State v Kultiye [2017] PGNC 349; N7033 (12 December 2017)

N7033

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 663 OF 2014

THE STATE

V

MARKSON KULTIYE

Kimbe: Miviri AJ
2017: 24^th Nov 8^th 11^th Dec

CRIMINAL LAW – PRACTICE AND PROCEDURE – S229A CCA sexual penetration of child under 16 years old- victim 15 years old-prisoner 27 years old- early admission to police-early guilty plea-victim saved-prevalent offence-PSR and MAR ordered-favourable to prisoner-prevalent offence-planning involved-victim purposely intoxicated-sexual penetration- vaginal injuries sustained by victim-bleeding stitched-custodial term appropriate.

Facts

The prisoner was involved in a relationship with the victim who was 15 years old at the time of sexual penetration. He gave her alcohol to drink after which he penetrated her vagina with his penis and had sexual intercourse with her. The matter was reported by the victim to her parents.

Held
Guilty plea early admissions to Police.
27 year old single man
Relationship with victim 15 year old
PSR MAR ordered inappropriate.
Custodial term appropriate.

Cases:
State v Peter Lare [2004] PGNC 218; N2557
State v Kutetoa [2005] PGNC 137; N2814
State v JB [2007] PGNC 66; N3224
Thress Kumbamong v The State (2008) SC1017
State v Chadrol [2011] PGNC 211; N4648
Sabiu v State [2007] PGSC 24; SC866
Yalibakut v State [2006] PGSC 27; SC890

Counsel:

1. Bray, for the State

D Kolowei, for the Defendant

SENTENCE

12^th December, 2017

1. MIVIRI AJ: This is the sentence of a 27 year old man who had sexual penetration of a 15 year old girl after she was drunk from alcohol.
   

Short facts

2. The accused was a driver in a PMV bus. He took the victim MK and another to Kumbango oil Palm Plantation on the 31^st December 2013 where they consumed coffee punch alcohol and she became drunk as a result. He removed her clothes and penetrated her vagina with his penis and had sexual intercourse with her. She was 15 years old at that time.
   

Charge

3. The accused was indicted under Section 229A (1) of Criminal Code for engaging in sexual penetration of a child under 16 years old the penalty was imprisonment for 25 years simplicitor. And life imprisonment where the child was under 12 years old or where there were factors of trust, authority and dependency pleaded shown out by the evidence.
4. She was 15 years old and therefore the maximum penalty of 25 years imprisonment covered the situation. Comparably this offence was the more serious because section 229E abuse of trust, authority and dependency had the age of the child as between 16 years and 18 years and the penalty of 15 years.
   

Allocutus

5. Accused pleaded guilty to the charge preferred. In allocutus the accused said, “I want to say sorry for the time that I have wasted of the court since 2014 when my case came to court. I did not know the age of the victim. It is against law I did not know we had a long relationship we were thinking of marriage, she was young and I was also young. I am only one here in Kimbe. I have two buses no one to take care of them after. I ask court for mercy to serve sentence outside. Once again I am very sorry to do this.”
   

State case

6. He stated that he did not know the age of the victim but the evidence before court her Birth certificate dated the 10^th March 2017 established that she was born on the 8^th August 1998 and therefore 15 years old at the time of sexual penetration on the 31^st December 2013. Affidavit of the father Joe Kaiya also established details confirming the age. Prisoner sensibly did not contest and pleaded guilty.
   
7. Medical affidavit attaching a medical report of examination on the 31^st December 2013 at 10pm of MK female aged 15 years old dated the 10^th March 2014 by Health Extension Officer Kapakeu Bartholomew showed suturing of the perianal tear with 2 stitches and spermatozoa seen. Antibiotics were administered together with pain killers. Which also explained the extensive bleeding per vagina attended to by Vanessa Koro who had to change MK’s clothing and bedding with new ones each time because of the blood flow a number of times. MK was carried and left in the shower by prisoner who simply drove off leaving her there. And it befell Vanessa Koro to care for her until her father Joe Kaiya came with police and took her and then to the hospital where she was treated.
8. Prisoner stated that there was a relationship between them and he had picked her up Mk, with another girl SW at Morokea in his bus and drove to a bush area at Kumbango depicted by the sketch plan drawn where they consumed alcohol mixed with coke and coffee punch after which he had sexual intercourse with her. His guilty plea to the charge saved him and also the victim from coming to court and reliving the crime before strangers in an open court room.
9. She was injured as a result of the sexual intercourse and had to be treated at the hospital with sutures. And that she was left abandoned by the prisoner at Kumbango where she was attended to by one Vanessa Koro a 13 year old girl. She was clearly hurt and bleeding from the description given by this witness as to changing her clothes and the bedding where she lay because of the bleeding. Further this witness stated that MK was strongly affected by alcohol and she had to carry her into the shower to wash the blood and change her. And she had to go to the store nearby to purchase sanitary napkins Stayfree pad to put to stop the bleeding.
   
10. Prisoner described that both were girl and boyfriend but his behaviour did not show this when he did not try to help her to seek medical attention for the bleeding that occurred after sexual penetration. He left her and then went. Had it not being for the young girl 13 year old Vanessa Koro there would have been serious consequences notably because of the heavy bleeding that was noted.
    
11. And then the prisoner was pursued by the father with the help of his PMV crew and drivers to apprehend. Which elevated to confrontation in which the prisoner was himself hospitalized from injuries. And there may have been more violence had it not being for the father of the victim who persisted in bringing of the prisoner to the police. To his credit the prisoner submitted himself to the process of law and readily admitted to police when he was questioned. And he maintained that in court pleading guilty to the charge. In so doing he saved the girl MK from coming before the court and testifying reliving that experience over and again. In accordance with Yalibakut v State [2006] PGSC 27; SC890 he should be accorded benefit of that fact and this I do here. He was 27 years old she was 15 years old and so at the time of the offence, there was an age gap of 12 years difference. In Yalibakut’s case the Supreme Court substituted the original 17 years for 14 years on a guilty plea to sexual penetration of a girl under 16 years old. She was 11 years old and he was 40 years old. I am mindful and do take account of all the relevant factors in favour of the prisoner which I weigh out with those against him in arriving at a proportionate sentence fitting his case.
    

Presentence and MAR report.

12. In this regard also defence counsel by application secured a presentence report which was sourced from him, the victim, elder brother of prisoner and the parents of the victim. The latter wanted compensation in the sum of K20, 000 and victim wanted K 15, 000 because she did not know the prisoner and never befriended him contrary to his assertions. Prisoner could only afford K 2500 and not more than that which was clear that there was no agreement in compensation including the fact that only K5000 was allowed under the Criminal Compensation Act. So an alternative to imprisonment was not realistic and workable given this back ground. Further the facts and circumstances of the offence were not proportionate given its gravity. There was disagreement as to whether or not there was friendship between prisoner and victim. In line with Yalibakut’s case, I give him the benefit of doubt on it.
    
13. But what cannot be ignored here is that as the age of the child victim came down the sentence against an offender increased. In State v Peter Lare [2004] PGNC 218; N2557, 12 years IHL was imposed upon a 40 year old prisoner who pleaded guilty to sexual penetration of a 10 year old girl repeatedly over time. In State v Kutetoa [2005] PGNC 137; N2814, a 39 year old prisoner was sentenced to 17 years in jail for sexual penetration of a 10 year old girl. He had pleaded guilty to the charge under section 229A of the Code. In yet another case before this court in Kokopo State v JB [2007] PGNC 66; N3224 he had persistently abused his 13 and 15 year old daughters he was sentenced to 26 years IHL but reduced to 20 years on the totality principle. In the State v Jonathan [2008] PGNC 31; N3315 persistent sexual abuse of a 13 year old girl who became pregnant drew18 years IHL for persistent sexual abuse contrary to Section 229D the penalty provision had the maximum sentence of life years similar to Section 229A.

Aggravation sentence reflected

14. What was underlining was that where there are aggravating features of the case whether under section 229A or section 229D or any other section under that division, the sentence will draw out that fact. Here she was injured an aggravating feature of the case in that she had tears to her vagina for which she was hospitalized and had sutures there. It could not be ignored and nor reflected in the sentence that was passed. Aggravation increased and mitigation lowered to arrive at a just and proportionate sentence in each case. Thress Kumbamong v The State (2008) SC 1017 made it clear that the sentencing discretion is never fettered or dictated in a certain direction or position. All matters raised in a case must be considered to the full extent due in law relevant with all other matters that are before it to arrive at a just sentence. The wishes and expression of the victim are part and parcel of and together with all other matters that are placed before court will be given due weight according to law, the facts and circumstances to arrive at a just sentence in law. Sentencing is not dictated or tied down by tariff or range but dependent on the facts and circumstances and tariff or range will be part of the process and will be considered on the level due to it. In Sabiu v State [2007] PGSC 24; SC866 an appeal to the supreme court by the Prisoner who was sentenced to 17 years IHL for pleading guilty to sexual penetration of a 6 year old boy anally The boy suffered bruising, bleeding and pain as a consequence. He was the nephew of the prisoner; mother of the victim his sister. He explained that he committed the offence because he was not paid part of the bride price. In dismissing his appeal against sentence the court remarked that the sentence was not out of reasonable proportion to the crime of sexual penetration of a minor under 12 years old.
    
15. Simply put, “To impose a sentence that as much as possible meets the seriousness of the offence, it is useful to start with the maximum prescribed penalty in mind, and next consider the circumstances of the particular case in line with the current sentencing tendency of the court for similar type offences. The use of a sentencing 'scale' or 'range' as a guide in this exercise is preferred because 'starting points' gives the impression of an inflexible sentencing option. It also makes sense to use a structure of ranges of sentences related to the variations of the particular offence most commonly encountered in practice. A sentence that falls outside the permitted range may on appeal be considered inordinately low if it is below the lower range or manifestly excessive if it is over the top range.” State v Chadrol [2011] PGNC 211; N4648.
    
16. Applying that here the maximum penalty for the offence here is 25 years imprisonment. And the particular circumstances of the offence depicted above it could not be ignored that the use of alcohol the drive to a bush area unpopulated , the injuries that came out as a result and of leaving the victim at the discretion of a 13 year old Vanessa Koro who had to cope and make ends meet to have the victim survive from the extensive bleeding enough for the father and police to come rescue and take her to the hospital to be treated medically for suturing of the perianal tear with 2 stitches in total cannot be ignored and swept aside as that would defeat the whole purpose of that law and Division 2A. – Sexual offences against children. Children are entitled to the full protection of the law under the Constitution section 37 which is reinforced by this Division of the Criminal Code and the facts and circumstances depict that here. As a court of law it is my duty to uphold and I will do that here.
    
17. Further law and order problems were looming but put to rest quick actions of the father of the victim and the prisoner submitting to the law and now his plea. It is not a light matter and from what is set out above the minimum sentence is in the range of 14 years at the lowest to the highest of 20 years imprisonment sexual penetration simplicitor section 229A which is the most commonly encountered in practise some of which are set out above. Therefore to move away from that would be outside the permitted range and may on appeal be considered inordinately low if it is below the lower range or manifestly excessive if it is over the top range. There is therefore a delicate balancing act to draw the line as to what is an appropriate sentence befitting of the crime here including consideration of alternatives to imprisonment which has been fully canvassed here and considered. In the event of trial you were looking at the possibility of 19 years or more. You pleaded guilty the sentence therefore here is 15 years IHL and I so impose that upon you. I deduct any time in custody forthwith. I order that the balance shall be served in jail.
    
18. 15 years IHL is the sentence of the court upon you.
    
19. I further order that your bail moneys be refunded forthwith.
    

Orders Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant