N8222

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO1248 OF 2018

THE STATE

v

POTUWAN KANAWI
Defendant

Kavieng:  Kangwia, J.
2019: 12 April &8 July

CRIMINAL LAW - Offence of sexual penetration with finger under s 229A (1)& (3) of the Criminal Code – 49-year-old offender on biological daughter of 15 years–Convicted on guilty plea- no prior conviction

CRIMINAL LAW – particular offence - Sexual penetration -Abuse of trust- breaches of moral and biological norms and attributes-no genuine remorse -prevalence of offence- deterrent sentence for lascivious behavior warranted- sentenced to 08 years imprisonment.

Cases Cited:

Chris Awin –v- The State (2008) SCR 55 of 2005; State v Gideon Pogosan CR 1245 of 2018 dated 20 April 2019 

Counsel:

S. Luben, for the State
M.Mumure, for the Defence
	
8th July, 2019

1.	KANGWIA, J.:  The prisoner is appearing for sentence after the Court convicted him on his guilty plea to one count of Sexual Penetration under s 229 A (1) & (3) (g) and of the Criminal Code Act in breach of an existing relationship of trust.

2.	On 24 March 2018 the prisoner went to where the victim slept and sexually penetrated the victim’s vagina with his fingers.  The prisoner was the father of the victim being his biological daughter. The victim was 15 years old at the time of the offence. 

3.	The prisoner is 49 years old and a single father after his wife left him 14 years ago. He has no formal employment. He has no record of any prior conviction.

4.	On his allocatus the prisoner said:

“If I go to jail who will look after the children. The mother abandoned them 14 years ago. It is my first time and I ask for probation orders.”

5.	On his behalf  Mr. Mumure submitted that a sentence with a starting point of 5 years in line with the sentence imposed by this Court in the case of the State v Gideon Pogosan CR 1245 of 2018 dated 20 April 2019 was appropriate in view of the following factors: 

•	that the prisoner pleaded guilty as a first-time offender, this case did not fall into the worst category of sexual penetration, it was a digital penetration, it was a one-off incident and no injuries were sustained. The Court was further asked to consider the prisoners request on the welfare of his children in his situation.

6.	For the State Ms. Luben submitted that a sentence similar to the case of Gideon Pogosan was appropriate. The Court was asked to consider that the offence was serious as there was a serious breach of trust arising out of a biological father/ daughter relationship.  Although there was no physical injury sustained by the victim, sexual penetration had occurred. The Court was also referred to case law where sentences for digital penetration were lower than penile penetration.

7.	The Pre- Sentence Report (PSR) recommended that the prisoner was a suitable person for probation. The report also showed that the prisoner was willing to pay compensation to the victim. 

8.	The report also showed that the prisoner’s children preferred a non-custodial sentence as they needed him for their education and general welfare. 

9.	The offence of sexual penetration is provided under s 229A (1) & (3) of the Criminal Code in the following terms:

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 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 subject to s 19 to imprisonment for life.

10.	The combined effect of the provisions is that the prisoner is liable to be sentenced to life imprisonment. That is subject to the Courts sentencing discretion pursuant to s 19 of the Criminal Code. 

11.	The Courts in this country have treated the offence as serious as reflected in the sentences imposed for sexual penetration cases.

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 the case of the State v Gideon Pogosan CR 1245 of 2018 (Judgement of 20 April 2019 this Court sentenced the prisoner to 10 years after he was convicted on his guilty plea to digital penetration of his step-daughter. In that case while referring to a number of Court decisions made 10 years earlier with varying sentences the Court expressed the view that since the offence was prevalent the range of sentences for this type of offence should be increased.  

14.	I adopt the comments made in that case to the present case.

15.	The offence involving digital penetration is prevalent and it demonstrates that the sentences imposed have had no deterrent effect on offenders. It is the firm view of this Court that an increase generally in the sentences for such offence is wanting.

16.	The present case is a serious case of digital penetration by a father on his biological daughter.  Apart from the apparent breach of trust committed under the law it also involved serious breaches of moral and biological norms and attributes we as humans subscribe to. A custodial sentence must readily follow as a deterrent and for purposes of preserving society from such lascivious behavior. 

17.	In the prisoner’s favor is that he is a first-time offender. The charge stemmed from one incident only to which he pleaded guilty early. No injuries were sustained.

18.	The factors against him are that the victim was 15 years old. She was his biological daughter. He has other children also. He grossly abused the trust relationship that naturally exists between a father and daughter. The victim will live with the trauma and stigma attached with the offence for a long time. It is the opinion of the Court that the longtime effect on his family relationship and his relationship with others would be greatly affected.

19.	The offence is prevalent in this province and other provinces of this country. This type of recurrence of such offences reflect the type of people we are and as people with low moral attributes and standing. 

20.	The offence did not arise by accident or mistake or oversight. It was a deliberate lustful act by the prisoner. The consequences of his actions never featured anywhere on the prisoner’s behavior.  

21.	Under those considerations it is the opinion of the Court that a custodial sentence was appropriate.

22.	Finally, the position of his children including the victim according to the PSR has been considered. There must be considerations between their welfare and the greater effects on the breach of the law and public good. However, the Court is of the view that Court decisions should not be readily or fully compromised by family and welfare issues. 

23.	An offender who deliberately commits an offence ought to have known the consequences of breaking the law and especially causing unnecessary hardship to the family. That should not and cannot be left to the Court after a conviction.

24.	As to compensation it is the opinion of the Court that compensation is not a relevant consideration under the circumstances of this case. It sends a wrong message that anyone could commit such an offence, pay compensation and go scot free. That trend of thinking and expectation should be deterred from taking root.   

25.	It is the view of this Court that a custodial sentence that was higher than the sentence imposed in the Gideon Pogosan case is appropriate as this case involved biological relationships as opposed to Pogosan which involved a non-biological relationship. 

26.	However, in the exercise of discretion that view should be compromised in this case in view of the pleas by the prisoner’s children. 

27.	Therefore, a custodial sentence lower than the sentence in Gideon Pogosan is appropriate.

28.	The prisoner is sentenced to eight (8) years imprisonment. The time spent in custody awaiting trial and sentence shall be deducted. The prisoner shall serve the balance at CS Kavieng.
_______________________________________________________________
Public Prosecutor: 		Lawyers for the State 
Public Solicitor: 		Lawyers for the Defendant