|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 1245 of 2018
THE STATE
v
GIDEON POGOSON
Defendant
Kavieng: Kangwia, J.
2019: 21 February & 08 April
CRIMINAL LAW - Offence of sexual penetration with finger under s 229A (g) of the Criminal Code – 47 year old offender on step-daughter of 10 years–Convicted on guilty plea- no prior conviction-Abuse of trust- no genuine remorse -prevalence of offence- need for increase in sentence- sentenced to 10 years imprisonment
CRIMINAL LAW – plea - Prisoner convicted on guilty plea to Arson under s 436 (a) of Criminal Code- structure a kitchen of bush material- prisoner owner of structure –offence under s 436 includes owner of structure as offender- unreasonable and illogical to impose a custodial sentence on prisoner who burnt down his own structure- s436 should be amended to avoid an owner from being penalized for burning down his own building- sentenced to the rising of the court
Cases cited:
State v Warek John – CR 479 of 2016 – (Unreported judgement of 11 July 2016);
Chris Awin –v- The State (2008) SCR 55 of 2005;
State v Sawan Raumo CR 76 of 2007 (unreported judgement;
State v Ndrakum Pu-uh (2005) N2949;
State v Kikia Solowat (2007) N3154;
State v Douglas Jogiaba (2007) N4085;
State v Kolton Duen Songones (CR No 778/2007 – Unreported judgement of 22 November 2007);
State v William Lupui CR NO 1280 of 2013 (Unreported Judgement dated 15 June 2016);
State v David Lamun CR NO 1580 of 2010 (Unreported Judgement dated 11 October 2017).
Counsel
R. Luman, for the State
A. Tunuma, for the Defence
08th April, 2019
1. KANGWIA, J.: The prisoner appears for Sentence. The court convicted him on his guilty plea to one count of Sexual Penetration under s 229 A (g) of the Criminal Code Act and one count of Arson under s 436 (a) of the Criminal Code.
2. The facts were that the prisoner was the step father of the victim having married the victim’s mother. On 20 May 2017 the prisoner took the victim who was then 10 years old from their house to the beachfront. He removed the victim’s clothes and inserted his finger into her vagina. The victim felt pain and cried out. The mother heard the crying and went to find the prisoner with the victim.
3. On 6 April 2018 the prisoner and his wife argued over another incident where the prisoner tried to pull the victim to a house. Their argument continued to 21 April 2018 when the prisoner set fire to the kitchen. He was charged with arson.
4. Both offences were heard together.
5. The prisoner is 47 years old and married with seven children. He is self-employed. He has no prior conviction.
6. On his allocatus while apologizing to the Court and to his family, the prisoner asked for leniency as he was a first-time offender.
1) Sexual Penetration
7. On his behalf, Mr. Tunuma submitted that the prisoner was the first born in a family of four. He had no prior conviction and was a first time offender. He pleaded guilty and expressed remorse. Reference was made to the case of the State v Warek John – CR 479 of 2016 – (Unreported judgement of 11 July 2016) where the prisoner who was convicted on a digital penetration charge was sentenced to a wholly suspended sentence of 5 years as appropriate in the present case.
8. For the State Mr. Luman submitted that the offence prescribed a maximum penalty of life imprisonment. It was a digital penetration where the victim was 10 years old, there was a breach of trust and the victim sustained bleeding and swelling of the vagina.
9. He referred to a number of cases involving penile penetration with a child where a breach of trust existed. In the cases referred to the sentences were upwards of 15 years. It was submitted that a similar penalty should be imposed.
10. The penalty for sexual penetration with circumstances of aggravation under s 299A (1) and (3) is life imprisonment. Section 299 1) & (3) are as follows;
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 subsections (2) and (3), imprisonment for a term not exceeding 25 years.
(2)...
(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 liable subject to s 19, to life imprisonment.
11. The combined effect of the provisions is that the prisoner is liable to be sentenced to life imprisonment. That is subject to the Courts discretion under s19 of the Criminal Code.
12. In the case of Chris Awin –v- The State (2008) SCR 55 of 2005 the prisoner digitally penetrated his step daughter of 10 years. The National Court sentenced the prisoner to 25 years after a trial. On appeal the Supreme Court held that the sentence was excessive; that digital penetration should be lower than penile penetration as penile penetration attached itself with possible Sexually Transmitted Diseases. The sentence was substituted with 18 years.
13. In line with the Supreme Court determination a sentence lower than the penile penetration cases referred to by counsels is appropriate. I also agree with Counsels that the present case does not fall into the most serious category of the offence although the offence itself is serious.
14. The following cases are in my view relevant in arriving at a suitable sentence for the sexual penetration offence.
15. In the case of State v Sawan Raumo CR 76 of 2007 (unreported judgement) on a guilty plea to digital penetration of a 9-year-old niece, the offender who was 58 years old was sentenced to 9 years imprisonment.
16. In the State v Ndrakum Pu-uh (2005) N2949 where the 38 year old prisoner who inserted his finger in the vagina of a 12 year old child was sentenced to 4 years.
17. In the State v Kikia Solowat (2007) N3154 a 58-year-old offender who digitally penetrated the vagina of his niece aged 9 years was convicted of sexual penetration under s 299A (3) of the Criminal Code.
18. In the State v Douglas Jogiaba (2007) N4085 a school teacher who committed penile and digital penetration on a student aged 16 years was sentenced to 10 years. There was a breach of trust by the teacher.
19. In the case of State v Kolton Duen Songones (CR No 778/2007 – Unreported judgement of 22 November 2007) where the offender aged 29 years who committed digital penetration on a child aged 8 years was sentenced to 8 years in a breach of trust situation.
20. The cited cases were decided more than ten years ago. The offence involving digital penetration is prevalent and it demonstrates that the sentences have had no deterrent effect on offenders. In my view an increase in the sentence for such offence is warranted.
21. In the prisoner’s favor is that he is a first time offender. The charge stemmed from one incident only. He pleaded guilty
early and apologized to the family however, no genuine remorse was expressed.
22. The factors against him are that the victim was 10 years old. She was his stepdaughter being the daughter of his wife. He
has other children from the victim’s mother. He grossly abused a trust relationship. The victim will live with the trauma and
stigma attached with the offence for a long time. The longtime effect on his family relationship has been greatly affected.
23. His second attempt on the victim led to arguments with his wife resulting in the burning down of his kitchen. The abuse of trust cannot be cured by a non-custodial sentence.
24. I agree with the view in the Chris Awin (supra) case that a sentence for digital penetration should be generally lower than penile penetration as the chances of sexually transmitted diseases are present under penile penetration.
25. In light of my view that an increase in sentences for digital penetration offences was warranted a sentence of 10 years is appropriate in the present case. The prisoner is sentenced to 10 years imprisonment. The time in custody awaiting trial and sentence shall be deducted and the balance shall be served at CS Kavieng.
2) Arson
26. On the Arson charge, Mr. Tunuma on behalf of the prisoner sought a wholly suspended sentence of 2 to 3 years with a condition that he rebuild the kitchen. It was submitted that the structure was a kitchen for his family.
27. For the State Mr. Luman while acceding that the structure burnt down was a family kitchen submitted that the prisoner set fire to it during an argument over the prisoner’s second attempt to commit a sexual offence on the stepdaughter. The prescribed penalty under s 436 of the Criminal Code was also life imprisonment. This was a serious offence and a sentence of a number of years was appropriate.
28. The offence of Arson under s 436 of the Criminal Code provides as follows;
436. Arson
A person who willfully and unlawfully sets fire to-
a) a building or structure, whether the completed or not; or
b)...
is guilty of a crime.
Penalty; Subject to s 19, imprisonment for life.
29. The maximum prescribed penalty for the offence is life imprisonment. Although that prescription is subject to s 19 of the Criminal Code it clearly identifies the offence as very serious.
30. On a closer perusal of the offence it is apparent that anyone who committed arson is liable to the penalty prescribed. It did not matter whether the house belonged to the arsonist. According to the wording of the offence it can be safely inferred that the prisoner committed arson against himself.
31. In the present case the structure was a kitchen and it belonged to the prisoner and his wife and children. It was a family property.
32. The prisoner set fire to it following an argument with his wife. The wife and children would surely face hardships in their daily lives from the loss of the kitchen and the incarceration of the prisoner.
33. This Court has determined two cases of arson which stemmed from an argument with the wife.
34. In the case of State v William Lupui CR NO 1280 of 2013 (Unreported Judgement dated 15 June 2016) the prisoner who set fire to a kitchen and semi-permanent residence belonging to him and his family following an argument with his wife was sentenced to 4 years imprisonment.
35. In the case of the State v David Lamun CR NO 1580 of 2010 (Unreported Judgement dated 11 October 2017) where the prisoner set fire to a copra shed and a ‘boy house’ belonging to him and his family following an argument with his wife was sentenced to 4 years with a part of it suspended.
36. The question that arises is whether the arson in circumstances where the prisoner is the owner or co-owner of the property or structure warrants a custodial sentence in line with the prescribed penalty?
37. In light of that question I pause to ponder whether I have erred in my determinations in the two cases referred to above.
38. In my view a custodial sentence would be unjust and unwarranted in circumstances where the prisoner is the owner or co-owner of the structure burnt down.
39. I am of the view that even though the prisoner in the present case did set fire to the kitchen he should not be penalised for setting alight a building that he also owned.
40. I am also of the strong view that he should not be ordered to rebuild a replacement structure under the circumstances of the offence. It was his property and it was his obligation to rebuild a replacement if and when he chose to build one.
41. Apart from his family, he owes no duty to anyone to rebuild the structure even from compulsion of a court direction.
42. Following on from that I consider that even though the prisoner committed arson under s 436 of the Criminal Code, he should not be penalised under the penalty provision of s 436 over a property which he equally owned.
43. I consider it unreasonable and it also makes no logical sense for him to be sentenced for burning down his own property. I therefore sentence him to the rising of the Court as he was already convicted of the offence of Arson.
44. In light of the views raised and the decision in the offence of Arson, I propose that the Legislature considers amending the offence under s 436 of the Criminal Code by including the owner of the property or structure so that there is blameworthiness factored in the offence.
45. Currently the offence deems that an owner of a property can commit arson against himself or herself. Generally, one cannot commit an offence against himself. There must be someone else to blame as the offender for the arson.
46. I suggest that the words “belonging to another person” should be inserted after the word “not” under s 436 so that the new offence would read as follows;
A person who wilfully and unlawfully sets fire to-
(a) a building or structure, whether completed or not belonging to another person; or
(b) ...
is guilty of a crime.
47. The formal Orders for both offences are as follows:
____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2019/101.html