State v Togie [2018] PGNC 225; N7304 (21 June 2018)

N7304

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 743 OF 2016

THE STATE

V

ROBERT TOGIE
Kokopo: Susame, AJ
2018: 15 May & 21 June

CRIMINAL LAW – Offence - Sexual Penetration of Girl Under 16 Years of Age by First Cousin –S 229a (1) (3) Criminal Code (Sexual Offence and Crimes Against Children) Act 2002

CRIMINAL LAW – Sentence - Sentencing Considerations – Early Plea - Existing Relationship Of Trust And Dependency – Offender And Girl Are Close Cousins - Use Of Offensive Weapon & Threats – Offence Against Values & Norms Of Tolai Tumbuan Society & PNG Traditional Society – Victim 13 Years Of Age – Offender 19 Years Old And A Youth

CRIMINAL LAW - Sentence – Sentencing Guidelines – Prevalence Of Offence –Need For Tougher Sentence To Reflect Society’s Disapproval and Abhorrence Against Such Heinous Crime - Sentence Imposed Is For Purposes Of Deterence And Rehabilitation - 15 Years Head Sentence Years Accepted (The State V. Biason Benson Samson (2005) N2799 Followed) – 8years Sentence Imposed With Rebate Of 2 Years 5 Months 9 Days For Period In Custody

Cases cited:

Golu Golu v The State [1988-89] PNGLR 653,
Lawrence Hindemba v The State (1998) SC593
Maima v. Sma [1972] PNGLR 49,
Robert Solomon v The State [2007] PGSC 9; SC871.
Sabiu v State [2007] PGSC 24; SC866
State v Taunde [2005] PGNC 152; N2807
The State v Tommy Koi (No.2) N7176)
The State v Mokei (No 2) [2004] PGNC 129; N2635
The State v. Biason Benson Samson (2005) N2799

Counsel:

Mr. L. Rangan, for the State
Miss. PulaPula, for the prisoner

JUDGMENT ON SENTENCE

21 June, 2018

1. SUSAME AJ: You appear before this court to receive your sentence as a prisoner after you pleaded guilty on arraignment to an indictment charging you for sexual penetration of a girl under the age of 16 years contravening section 229A (3) of the Criminal Code (Sexual Offence and Crimes Against Children) Act 2002 on 15^th May 2018. The indictment also pleaded circumstances of aggravation in that there was an existing relationship of trust, authority or dependency between you and the girl.

2. Plea was consistent with instructions received by the defence counsel. Provisional plea was entered subject to the court reading the evidence in the committal file. Court considered the witness’ statements and noted the admission by the prisoner in committing the crime in the record of interview. Evidence no doubt covered the essential elements of the charge. On that basis court accepted the plea as unequivocal and found you guilty of the charge

FACTS ESTABLISHED BY EVIDENCE.

3. Facts upon which conviction was entered are these. About 6pm during the first week of November 2015, the victim to be identified by initials J.N had left the family house to collect coconuts to prepare meal for the family. She was surprised to see you at the location she was going to collect coconuts. You held a small knife in your hand. In fear of you J.N attempted to run away but you threatened to cut her with the knife if she fled. Out of fear of being cut J.N remained standing and you held her by the hand and took her into the nearby bushes. There she was ordered to remove her clothes and lay down on the ground. J.N. did as she was told. You then removed your clothes and laid onto her, sexually penetrated her through her vagina three times. She felt pain but could not call for help because of fear of being cut with the knife. After you had sexually penetrated her, she walked home. For reasons only known to her, she never reported the wrong to her parents or anyone if it was of any concern to her until after two months.

4. The allegations came to light when J.N has left home without her parents knowing the whole of 02 January 2016 and her parents began searching for her. They found her at a house owned by the person called Lamai the following day on 03 January 2016. Her parents started questioning her and she told them of the alleged sexual wrong you committed in the first week of November in 2015. She told her parents one other boy had also sexually penetrated her on 2 January 2016.

5. At the time J.N was sexually penetrated she was in her 5^th grade at Gunanba Primary School Kokopo, East New Britain Province (ENBP). Her mother gave birth to her at Vunapope Hospital on 19^th February 2002. She was then 13 years of age, just 3 months away from turning 14.

6. Your mother is the biological sister to victim’s biological father. Both you and the victim are first cousins. What does the law say on such relationships?
Section 6A (1) of the Criminal Code (SO&CAC) Act 2002 provides definition of the term “relationship of trust, authority or dependency. Sub-section (2) lists circumstances of that relationship extends to. That includes relationship where the “accused is the complainant’s grandparent, aunt, uncle, sibling (including step sibling) or first cousin.” (emphasis added).

7. There was an existing relationship of trust, authority or dependency between the prisoner and the victim.

8. By operation of the law sexual penetration of a close relative, between first cousins is prohibited. You sexually penetrated your first cousin and committed an incestuous act, albeit State has not pressed any charge against you for crime of incest. That has been covered when State preferred the charge for offence in s229A (1) (3). That at the time you committed this offence there was an existing relationship between you and the girl, not so much of authority but of trust and dependency. Hence, you have attracted upon yourself penalty of maximum life imprisonment, however court has discretion to impose a lesser penalty by invoking powers under s 19.

9. I set out the offence below;

229A. SEXUAL PENETRATION OF A CHILD.

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime. Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life. (Emphasis added)

GENERAL OBSERVATIONS ON SERIOUSNESS OF THE CRIME

10. There are couple of aspects of the crime that makes it serious. First of all, you picked on a wrong girl to satisfy your sexual cravings and desire. She was not of the age of or over the age of consent. She was only 13. You threatened her with a knife and forced her into having sex.

11. Sexual exploitation, abuse or penetration of children, is a global issue. On 20^th November 1989 General Assembly of the United Nations by resolution adopted the Convention on Rights of the Child which was signed and ratified by 140 member countries including PNG. Laws such as the one you were convicted of were passed by our Parliament in recognition of those international obligations for protection and enforcement of rights of children.

12. Prosecution has argued that “offence of sexual offences (inclusive of rape) have become prevalent in the society over the years. Such prevalence shows that perpetrators of sexual offence have blatant disregard and disrespect for rights of their fellow female members of the community to move around freely without fear of being sexually abused.” I cannot agree more and endorsed that statement. To demonstrate how courts in our jurisdiction have continued to express their disapproval of such crimes I refer to State v Taunde [2005] PGNC 152; N2807 (22 March 2005) in which Justice Cannings noted;

“As I noted in a recent Wewak case, The State v Pennias Mokei (No 2) (2004) N2635, Section 229A of the Criminal Code is part of a set of new provisions introduced by the Parliament in 2002, aimed at protecting children against sexual exploitation and abuse. The People of Papua New Guinea decided through their duly elected representatives in the National Parliament to change the law and express their abhorrence of this sort of conduct. The People have indicated that they will not tolerate children being abused, particularly by those in a position of trust. This is recognition of the central role that children play in all societies and cultures in Papua New Guinea. In Papua New Guinea children are treated like kings and queens. They are the future of Papua New Guinea and the people depend on them and their upbringing.”

13. (See also Lawrence Hindemba v The State (1998) SC593). These are but two out of a large volume of cases courts have continuously driven the message against violation and abuse of rights of children and women in our country. Many advocacy groups in the civil society including churches, the media industry have joined in the fight and continue to do so in bringing forth the message to wider communities. In our concerted efforts to discourage crimes which are becoming prevalent there has been a gradual increase in sentences in response to calls by the community at large. In a recent rape case of The State v Tommy Koi (No.2) N7176 (29 March 2018) I expressed similar concerns and made reference to a number of judgments demonstrating how courts have approached sentencing in recent times. I maintain and uphold the views that were expressed.

14. Secondly, both the modern criminal law and customary norms and practices complement each other. Sexual relations between close blood relatives is not only unlawful by criminal standards. It is also wrong and prohibited by customary rules and practices in our traditional societies. East New Britain is no exception. I believe what you did was against the values and norms of customary practices of the Taraiu in the Tumbuan Society which is part and partial of your cultural heritage. And there are serious consequences for violations of such customary rules which will demand immediate reparation from you.

15. You have brought shame and bitterness not only upon yourself and your immediate family, all your close blood relatives, including the victim and her mother. By customary standards first cousins are supposed to hold each other in brotherly or sisterly love, confide with each other with certain degree of trust and confidence. You will agree with me the offence you have committed is quite prevalent in East New Britain Province.

16. Furthermore, you stated in the record of interview you sexually penetrated her because other boys were having sexual relations with her. Does this constitute a valid reason for you to do the same? It does not. If you knew other boys were having sexual relations with your cousin you should have stood up in her defence and alerted the family for their intervention against such a wrong being committed. Instead, you remain passive about it, waited for an opportune time to have your round with her. That opportunity came when she was alone in the bush collecting coconuts late in the afternoon; you threatened her with a small knife and forced her to have sexual intercourse with you against her will.

17. Now the important question. What sentence should be imposed upon you? Obviously not the maximum life sentence. The law is settled. Maximum penalty is reserved for the worst cases. (Maima v. Sma [1972] PNGLR 49, Golu Golu v The State [1988-89] PNGLR 653,

18. I consider circumstances of your case, does not place your case in the worst category to attract the maximum life year sentence. If it is not life sentence, what alternative sentence should be imposed upon you?

SENTENCING CONSIDERATIONS IN SEXUAL PENETRATION CASES

19. The Supreme Court in Sabiu v State [2007] PGSC 24; SC866 (27 June 2007) enumerated sentencing considerations as guide in sentencing offenders for sexual penetration cases. These considerations were laid down in The State v Mokei (No 2) [2004] PGNC 129; N2635 (26 August 2004) and followed in State v Ndrakum Pu-Up (2005) N2949 as alluded to in the defence submission. The considerations constitute factors of aggravation and mitigation. The considerations are set out below with my answers included;

a) Is there only a small age difference between the offender and the victim? Ans: Yes. Prisoner was 19 and the girl was 13 when crime was committed, so 6 years age difference
b) Is the victim not far under the age of 16 years? Ans. Yes. Girls was 13, so 3 years from being 16
c) Was there consent? Ans. No
d) Was there only one offender? Ans. Yes
e) Did the offender use a threatening weapon and not use aggravated physical violence? Ans. Yes
f) Did the offender cause physical injury and pass on a sexually transmitted disease to the victim? Ans. No. just threats.
g) Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one? Ans. Yes
h) Was it an isolated incident? Ans. Yes
i) Did the offender give himself up after the incident? Ans. Yes
j) Did the offender cooperate with the police in their investigations? Ans. Yes
k) Has the offender done anything tangible towards repairing his wrong such as offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did? Ans. No
l) Has the offender caused further trouble to the victim or the victim’s family since the incident? Ans. No
m) Has the offender pleaded guilty? Ans. Yes
n) Has the offender genuinely expressed remorse? Ans. No. There was no genuine reconciliation with the girl and family
o) Is this his first offence? Ans. Yes
p) Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Ans. Yes
q) Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Ans. Yes. No pregnancy

FACTORS FOR AND AGAINST

20. Going by the above considerations mitigating factors outweigh factors that are against the prisoner.

21. Let me make few additional comments. I consider your brief expression of remorse to be shallow and not genuine. There is nothing tangible like a reconciliation ceremony you have done with the support of your family to the victim and her family since the wrong was committed. That to me would have been considered a genuine expression of your remorse of the wrong committed.

22. The pre-sentence and means assessment reports prepared by the Probation Officer contain some information about you. At the outset both reports are not balanced and unfavorable to you. Why is that so? Firstly, victim’s impact statement including her parents view have not been obtained and included in the report. Secondly, you have stated in the pre-sentence report of your intention to pay 20 fathoms of traditional local legal tender as compensation equivalent to K100.00. Personally your financial ability to pay compensation if ordered is also zero. That means you will put extra financial burden on your elder brother and perhaps other members of your immediate or extended family depending on their willingness to offer assistance. Their views have not been captured in the report. Having said that though, seriously speaking you should personally feel responsible to pay some form of compensation and reconcile with the girl and her family instead of relying on your family. I doubt very much you will have the ability to pay.

23. Next when the victim’s parents discovered about the wrong you committed your other brothers put up a fight in your defence. It is regrettable that should not have happened. That attack should have been discouraged by yourself or your family after all it is everyone’s business to maintain law and order as well as uphold and respect our customary practices rather than putting up arguments and fights in support of individuals who commit wrong.

COMPARABLE JUDGMENTS

24. Court has heard submissions from both the prosecution and the defence. I took note of them. Counsel representing you referred to various comparable judgments out of the huge volume of decided cases for court’s consideration. Counsel representing the State has done the same. I commend them both. As Court Officers it is their utmost duty to assist the court in reaching an appropriate sentence. I need not cite all those judgments but I have taken note of them. I have also done a personal survey of some other decided cases.

25. Let me state this. There has been a steady climb in sentences imposed for sexual offence cases in recent years. Sentences imposed vary from case to case. Some sentences were quite low with portion of sentence suspended while others were higher. These are useful guides in reaching a specific sentence.

26. The Supreme Court in deliberation on an appeal against sentence of 17 years imposed by the sentencing court in Sabiu v State (supra) made reference to case of The State v. Biason Benson Samson (2005) N2799 in which case His Honor Cannings J determined that the starting point in a case involving a 13-year-old victim was 15 years imprisonment. Supreme Court however it appears to me did not specifically endorse that to be the head sentence.

27. That should be the starting point and I adopt His Honor’s suggestion in view of the call for gradual increase in head sentence on account of prevalence of sexual offence against children. From that 15 years head sentence court exercising its discretion may ascend or descend depending on circumstances of aggravation and mitigation in a given case.

28. All those cases referred to and surveyed have their own peculiar factual circumstances. Certain facts in some of those cases are similar to this case. Counsel representing you has asked the court to consider 6 years as starting point.

29. Let me make some further observations on a certain point prosecution has raised in its submission which cannot go without a response from the bench. Prosecution has further submitted the present case does not have any exceptional circumstance so as to deserve leniency. It further reminded the court of the latest amendment to the penalty provision of aggravated- rape which now carries maximum death sentence. Counsel submitted orally sentences imposed in Rape offence under s. 347 (2) cases can be considered in deciding sentences for offence under s.229 A (1)(3). That was by authority of Supreme Court case of Robert Solomon v The State [2007] PGSC 9; SC871.

30. With respect I have issue with that. The reason is this. Initially prosecution had pursued a charge of rape pursuant to s 347 (2) with no circumstances of aggravation pleaded on the indictment that was presented. In the same indictment it pursued an alternative charge of sexual penetration of a child under the age of 16 years pursuant to s 229A (1) (3) in circumstances there existed a relationship of trust, authority and dependency between the offender and the girl.

31. On plea bargaining prosecution dropped the rape charge and pursued the alternative charge under s 229A (1) (3) for which he was convicted. Hence, necessary amendments were made to the indictment on application by the prosecution.

32. Is it proper and fair, for prosecution to ask the court to consider sentencing the prisoner as if he was being convicted on a rape charge? I think that is unfair and not proper line of thinking. Though both offences are of sexual nature they are distinct and separate offences carrying different penalties. I think it will be prejudicial to the defence or the prisoner and amount to injustice for the court to sentence the prisoner as if he was being sentenced on a rape charge.

33. Despite those personal observations. The highest Court of the land has decided otherwise. That is the law and binds this court.

34. The sentence the court shall impose on you is aimed at achieving deterrence because of the prevalence of the offence. It should also achieve the purpose of your rehabilitation through the various programs like the Prison Ministry that are being introduced in prisons in the country. Whilst you will be living amongst negative factions of prison population I urge you to make every effort to attend those programs which ultimately adds value to people’s life.

35. Considering all that I have discussed above I consider a head sentence of 15 years should be the starting pointing for your case in accepting recommendation by His Honour Cannings J in The State v Biason Benson Samson (supra).

36. Mitigating factors favorable to you further mitigate your sentence in as much as possible in dispensation of justice. I consider 6 years suggested by counsel representing you is pretty low for the cries and interest of the community against such heinous crimes which are becoming too prevalent.

37. Accordingly, in the exercise of sentencing discretion vested in this court under section 19, I sentence you to 9 years custodial sentence which should serve the purposes of personal and public deterrence as well as to allow the prisoner to be effectively rehabilitated.

38. No portion of sentence imposed is to be suspended.

39. Further in the exercise of the courts powers under the Criminal Justice (Sentences) Act 1986 a discount shall be allowed and deducted for pre-sentence period. That will be 2 years 5 months 9 days commencing from the 12 January 2016 when you first appeared before the committal court.

40. You shall serve out balance of sentence of 6 years 6 months 21 days at the Kerevat Jail subject to further remission at the discretion of the Kerevat Gaol Commander. A warrant of commitment shall be issued forthwith to hold you in prison to serve your sentence.
__________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Prisoner