me discuss them.

16. The first case is the case of State v. Steven Makai (2010) N3914. The prisoner was charged under section 229D of the Criminal Code Act. He was charged for penile penetration of a minor who was 9 to 10 years old at that time. The prisoner denied the charge. He was tried and convicted of three (3) instances of sexual penetration under section 229D of the Criminal Code Act. The prisoner was about 30 years old at the time when he committed the offence. He was sentenced to 20 years imprisonment less the time he had spent in jail.

17. The second case is the case of State v. Danny Tutuvo (2011) N4400. The prisoner was charged under section 229D of the Criminal Code Act. He was 55 years old at the time when he committed the offence. The victim was 9 years old. The prisoner was not but was regarded as a grandfather to the victim and the family. The prisoner was found guilty of 4 instances of persistent sexual abuse of the victim. The Court found that on two (2) instances, the prisoner used his fingers to penetrate the victim's vagina. And the Court found that on two other instances, he penetrated her vagina with his penis. The Court found that the victim also contracted gonorrhoea and fell seriously ill as a result. The Court sentenced him to 18 years imprisonment less the time he had spent in jail.

18. The third case is the case of State v. Alois Pidik (No.3) (2016) N6296. The prisoner was charged under section 229D of the Criminal Code Act for persistent abuse of a child. The prisoner was the blood uncle of the victim. The prisoner was 53 years old at that time when he committed these offences against the victim. The victim was 11 years old at the time. The Court found that on more than one occasions, the prisoner used force and told the victim to suck his penis before he penetrated the victim's vagina with his penis. The victim said the prisoner forced her into these sexual acts and therefore she wanted the prisoner imprisoned for a long time. The prisoner's mother wanted compensation of K1,000 plus 100 fathoms or shell money. The Court sentenced the prisoner to 20 years imprisonment less the time he had spent in jail.

19. The fourth case is the case of State v. Kuyaps Toki Jonathan (2008) N3315. The prisoner pleaded guilty to the offence of persistent abuse of a child under section 229D of the Criminal Code Act. The prisoner was cared for by the family of the victim. The prisoner was 21 years old at the time of the incidents. The victim was 13 years old. The Court found that the prisoner had on four (4) different occasions, with the use of force and weapons penetrated the victim's vagina with his penis. The victim fell pregnant as a result of these sexual encounters. The Court sentenced the prisoner to 18 years imprisonment less the time he had spent in jail.

20. I find the cases State v. Steven Makai (supra) and State v. Alois Pidik (No.3) (supra), relevant and I think they are good comparable cases to your case. In both these cases, the Court sentenced the prisoners to 20 years imprisonment less the time they had served.

21. As for the case of State v. Danny Tutuvo (supra), I find it equally relevant to your case. But I think its circumstances were slightly serious than the two cases of State v. Steven Makai (supra) and State v. Alois Pidik (No.3) (supra). I say this because the victim contracted a sexual transmitted disease and fell seriously ill. I also note that there was a significant age gap. The prisoner received 18 years sentence, which was slightly lower than the sentences imposed by the Courts in State v. Steven Makai (supra) and State v. Alois Pidik (No.3) (supra).

22. Now I think the case of State v. Kuyaps Toki Jonathan (supra) appears slightly serious compared to your case. But I think that it is somewhat different to a certain extent given that in State v. Kuyaps Toki Jonathan (supra), the prisoner has admitted to the offence which is not the case in your case. But despite that, the Court slapped the prisoner with 20 years imprisonment before reducing it to 18 years after taking into account the youth age of the prisoner and his disadvantaged of own family. This case as well as the other three (3) cite above, goes to show, in my view, that Courts will not be lenient simply because someone has admitted to the crime under section 229D of the Criminal Code Act. I concur with such approaches. In my opinion, I think Courts must continue to give effect, in terms of passing judgments, to achieve the intention of Parliament, which are the people. I note that Parliament had amended the Criminal Code Act to include separate and express provisions for sexual offences committed to children, that is, by passing an Act of Parliament called Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. Parliament has significantly increased the penalty for offences committed under section 229D(1)(6) to a maximum of life imprisonment, which, in my view, means that it expects and Courts must or are obligated to ensure that these punishments are implemented on those found guilty of such crimes. The purpose of course is to ensure that maximum protection is given to the society's children, and to also send a strong message out to society itself that those who violate children's sexual rights and protection will be severely punished. Parliament and Courts are of course, expected to operate independently but at that same time dependently in terms of trying to achieve common goals, which in this case, is imposition of stiffer penalties against persistent child sex offenders.

23. National Courts, as shown in the case law, are fully aware of the new amendment, its purpose and intention as stipulated by Parliament. For example, let me quote a valid remark made on this point by Justice Kandakasi in the case of Kuyaps Toki Jonathan (supra). His Honour said and I read:

The Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 introduced this provision amongst many others by way of an amendment to the then existing law. Prior to the amendment, there were negligible penalties prescribed for some of the very serious sexual offences against children, women and girls. The amendment has thus, introduced new categories of sexual offences and increased the penalties with the worst case scenarios attracting life imprisonment. Parliament introduced these changes in response to a worldwide call for the protection of children, young girls and women from sexual predators, namely, some self centred male offenders. It came at a time when the offences against our women, girls and children were prevalent and the past sentences seemed not to be deterring would be offenders.

24 I note that this Court has already found you guilty of two (2) instances of sexual offences committed under section 229D of the Criminal Code Act, on victim EV. The Court has found that on both instances, you had sexually penetrated victim EV. This therefore and pursuant to section 229D sub-sections (1) & (6), makes you liable to imprisonment for life.

(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent sexual abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(6) If one of more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.

26. I note that on both occasions of sexual penetration, the Court found that you had penetrated victim EV both through her mouth and vagina. The definition of sexual penetration under section 6 of the Criminal Code Act is and I read:

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

27. So in total, there were four (4) instances of penetrations by you on victim EV, that is, two (2) penetrations occurred on each occasion.

28. But having said all that, I do not find that the offence you have committed should warrant life imprisonment. I say this based on the case law some of which I have referred to above in my judgment.

30. I will impose on you as a starting point 20 years imprisonment. I find that the offence you have committed is serious and warrants a higher sentence. I find that the aggravating factors outweigh the mitigating factors. Because you have not shown any remorse for your actions and you continue to deny the offence for which you have been convicted of, I find that it is appropriate that I should add further time on top of the 20 years. Your actions, in my opinion, demonstrate that you have no regard for the law and also that you are a type of person that should be kept away from the society for as long as possible within the reasonable confines of the law. The danger I see here is that, given your demonstrated lack of respect for the law, it is possible that you may repeat the same offence. For these, I will add an additional 5 years to your sentence making it a total of 25 years imprisonment.

31. I did not find any of the mitigating factors convincing enough for me to make any deductions from the 25 years. I make no deductions in that regard.

32. You have been recommended for probation. However, I do not find you suitable for probation for all the reasons I have stated above in my judgment. Such persons like you must be kept away from the society and in particular from young children.

33. I also refuse to make any order for compensation payment. The first reason is because of the fact that you have not shown any remorse and you still maintain that you are innocent [See case: State v. Lui Nicky, Giri Kivovon, Darius Vokina, Benjamin Pidik and Tommy Noah (2016) N6499]. The second reason is that I must take into account the victim's wish because it is, in my opinion, of primary importance [See case of State v. Joe Ngotngot (supra)]. Victim EV is the one who is affected and who will now have to continue to live her young life with this horrendous experience. Based on the pre-sentence report, victim EV said you and her father are related like brothers. She said that you had by force and with the use of weapons, had sex with her three (3) times against her will. She said you had threatened her after these incidents. She said she does not want any form of compensation but she wants you to be imprisoned.

34. In regard to the first issue that is, Whether this Court should impose upon you the maximum sentence of life imprisonment? my answer is "no". In regard to the second issue that is, If not, what would be the fitting punishment for you? my answer is "the fitting punishment for you is 25 years imprisonment with hard labour". And in regard to the final issue that is, Whether you are a suitable person for probation and if so what sort of probationary terms should the Court impose on you my answer is "I have found that you are not suitable for probation so the issue is un-attainable".

35. You were arrested on 23 July 2014 and you have been in custody since. I note that the Court's power to deduct pre-custodial sentence is discretionary under section 3(2) of the Criminal Justice (Sentences) Act 1986. In this case, I will exercise my discretion and allow the deduction.

Length of sentence imposed	25 years
Pre-sentence period in custody to be deducted	2 years, 3 months and 8 days
Amount of sentence suspended	Nil
Time to be served in custody	22 years, 8 months and 23 days
Place of custody	Kerevat Correctional Service

Orders Accordingly
________________________________________________________________
Office of the Public Prosecutor : Lawyer for the State
Office of the Public Solicitor : Lawyer for the Prisoner

National Court of Papua New Guinea

State v Makile [2016] PGNC 306; N6507 (1 November 2016)