State v Leleno [2019] PGNC 493; N9226 (13 November 2019)

N9226

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1268 OF 2018

THE STATE

v

STEVEN LELENO

Alotau: Toliken J.
2019: 15^th August, 13^th November.

CRIMINAL LAW – Sentence – Sexual penetration of a child – Guilty Plea – Child 14 years old – Uncle/niece relationship – Consensual intercourse – Pregnancy – Disrupted education – First offence – Early plea – Co-operation with police – Compensation – Offer for reconciliation - Appropriate sentence – 8 years less time in pre-sentence custody- Nil suspension – Criminal Code, s 229A (1)(3)

Cases Cited:
Avia Aihi v The State (No.3) [1983] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
The State v Panut (2019) N7787
The State v. Pastin (2014) N5623

Counsel:
A Kupmain, for the State
N Wallis, for the Prisoner

JUDGEMENT ON SENTENCE

13^th November, 2019

1. TOLIKEN, J. Steven Leleno, on the 15^th of August 2019, you pleaded guilty to an indictment charging you that on the 30^th day of October 2017 at Daodao Point Suau, you sexually penetrated one Vali Gima, a child under the age of 16 years by inserting your penis into her vagina. At the time of the offence, you stood in a position of trust, authority and dependency as Vali Gima was a niece of yours. In doing that you contravened Section 229A (1) (3) of the Criminal Code.
   
2. The brief supporting facts are that on 30^th of October 2017, you and others including the complainant Vali Gima went fishing at Daodao Point on Bonarua Island.
   
3. You and the victim were on one canoe while the others were in other canoes fishing some distance away from the two of you. At that time, you had sexual intercourse with the victim who was 14 years old. She was a niece of yours being your wife’s younger sister’s daughter.
   
4. The offence carries a maximum penalty of life imprisonment.
   
5. The law says that an offender may only be sentenced to the maximum penalty prescribed for the offence in a worst case. The law also says that a sentence must reflect the facts and circumstances of each case. Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92. And so, because no two offenses can ever have the same facts and circumstances, sentences will differ also.
   
6. My task here is therefore to ascertain what an appropriate sentence for you should be.
   
7. At the outset I want to say though that yours is not a worst case of this type of offence. Therefore, I will not impose the maximum penalty on you.
   
8. You are originally from Bonarua Island in the Suau RLLG, Alotau District of Milne Bay Province. At the time of the offence, you were residing at your wife’s village at Iloilo on mainland Suau.
   
9. You are now 34 years old, and you are married with 4 children. You are the fourth in a family of 6 siblings. While your father has passed away, your mother is still alive and is living in the village. You are a member of the Destiny Church.
   
10. You were educated up to Grade 6 only. After leaving school you assisted your family run a passenger ferry. You’re a first-time offender and prior to being granted bail you spent 4 months and 5 days in custody.
    
11. You apologized for your offence as well as to your victim, her parents and the community. You said you have realized your mistake and ask to be given probation, so that you can stay with your family. You said you have already paid K1000 compensation and will pay a further amount and reconcile with the victim and her family. And because this is your first offence you promised not to re-offend.
    
12. Mr. Wallis submitted on your behalf that since this is not your worst case, an appropriate sentence for you should be in the range of 7-9 years less the period which you spent in pre-trial/sentence custody. He said that the victim consented to having sex with you and you are not a threat to society. Your mitigating factors, counsel submitted also justified a sentence in the range he suggested. Finally, counsel submitted yours is an appropriate case for the court to exercise its discretion to suspend a part or the whole of your sentence.
    
13. Mr. Kupmain for the State submitted that there are some serious aggravating factors against you. There is a huge age difference of 19 years between you and the victim, you disrupted her education because she got pregnant at the age of 14 years, and she suffered social stigma within the community by the fact that she was impregnated by a family member.
    
14. Counsel said the court should not place much weight on the fact that the victim consented because Parliament had decreed that children under the age of 16 years are incapable of consenting to acts of sexual nature. Counsel therefore submitted that an appropriate sentence be 15-16 years.
    
15. I accept the aggravating factors submitted by Mr. Kupmain. However, I accept the following mitigating factors; you pleaded guilty to the charge thus saving time and money for the State had you forced a trial. Most importantly you saved the victim the trauma of having to recount her defilement if she had come to court. You were of prior good character prior to your offending; you are a first-time offender; you co-operated with the police by making admissions in your Record of Interview; you did not use any physical violence or weapons on the victim or cause her any physical injuries thus was an isolated incidental and you acted alone; you did not infect the victim with a Sexually Transmitted Infection (STI) and this was a case of consensual intercourse and you’ve paid a K1000 compensation.
    
16. I have also considered your pre-sentence report. It’s a well-balanced one. While the author recommends a part custodial and part suspended, I am concerned about the fact that he says that your family has a history of sexual abuse thus you may pose as a threat to your community. While this must be verified by evidence, it is nevertheless a concern that ought to be taken seriously as the last thing we want is to release someone on probation only for him to continue to commit abuse on other girls. The writer recommends close supervision and restraining orders if you are to be considered for probation.
    
17. So, what should be an appropriate sentence for you?
    
18. There are significant aggravating factors against you and despite some good mitigating factors, these have to be weighed against the adverse effects your actions have had on the victim, regardless of the fact that she may have consented.
    
19. You are an uncle of the victim, not necessarily a blood relative but nevertheless you stood on a position of trust which you abused. You took advantage of her ignorance and the hormonal changes obviously going on in her body and you defiled her. Children below the age of 16 years old are vulnerable to sexual abuse. They are bound to react to their heightened sexual impulses and more often than not end up hurting themselves in the process. Some get pregnant, others contract sexually transmitted diseases while some get exploited financially or commercially and end up prostituting themselves at an early age. Some end up with disrupted education which really for young girls in the village is a sentence to servitude and hopelessness. Those are some of the reasons Parliament decreed very stiff penalties for this type of offence.
    
20. As we have seen the victim here was 2 years below the age of consent, got pregnant and disrupted her education. As a mere child she was forced into raising another child - her own infant which is not an easy task for a 14-year-old girl. Her child unfortunately will have to grow up without a father to provide for him/her and guide him/her along in life. Here, it can be said that you committed an offence not only against the victim but also against her child because that child does not deserve the life that obviously lies ahead of him.
    
21. You must therefore be punished with an appropriate sentence that must not only deter you personally but others as well because this offence is very prevalent in this province and the country as a whole.
    
22. Sentences for the cases cited to me by your lawyer carried sentences ranging from 4 years to 18 years. In The State v Panut (2019) N7787 the offender forcefully sexually penetrated his 14-year-old niece while he was intoxicated. He was sentenced to 18 years despite some mitigating factors. On the lower range is The State v. Pastin (2014) N5623 where I sentenced the offender to 5 years imprisonment for sexually penetrating his 15-year-old girl friend. The act was consensual, but the victim there got pregnant, and her education was disrupted as well.
    
23. Pastin is similar to your case except that the offender there was a youth of 15 years and thus was as much as uninformed as his willing victim.
    
24. You, on the other hand were a mature 33-year-old man, who abused the trust reposed on you. You sexually penetrated your niece and impregnated her. She got pregnant with your child and obviously as I’ve said earlier must raise her child alone in the face of stigma among her peers, relatives and possibly a community that frowns upon and ridicules girls and women who are unfortunate enough to find themselves in such predicament.
    
25. Having said that, I feel that an appropriate starting point for you should be 10 years. And considering your guilty plea and other mitigating factors, an appropriate head sentence for you should be 8 years.
    
26. I therefore sentence you to 8 years less the time you spent in pretrial/ sentence custody which is 4 months and 5 days. Finally, for the purpose of sending a strong message of deterrence none of the sentence will be suspended. You will serve the balance of your sentence at Giligili Corrective Institution.
    
27. That is the sentence of the court. You may appeal to the Supreme Court if you are not happy with sentence.
    

Ordered accordingly.

___________________________________________________________
P Kaluwin, Public Prosecutor: Lawyers for the State
L B Mamu, Public Solicitor: Lawyers for the Prisoner