State v Kago [2018] PGNC 515; N7621 (13 November 2018)

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CRIMINAL LAW – Trial - Sexual penetration of a child under 16 years – Section 229A (1) Criminal Code – All elements successfully made out – Age of child successfully made out – Admission of sexual penetration by one accused.

CRIMINAL LAW – Trial – Sexual penetration – Section 229A (1) Criminal Code – Guilty verdict entered for Peter Kago by operation of Section 7 Criminal Code.

CRIMINAL LAW – Sentence after trial - Philip Kiti sentenced to 12 years without suspension and or probation.

CRIMINAL LAW – Sentence after trial - Peter Kago sentenced to 6 years – To serve 3 years and balance 2 years suspended on Probation.

Ignatius Naru Pomalah v The State [2006] SC.834
John Elipa Kalabus –v- The State [1988] PNGLR 193
State v Biason Samson [2005] N2799]
State v Penias Mokei (No.2) [2004] N2635
State v Taulaola Pakai [2010] N4125

The State v Biason Benson Samson [2005] N2799
The State v Binga Thomas [2005] N2828
The State v Eddie Trosty [2004] N2681
The State v Pennias Mokei (No 2) [2004) N2635
The State v Titus Soumi [2005] N2809
Ure Hane v The State [1984] SC279

1. GEITA J: The both of you have been found guilty for sexual penetration of a child under 16 years of age. The offence comes under section 229A (1) of the Criminal Code and attracts a maximum penalty of 25 years.

2. The facts as found by the court on your conviction following your trial are briefly set out as follows: In May 1^st 2015 the victim was invited by her girlfriend to accompany her to a nearby river to wash. As it turned out the two of you arrived at the river around 7pm in a vehicle owned by the Education department. The two girls were picked up and driven to a secluded location. Peter Kago and his girlfriend went about doing their own thing and left Philip Kiti alone with the victim. Philip Kiti then sexually penetrated the victim with Peter Kago’s knowledge. At the time Peter Kago was driving that Education vehicle. A medical report confirmed accounts for the victims visit and examination of her private parts including the recording of her age, at 16 years.

4. During allocutus Peter Kago asked to be considered for Probation. Philip Kiti suggested the matter be settled out of Court and asked for Probation.

5. No extenuating circumstances were presented to the court for its consideration.

6. Mitigating factors include both first time offenders, long serving teachers with excellent records, favourable community commendations, large families to care for and willingness to pay compensation

7. Aggravating factors include huge age difference between both prisoners and the complainant; the complainant suffered injuries to her private parts; a government vehicle allocated for school inspections misused after hours to facilitate the offence; the complainant’s education prematurely abrupted at Grade 8 due to stigma and shame as a result of the offence; lack of genuine remorse or apology extended to the victim; breach of trust as school headmaster and school inspector from the community school victims attended, prisoners had a de facto relationship of trust, authority and dependency towards the victim who was a primary school student.

8. Community attitudes include the prisoner’s willingness to serve their community until their retirement. Their pre-sentence reports speak highly of their good character and favourable references. The victim’s family is not willing to accept any form of compensation, despite the prisoner’s willingness to each pay K2, 500.00 to the victim.

9. The following cases were referred to the Court as part of his submissions for a lenient sentence for the prisoners: The State v Eddie Trosty (2004) N2681; The State v Titus Soumi (2005) N2809 and The State v Biason Benson Samson (2005) N2799. These cases are easily distinguished as all accused persons in those cases pleaded guilty and there were marginal age difference between the victims and offenders. In the other case referred to Court the offender also pleaded guilty but was sentenced to 12 years. The distinguishing feature was the huge age difference between the accused and the victim: 49 years and 15 years: The State v Binga Thomas [2005] N2828. In the current case both prisoners pleaded not guilty and the matter was trialled and both were found guilty. Here was a huge age differences.

10. Counsel of prisoners Darrell Sakumai correctly submitted that both prisoners sentence be considered differently in view of the degree of their participation: (Ignatius Naru Pomalah v The State [2006] SC.834). He submitted that prisoner Peter Kago’s participation was greatly diminished in that what happened between prisoner Philip Kiti and the victim was unknown to him. The main thrust of Defence submissions was to secure a lenient and non-custodial sentence for the prisoners.

11. The Public Prosecutor in submission advanced that the Court should not lose sight of the fact that the victim’s education has prematurely ended as she is no longer in school due to shame and stigma she will live with for the rest of her life. The prisoners offered no genuine remorse to the victim. Young children must be protected from sexual predators and given stiffer penalties within the spirit of the 2002 Criminal Code amendments. The State submit that a head sentence of 12 years be considered for Philip Kiti without suspension. As for Peter Kago a lower sentence of 6 years be considered with some option for suspension with conditions.

12. I take note of your collective concerns for your family members and that you both served the country well as teachers for a good part of your lives. They are remarkable achievements but Courts have said time and time again that persons who commit crimes must not escape due punishment for their wrongs. Such persons must be made responsible for the wrongs they have committed against the State and its citizens:

“A plea for leniency to avoid the suffering of one’s family should have little or no weight when an appropriate sentence is being considered.” (State v Taulaola Pakai (2010) N4125, Hartshorn J.)

13. As regards consideration on punishments, the principles of sentencing are engrained in four main pillars: deterrence, rehabilitation, restitution, and retribution. The more serious the offence or crime, deterrence and rehabilitation are often employed by trial Judges. In the case of John Elipa Kalabus –v- The State [1988] PNGLR 193, the former Chief Justice Sir Buri Kidu had this to say:

“There are various purposes of punishments and they include rehabilitation. But rehabilitation of a criminal must not be allowed to obscure the consideration of deterrence and protection of the public from the commission of crimes”.
14. In your case I take judicial notice of the following two cases which has provided some guidelines and useful consideration to assist courts in determining appropriate sentences for cases under section 229A of the Criminal Code: State v Penias Mokei (no.2) (2004) N2635 and State v Biason Samson (2005) N2799) by Cannings J.

15. For the moment your aggravating factors far outweigh your mitigating factors warranting a deterrence sentence in my view to send a very strong message to others from committing such similar crimes involving children, especially the venerable children who are still in school. This is what the Courts have said in previous cases and I quote, per Cannings J:

“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.”

16. Might I add here in passing that it is not altogether correct to think that, as submitted by Defence Counsel that Peter Kago’s criminal participation is absolved by his non participation in this crime of sexual penetration. He is as much to be blamed and must be held accountable for this crime for the following reasons: He was the driver of that Education division who transported his friend Philip Kiti to the crime scene; He was an acquaintance of the victim’s father/family and had the power to rescue the victim that night but he failed to do that. I agree with Mr Sakumai’s submission that certain aggravating factors should remain varied between both prisoners as regard their involvement and participation in the crime committed. I have taken note of those.

17. It follows that a deterrence sentence is considered appropriate in your case. In the case now before me Philip Kiti was found guilty and convicted of sexual penetration whereas Peter Kago was also found guilty but convicted by operation of section 7 of the Criminal Code. His ultimate sentence will be different to those imposed on Philip Kiti. For the moment the maximum penalty will not be considered. (Ure Hane v The State (1984) SC279.) Nonetheless a head sentence of 15 years is considered in my view to be an appropriate sentence in order to reflect the seriousness of this crime. However in light of Philip Kiti’s passive involvement in the lead up to this crime, a lower sentence will be considered.

1.Philip Kiti	Sentenced to 12 years less any pre-trial period
	Suspension of some parts of sentence and or probation considered not appropriate.
2. Peter Kago	Sentenced to 6 years less any pre-trial period.
	Prisoner to serve 3 years of sentence after which he will be released on Probation for 2 years thereafter.

Your bail monies will be returned to you both. Your warrants of commitments will be issued forthwith.

Public Prosecutor : Lawyer for the State
William Tekwie Lawyers: Lawyer for the Prisoners

National Court of Papua New Guinea

State v Kago [2018] PGNC 515; N7621 (13 November 2018)