State v Mankia [2019] PGNC 107; N7822 (24 April 2019)

N7822

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 104 of 2019

THE STATE

V

EMIL MANKIA
Kerevat: Susame, AJ
2019: 16, 18 & 24 April

CRIMINAL LAW – Sentence – Plea- Offence – Sexual Penetration Of A Child Under 12 Years Of Age - S.229a (1)(2) Criminal Code(Sexual Offences And Crimes Against Children)Act 2002

CRIMINAL LAW - Factors In Mitigation And Aggravation - Prisoner 22 Years Of Age – Victim 15 Years Old – Uncle & Niece Relationship – Betrayal Of Trust –– Penal Penetration Of Vagina - 4 Different Occasions – No Weapons Used – No Physical Injuries – No Pregnancy – No Sexually Transmitted Disease Contracted – Victim Subject Of Sexual And Physical Assault By Four Members Of The Same Family – Psychological & Mental Trauma –Prevalence Of Offence – Seriousness Of Offence

CRIMINAL LAW - 15 Years Head Sentence –18 Years Imprisonment Effective Sentence – No Suspension – Period In Custody To Be Deducted

Cited Cases

Goli Golu v The State [1988-89] PNGLR 653
Hindemba v The State [1998] PGSC 48
Setep v The State [2001] PGSC14
State v Penias Mokei (N0.2) (2004) N2635
Stanley Sabui v The State [2007] PGSC 24; SC866.
The State v Biason Benson Samson [2005] N2799
The State v Billy Paolo [2013] PGNC 112; N5286
The State v Francis Tigi (N0.2) [2013] N114
The State v George Gior Kankan [2017] PGNC 25; N6630
The State v Gideon Biton & Regina Biton, unreported 16 May 2016,
The State v Ismael Kabian CR N0. 1431 of 2015
The State v Makis [2012] N4888
The State v Ndrakum Pu – Uh (2005) 2949
The State v Ndrowoh [2016 PGNC 181: N6374
The State v Peter Ania (unreported) CR N0. 627 of 2013
The State v Siname [2009] PGNC 213
The State v Steven Makai [2010] PGNC 107 N3914

Counsel

Ms. L. Shanks, for the State
Ms. J.M. Ainui, for the Prisoner

DECISION ON SENTENCE

24^th April, 2019

1. SUSAME, AJ: Prisoner pleaded guilty to a charge of persistent sexual abuse of a child under 12 years of age contrary to s229D of Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 on 10 April 2019. Plea was consistent with the instruction given to his lawyer. He was convicted on court being satisfied evidence in the police file covered all essential elements of the offence.

Facts

2. The facts upon which prisoner was convicted are as follows.
   
3. During the month of September 2017 complainant moved to her grandfather Sebastian Mankia’s family home following the death of her mother. The victim was then 15 years of age and was doing grade 5 in school. Prisoner is the son of Sebastian Mankia. He would be regarded as the victim’s uncle and living in the family home. Prisoner was then 22 years of age.
   
4. On a Monday in January 2018 around midnight, the prisoner entered the victim’s bedroom, woke her up and asked her to cook for him. She refused but upon insistence she followed his instruction to cook his meal.
   
5. After cooking his meal the victim returned to her bedroom and prisoner followed her inside. He forcefully removed her clothes and his own clothes. He made her to lie down on the bed and forcefully had sexual intercourse with her until he ejaculated his sperm into her vagina.
   
6. The prisoner then told her not to report him to his wife or he would cut her with a knife if she did.
   
7. On another occasion in the month of March 2018 victim came home from school. At about 6.30pm the prisoner told her to go collect mustard with him. She tried to run away but the prisoner held onto her and removed her laplap and he removed his trousers. The prisoner forced her onto the ground and had sexual intercourse with her until he ejaculated into her vagina. Prisoner told her he was going to marry her and that he would give her betelnut so she will not leave him.
   
8. Victim decided to run away to her grandmother’s house and told her grandmother of what had occurred. The matter was thereafter reported to police. During the record of interview with the police investigator, the prisoner made admissions by stating that the girl asked him for sexual favours to which he agreed and he committed the offence. He admitted sexually penetrating her four times.

Allocutus

9. Prisoner said: I am sorry to the court for what I have done. I seek court’s mercy. My mother is an old lady, if the court can consider that. That’s all.

Submissions on Sentence.

10. Submissions from the lawyers then followed. Court has considered them. I will refer to the relevant parts of the submissions bit later. First, the issue.

Issue

11. What is the appropriate sentence court should impose. First let me set out the offence.
    

Offence

229D. PERSISTENT SEXUAL ABUSE OF A CHILD.

(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent abuse of a child. Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and

(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.

12. The court is guided by the following:

• Application of sentences principles,
• Established sentencing guidelines,
• Factual merits of the case,
• Prisoner’s personal characteristics,
• Prevalence of the offence in society,
• Factors in aggravation and mitigation,
• Related decided cases.

Maximum Penalty

13. Maximum penalty prescribe for the offence is life imprisonment. That is subject to section 19 power of court to impose an alternative sentence other than the maximum. Maximum penalty can be considered if factors are very serious for the case to be classified as the worst one deserving the maximum penalty. Otherwise, maximum should be reserved. (Goli Golu v The State [1988-89] PNGLR 653). In his judgment Wilson J in Goli Golu v The State cited with approval factors to justify the maximum in the decision of Criminal Court of Appeal in R v Hodgson Unreported Judgment S, C, 137 25 October 1978). These factors are:

“1. Where the offence or offences are in themselves grave enough to require a very long sentence;

2. Where it appears from the nature of the offence or from the defendant’s character that he is a person of unstable character likely to commit such offences in the future; and

3. Where if the offences are committed the consequences to others may be specifically injurious, as in the case of sexual offences or crimes of violence.”

14. Those factors are not present to place the case in the worst category to attract the maximum penalty. Counsels have conceded to that.

Sentencing Guidelines in Sexual Offences.

15. Ms. Shanks referred the court to Supreme Court authorities of Hindemba v The State [1998] PGSC 48 and Setep v The State [2001] PGSC14 in which court expressed lifelong impact on the victim is a relevant factor court must consider in sentencing an offender.
    
16. Attempts were made to formulate sentencing guidelines in State v Penias Mokei (N0.2) (2004) N2635 and The State v Ndrakum Pu – Uh (2005) N2949 which Ms. Ainui made reference to. Seven questions were posed as a guide by the court in these judgments.
    
17. Cannings J expounded the guidelines in the case of The State v Biason Benson Samson [2005] N2799. The guidelines were endorsed by the Supreme Court in Stanley Sabui v The State [2007] PGSC 24; SC866. The guidelines are framed in 17 questions, requiring an answer. The answers should determine the mitigating and aggravating features of the case. Court will then decide if mitigation factors outweigh the aggravating factors nor not. The questions are:
    1. Is there only a small age difference between the offender and the victim?
    2. Is the victim not far under the age of 16 years?
    3. Was there consent?
    4. Was there only one offender?
    5. Did the offender not use a threatening weapon and not use aggravated physical violence?
    6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?

7. Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?

8. Was it an isolated incident?
9. Did the offender give himself up after the incident?
10. Did the offender cooperate with the police in their investigations?

11. Has the offender done anything tangible towards repairing his wrong, e.g. offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did?

12. Has the offender not caused further trouble to the victim or the victim’s family since the incident? No
13. Has the offender pleaded guilty?
14. Has the offender genuinely expressed remorse?
15. Is this his first offence?
16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?”

18. In its deliberations of the appeal the Supreme Court in Stanley Sabui v The State (supra) considered the serious nature of this particular offence and suggested a head sentence of 15 years. And depending on any aggravating and mitigating factors in a particular case actual sentence be more or less than 15 years imprisonment.

Mitigating factors

19. Parties are in agreement with these factors. The prisoner pleaded guilty to the charge and cut down on cost and time for running a trial. He is a first time offender. He did express remorse. He cooperated with the police in making early admissions in the record of interview.

20. The court endorses them. If I may add. The victim was never made pregnant. She never contracted sexually transmitted disease. No weapons were used. The girl received no physical injuries.

Aggravating factors

21. Again parties are in agreement with these factors. Sexual abuse occurred within close family relations. Hence there was breach of trust. There is a 7 years age difference between the offender and the girl which I consider is not huge. Other factors that weigh against the prisoner are; the victim was subject to abuse not more than one occasion but several. The victim never consented to the sexual abuses. Being young and vulnerable as she is, she succumbed to the prisoner’s forceful demands with little resistance. I consider prisoner’s remorse was shallow and not genuine. Prisoner did nothing tangible in terms of payment of compensation or public apology.

22. Counsels cited few comparable judgments to assist the court which are set out below.

The State v Ismael Kabian CR N0. 1431 of 2015, Lenalia J

23. Prisoner pleaded guilty to a charge of persistent sexual abuse. Prisoner was in his late 60s and girl victim was her granddaughter. Prisoner showed the girl pornographic videos and materials and sexually penetrated her over period of time. He was sentenced to 14 years imprisonment with 5 years suspended.

The State v Peter Ania (unreported) CR N0. 627 of 2013, Lenalia J

24. Prisoner sexually penetrated a 8 year old girl. Prisoner was a security guard at the school the girl attended. There was a serious breach of trust. No expression of remorse- no compensation paid. Prevalence of offence. Prisoner was sentenced to 16 years imprisonment.

The State v George Gior Kankan [2017] PGNC 25; N6630, Lenalia J

25. Prisoner pleaded guilty to the charge of persistent sexual abuse. Prisoner was a grandfather and close relative to the girl victim. Prisoner continuously sexually penetrated the girl who was then living with him and his family. Girl became pregnant. Compensation was paid. Sentence of 10 years imprisonment with 2 years suspended.

The State v Ndrowoh [2016 PGNC 181: N6374, Geita J

26. Prisoner pleaded guilty – First time offender - cooperated with police – no weapons used. Prisoner was father of the girl aged 10- sexual penetration of vagina by penis – Serious breach of trust – Prisoner was sentenced to 19 years imprisonment.

The State v Siname [2009] PGNC 213, Lenalia J

27. Prisoner pleaded guilty to three counts of persistent sexual abuse of the girl. Both the prisoner and the victim were brother and sister. Abuse occurred over period of 6 months and victim became pregnant. The victim was then 15 years old. Here was breach of trust. Prisoner received a sentence of 28 years for two counts and 10 years for one count which was to be served concurrently, that is 28 years to serve.

The State v Steven Makai [2010] PGNC 107 N3914, Cannings J

28. Prisoner was convicted after trial for persistent sexual penetration of a girl. The Prisoner was 30 years old and was a brother –in-law of the girl who was aged between 9-10 years. Abuse occurred over 19 month period. Court noted no weapons were used and prisoner expressed no remorse and did not accept responsibility of his actions. He received a sentence of 20 years imprisonment.

The State v Makis [2012] N4888, Kawi J

29. It was a plea case. Prisoner was convicted for two counts of persistent sexual abuse, Prisoner (40 years of age) was the biological daughter of the girl who was 17 years old. Prisoner threatened his daughter with a knife and sexually penetrated her over 3 months. Prisoner received a sentence of 14 years and 13 years imprisonment which was to be served concurrently. Which means prisoner served 14 years.

The State v Francis Tigi (N0.2) [2013] N114, Kirriwom J

30. Prisoner was tried and convicted for one count of persistent sexual abuse. He was a friend of the victim’s family. Child was between 10 & 13 years of age. Prisoner showed her pornographic movies and sexually penetrated her vagina. Prisoner offered her lunch money. There was abuse of position of friendship. Prisoner received a sentence of 13 years imprisonment.

The State v Billy Paolo [2013] PGNC 112; N5286, Toliken AJ

31. It was a plea case. Prisoner was convicted for one count of persistent sexual abuse of a child. Prisoner was the biological father of the girl victim. Abuse occurred when the child was 7 years old over 4 year period. Prisoner was 49 years old. Prisoner received a sentence of 20 years imprisonment.

The State v Gideon Biton & Regina Biton, unreported 16 May 2016, Pitpit J

32. Prisoners who were husband and wife. Court noted prisoners were first time offenders – no weapons were used. Offence was pre-meditated. There was significant position of trust. There was persistent sexual abuse of a child. The couple received a sentence of 25 years imprisonment which was partially suspended and prisoners served 10 years each.

33. Ms. Ainui has submitted for a 10 years sentence and portion of the sentence to be suspended upon order for payment of compensation.

34. On the other hand Ms. Shanks representing the State has asked the court for a sentence between 20 to 23 years imprisonment. This is in view of the aggravating factors which she considers outweigh those raised in mitigation, the seriousness of the offending, the victim being of tender age and the vulnerability of the victim (being without parents), the breach of trust , prevalence of the offence in the community. That it was imperative courts impose sentences that will deter the offenders and potential offenders from committing such heinous crimes.

Court’s View

35. The cases cites above were decided on their own peculiar set of facts. The judgments are not binding on this court but do offer valuable assistance. Nonetheless, It is worth noting from the Judgements courts are approaching sentencing of offenders with firmness especially when sexual abuse of children occur within family relations in breach of trust relationship. This is reflected in the lengthy punitive deterrent sentences that are being imposed.

36. The prisoner and his father (who has also been convicted for sexually abusing the same girl) had no regard of the close family relations they had with the young girl. When the girl’s mother passed away they took her in giving her the assurance she would be fine except to be sexually abused by the uncle and the grandfather betraying the trust the girl had of them. When the prisoner’s mother caught his father attempting to go for another round with the girl in her room on one occasion she was assaulted by the mother and sister as if she was the perpetrator. As a matter of fact the young girl was subject of sexual and physical abuse by four members of the same family.

37. Starting sentencing for this case should be 15 years. Should the court go higher or lower?

38. There are now special or extenuating factors that I consider will mitigate the sentence lower than 15 years.

39. The court endorses Ms. Shank’s submission on behalf of the State. Though the girl never received physical injuries she will live with the emotional and psychological trauma of having been sexually and physically abused by the members of the same family.

40. I consider that also weigh heavily against the prisoner and the father. Seriousness of the offence, the prevalence of the offence and aggravating factors outlined makes the mitigating factors become less significant.

41. Considering those factors sentence should gradually go higher over the 15 year head sentence by additional 3 years.

42. Accordingly, prisoner is sentenced to 18 years imprisonment. No portion of the sentence will be suspended. Compensation order is discretionary. Court has decided against that because court does not have the benefit of financial situation of the prisoner and that there was no indication from him to pay some form of compensation.

43. Prisoner will serve out 18 years imprisonment with time in custody to be deducted.

Summary of sentence

1. Head sentence 15 years.
2. Actual sentence 18 years with no suspension.
3. Pre-sentence custody period to be deducted.

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner