State v Frank [2017] PGNC 92; N6732 (13 April 2017)

N6732

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1171 OF 2013

THE STATE

V

PETER FRANK

Porgera: Auka AJ
2016: 21^st June and
2017: 12^th & 13^th April

CRIMINAL LAW – Criminal Code – Section 229 A (1) – Sentence- guilty plea- Two counts of sexual penetration – Victim female under 16 years – Offender aged 44 years – No Injuries – Parties married – Five (5) years on each count to be served concurrently. Further ordered the remaining term of five (5) years wholly suspended on conditions.

Case Cited:
The State v. Penias Mokei (2004) N2635
Lawerence Simbe v. The State (1994) PNGLR 38
The State v. Chadrol (2011) N4648 Batari J
The State v. Asupa (2011) N4540 Kawi J
The State v. Noel (2012) N4664 Cannings J
The State v. Tangi (No.3 [2012] N5075 Lenalia J

Counsel:

Mr. Philip Tengdui, for the State
Mr. Robert Bellie and Jeffrey Kolowe, for the Accused

DECISION ON SENTENCE

13^th April, 2017

1. AUKA AJ: An Indictment was presented by the state against the accused on 21^st June, 2016. The State charged the accused with 2 counts of sexual penetration of victim Freda Frank a child under the age of 16 years pursuant to section 229 A (1) of the Criminal Code Act as amended. The accused pleaded guilty to the two (2) Counts of Sexual Penetration.
   
2. The brief facts of the case are as follows; that on the 26^th of April, 2013, the accused tricked the victim, a 15 year old school girl into accompanying him to Laiagam on a PMV and return as he was paying the fares. Victim went along with him thinking that they would return that same afternoon. When they arrived at Laiagam it got dark and victim was unable to make the return trip. Accused then lured her into one of his brother’s family house and stayed overnight. In the night accused forcefully sexually penetrated the victim. The next day 27^th April, 2013 the accused once again lured the victim into his room at his work place at Maip Covec Camp and sexually penetrated her. From there she was rescued by her relatives. The accused knew that the victim was under the age of 16 years at the time he sexually penetrated her. She was 15 years old at that time.
   
3. Upon the request of Mr. Bellie of counsel for the accused the court directed the Probation Officer based in Mt. Hagen to prepare and file a Pre-Sentence Report by 3^rd October, 2016. The Pre-Sentence Report was not available in October, 2016. The report was also not available at the time of sentence.
   
4. On 12^th April, 2017 following the parties agreement that the Court should proceed to hear the accused’s case without the Pre-sentence Report, Allocatus was administered to the accused. On his statement on Allocatus, the accused said sorry to the court for travelling a long distance to come and deal with his case. He said sorry to the complainant and her family. Also he said sorry to his own family. He said he is 44 years old and he worked on main highway roads as road supervisor until his arrest. He has 3 brothers and 1 sister. His parents are still alive. He married his 1^st wife and had 3 children from that marriage. He married his second wife who is the victim in this case. Their 1^st child was miscarried. The second born is 1 year 3 months old. He said he supports the family well including the victim. He said he has never been in trouble before. This is his first time. He said both the victim and himself agreed to be married but the parents didn’t agree and so they took the matter to police and he was charged. He has asked the court to have mercy on him.
   
5. The maximum penalty for this offence under S.299A (1) is 25 years imprisonment. However each case must be considered on its own facts and circumstances.
   
6. Mr. Kolowe submitted and urge the court to take into account in accused favour the following mitigating factors;
   
   1. That accused pleaded guilty to both counts and saved courts time and resources;
   2. Accused has expressed genuine remorse;
   3. He is a first time offender;
   4. He is a person of prior good character;
   5. The victim in this case has become his wife and they have a 1 year 2 months old child;
   6. He is the only bread winner in the family;
   7. He surrendered to the police straight after the trouble and;
   8. He takes care of the victim and is living together with him happily.
      

Mr. Kolowe submitted that the accused and the victim are now married and are happily living together and as such he submitted that any sentence to be imposed should not cause any break down to the newly established family unit. He submitted and urge the court that any custodial term imposed should be wholly suspended with conditions.

7. Mr Tengdui of counsel for the state submitted that the accused lured the victim to sexually penetrate her two (2) times. There was big age difference at the time the offences were committed. There was no consent at that time. The offence is a prevalent offence. The victim in this case suffered no injuries. Mr Tengdui referred the court to the case of Penias Mokei (2004) N2635 and The State v. Tony Ilong & Philip Sovi (2008) N3694 and urged the court to consider the age difference factor in considering the appropriate sentence. He submitted that a sentence of 8 to 12 years would be the appropriate penalty for each count. And he submitted that as the offence were committed in a close proximity setting; the sentence should be made concurrent. He submitted that to suspend part or whole of the term is a discretionary matter under S.19 of the Criminal Code.
   
8. There is a serious statutory aggravating factor involved in the present case. And that is the victim was young at the time she was sexually abused. Who in his right mind should want to sexually abuse young children like the victim in the instant case. According to subsection (1) of the section, the prisoner could be sentenced to the maximum term of 25 years.
   
9. There is a second aggravating factor in this case and that is the great age difference between the prisoner and the victim. To sexually penetrate a young child like the victim in this case is nonsensical because the prisoner was of older age of 44 years and victim was a 15 year old girl. It is also against the law.
   
10. It is an established principle that the maximum penalty should be reserved for the worst type of case. In my view this case is not a worst type.
    
11. It is also an established principle in sentencing that each case should be considered on its own facts and circumstance – Lawrence Simbe v. The State [1994] PNGLR 38.
    
12. Also there are certain considerations which should be considered as a guide to sentencing offenders on charges of sexual abuse under these Act, namely the Criminal Code (Sexual offences and crimes against children) Act 2012. These considerations were set out by His Honour Justice Cannings in the case of The State v. Penias Mokei (No.2) N2635 and have been considered and applied by Judges for sentencing in respect of child sexual abuse cases. I adopt the consideration and have applied the appropriate ones to the circumstance of the instant case.
    
13. On sentencing trends for charges of sexual penetration of victim’s under 16 years, sentencing vary from case to case depending on the facts of each case. I have referred to a number of cases as guide to considering the appropriate penalty;
    
    1. In The State v. Chadrol (2011) N4648, the offender pleaded guilty to one count of sexual penetration of a girl under the age of sixteen (16) years, she being his girlfriend, 13 years of age and the offender being 17 years of age at the time of the offence. The sexual penetration was consensual. In the circumstances of the case a sentence of 6 years imprisonment and was wholly suspended with conditions.
       
    2. In The State v. Asupe (2011) N4540, the accused pleaded guilty to one count of sexual penetration of a girl under the age of 16 years who was his daughter in law. The accused abducted the victim and the two took off for the forest where they spent several nights together with the accused sexually penetrating her as he pleased. He was sentenced to 12 years.
       
    3. In The State v. Noel (2012) N4664, the accused pleaded guilty to sexually penetrating a nine year old boy, a close relative, in a rural areas close to their village. His Honour Cannings J imposed a sentence of 9 years. The pre-sentence period in custody was deducted and because of the willingness of the offender’s family and victim’s family, who are related, to seriously attempts a customary reconciliation of the matter, six (6) years of the sentence was suspended subject to payment of K4, 000.00 compensation and a formal reconciliation, which was to occur within six months after release from custody.
       
    4. In The State v. Tangi (No.3) [2012] N5075, the offender aged 66 at trial was found guilty on a plea to one count of sexually penetration of a girl, who was 9 years old at the time of the offence, with circumstances of aggravation. His Honour Lenalia J imposed a term of 9 years imprisonment, 5 years suspended on condition that the offender pay a further 100 fathoms of Tolai shell money to the victim and her mother. The balance of 4 years to be served cumulatively upon the sentence of Sexual Touching currently being served and upon release to be on recognisance to be of good behaviour for 2 years.
       
14. Sexual exploitations and abuse of young children are considered very serious. That is why parliament has made the commission of any offences against young children very serious.
    
15. As I said in the prisoner’s case the victim was a young girl under the age of 16 years. She was in no position to appreciate sexual penetration with anyone, including the prisoner. What the prisoner did to her was very serious violation of her right as a person.
    
16. I consider all the mitigation factors as well as the aggravating factors submitted by both counsels. I have also considered what the accused said in Allocatus and I have found that all the mitigating factors have prompted me to give special consideration and accommodation in the sentence. The accused have taken up the responsibility for his action. He is married to the victim and has a child and are happy living together.
    
17. Whilst the Court is of the view that the penalty that is to be imposed must reflect the concern of the community as well as the reflection of the seriousness of the crime of sexual abuse committed upon young children, that view must be effected on the peculiar facts and circumstances of each case..
    
18. In view of the maximum penalty for the offence, the aggravating and mitigating factors of the case and the trends of sentences for charges of sexual penetration of victim under the age of 16 years, I impose a sentence of five (5) year IHL on each count. The Court Orders that the sentences be served concurrently. The remaining term of five (5) years is wholly suspended on condition that he shall keep the peace and be of good behaviour for 2 years.
    

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