State v Lopi [2019] PGNC 60; N7790 (5 April 2019)

N7790

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1122 of 2017

THE STATE

V

ARNOLD EKI LOPI

Kimbe: Miviri J
2019: 13^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Sexual penetration of a girl under 16 S229A (1) CCA – Plea – 34 year old man – 13 year old Girl – single act of sexual intercourse – serious breach of trust – Compensation paid – Intent of parties to end matter there & then – strong desire by parties for non-custodial term – discretion of court – PSR and MAR considered – first offender – strong deterrent sentence.
Cases Cited

Public Prosecutor v Bruce Tardrew [1986] PNGLR 91
The State v JB [2007] PGNC 66; N3224
The State v John Elipa Kalabus [1988] PGNC 120; N604 (
The State v Kepas [2007] PGNC 77; N3192
The State v Jonathan [2008] PGNC 31; N3315
The State v Tapin [2017] PGNC 23; N6626

Counsel:

C Sambua & E Kave, for the State

B Takua, for Defendant

SENTENCE

05^th April, 2019

1. MIVIRI, J: This is the Sentence of a man aged 34 years old who did sexual penetration of a 13 year girl contrary to Section 229A (1) of the Criminal Code Act.
   
2. This section reads;-

(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 Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(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 guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

3. Here the prisoner can be sentenced to imprisonment not exceeding 25 years because she was 13 years old at the time of sexual penetration having been born on 11^th October, 2003 by the clinic book, an age gap of 21 years. The indictment does not plead that a breach of trust, authority and dependency occurred aligning subsection (3) of that section and therefore drawing a maximum of life imprisonment upon the prisoner. But the definition of relationship of trust, authority or dependency under section 6A explains subsection (1) that proof is complete where there was an existing relationship of that between the accused and the victim at the time of the offence. And by that section in my view includes the situation here of the complainant and the prisoner. She was with the owner of the bus persons he entrusted to park the bus there. He knew those persons and exerted his intentions to her using that relationship. He did not dispute that fact and admitted by pleading guilty to it. There was by this fact evidence to warrant the invoking of subsection (3) of the section so that prisoner was liable to be sentenced to life imprisonment given. In my view given these facts the maximum prescribed penalty for this particular offence would be life imprisonment, which would only befall in a worst case as in John Elipa Kalabus v The State [1988] PGNC 120; N604 (27 October 1988). A determinate term of years is in order for the prisoner.
   

Short Facts

4. The short facts to which prisoner Arnold Eki Lopi of Klabi, Maprick East Sepik Province was charged and pleaded guilty to, was that he on the 8^th day of April, 2017 at Dami Compound Kimbe engaged in sexual penetration of Susan Rima a child under 16 years old. She was 13 years old.
   
5. On the evening of 07^th April, 2017 both Prisoner and Complainant Susan Rima were resident at Dami compound. He gave her his mobile phone and instructed that he would retrieve from her when he called her. He called her around 2 and 3 am in the morning, she did not answer she was fast asleep. But woke up to attend to the call of nature and heard the phone ring. She answered prisoner and he told her to bring it to him. She did intending to give it to him. He grabbed her and took her to the side of a neighbour’s house where he penetrated her vagina with his penis and had sexual intercourse with her and ejaculated. He left her thereafter.
   

Aggravation

6. Indicative in these facts is the planning that the prisoner undertook to successfully lure the complainant out of bed to him under guise of bringing the phone to him. It was clear he had thought about what he was going to do and how he was going to do and accomplish his intentions to eventually penetrate her sexually. It shows careful preparation to ensure that complainant was alone and not stopped from his intentions. Had the other girls in the house not raised the alarm that complainant was not in bed the matter would not have come to light. The parents of the complainant would not have searched for her and uncovered the plot. Prisoner would have continued his lust and abuse of her. The propensity of pregnancy and disease accompanying was not remote given her immaturity which was in his domicile to continue the crime. This was not a casual contact but an existing relationship because the prisoner brought the PMV bus he was driving to where the complainant and the other girls were resident. They cleaned the bus and he took advantage of her youth and immaturity to foster the offence. Complainant was with them because of an existing relationship as she was not resident with her parents who entrusted that she would be well there. He took advantage and abused that relationship. He was a 34 year old man married with three children with a wife who was still with him at the date of offence. He could have easily resorted to her to satisfy his sexual urges and not committed the offence. He abused the trust of his wife and his three children in him as their father.
   
7. He was intent on his sexual satisfaction and not on the fact that she was a 13 year old girl an age gap of 21 years. This is clear from the feeble attempt that exposed her to his intentions when the mother discovered her with grass on her back and head when she unveiled the bedding with which she covered herself sleeping. She was clearly a child and in no position to be able to have sex with a grown man as demonstrated by the medical report with the examination by one doctor Lee done on the 8^th April 2017 establishing, “Genital examination revealed dirt and grass at the pubic area. The perineum was wet. The hymen was torn and the vagina and cervix areas were reddened. Vaginal swab was taken and the laboratory reported the presence of spermatozoa. Appropriate treatment was given. There was clear evidence of sexual penetration and ejaculation.” He showed no sense of responsibility and care in the way that he acted. The embarrassment and shame of the act remained in her in the way that he acted.
   

Mitigation

8. On the other hand he was bold and accepted total responsibility for the offence by pleading guilty to the offence. And out of that sense paid compensation to the complainant and family in the sum of K5000 and a pig valued at K700.00 evidenced by a statutory declaration of the father of the complainant dated the 31^st July 2017 witnessed by village court magistrate, ward councillor, church leader and family member. A similar echoing statutory declaration was filed by the prisoner to this effect. Included also was the affidavit of the complainant dated the 18^th November 2017 with a pen mark drawn across that date and in pen inserted July 2017 signed purportedly by the complainant. A second similar one was that of one Felix Mou ward councillor of Banaule village and Mathew Rima father of complainant confirming prisoner had paid off K5000 and a live pig valued at K700 to the complainant and immediate relatives. He took pain to be able to mend the relationship and to stand up for his actions even without the matter coming to court. There was no existing fume between the two families. But it was a serious offence and was intended to ensure children as was the case of the complainant were protected against themselves and against those who abused them as was the case of the prisoner. The intent of parliament by the amendments to the criminal code in this particular area of the law was to be heeded in the raising of penalty.
   
9. A 34 year old man at the time of the offence married with three children originally from Klabu village, Maprik, East Sepik Province. And a first offender educated to grade 10 at Hoskins Secondary School employed as a field technician in plant breeding with Dami Oil Palm Research. There was no reason to commit the crime. He had his wife to whom he could have easily satisfied his sexual urges. It was clear from the evidence that he was affected by alcohol that he had consumed. But that did not excuse being self-induced. The fact remained that it was a serious offence committed upon a young child of 13 years old by a grown man who took advantage.
   
10. She did not understand fully the actions she was lured to partake. Particularly with the lifelong consequences of pregnancy which could not be ignored. It was fortunate that it did not arrive at that upon the complainant. But the fact remained that Prisoner was intent on self-gratification and there was immediate need for the protection of the child from predators such as the prisoner who preyed on the vulnerability, ignorance and innocence of the child and to heed the call of parliament.
    

Presentence and Means Assessment Reports

11. Defence counsel applied for a presentence and means assessment reports under section 13 and 25 of the Probation Act 1979 to be furnished to court in the determination of sentence upon him. These confirm in material what is set out above and are taken into account and given appropriate weight in the determination of sentence upon the prisoner. Including his personal particulars and circumstances the prisoner has expressed intention to further compensate on top of what he had already paid. It will not substitute the intent of parliament prescribed in the penalty provision of the maximum of life imprisonment but will be given due weight amongst others in the determination of a proportionate sentence fitting the offence by its facts and circumstances. Paramount is the fact that the prisoner has a good repute in the community evidenced by the leaders of that community. And the offence is out of character it would be his first offence. Like any other family his immediate family opt and ask a non custodial term upon the prisoner. The complainant also voices similar in the light of the compensation paid including her parents. These are relevant considerations that will be given due weight but will not substitute the intent of parliament prescribed under that section.
    

Issue

What then is an appropriate sentence against the prisoner for the offence?

Comparable cases

12. An appropriate sentence proportionate to the gravity of the crime will be determined from the facts and circumstances of the case some of which are set out above. It is notable that there was careful planning and execution to successfully commit the crime. Matters which are overt by the conduct of the prisoner are the intent to lure the complainant undetected to give him free hand to commit the offence. Though a single act of sexual penetration, complainant was introduced to sex at a very young age sustaining injuries as a result to her vagina per the medical report. But the offence is not coupled with other acts of indignity or sexual acts as in State v Kepas [2007] PGNC 77; N3192 (21 March 2007) where the 60 years old prisoner pleaded guilty that he inserted his fingers five times into the vagina of his 10 year old victim and then on the last occasion had sexual intercourse with her. Circumstances of aggravation were pleaded he was sentenced to 12 years IHL.
    
13. Here circumstances of aggravation are not pleaded in the Indictment. But he has pleaded guilty to a single act of sexual penetration which affirms his admissions to police in his record of interview initially. Given his facts his case will not draw as did that case. Nor would his case be aligned or likened to State v Jonathan [2008] PGNC 31; N3315 (12 March 2008) where persistent sexual abuse of a 16 year old led to pregnancy by the 22 year old single man accommodated by the parents of the victim in their house. He initially used a knife to threaten and to attain sexual penetration after which he persisted until she was pregnant. The court sentenced him to 18 years imprisonment.
    
14. That is not the case here. It is a more serious case than the present and therefore the sentence will not be likened. On this note it is compatible to note the extreme in State v JB [2007] PGNC 66; N3224 (20 September 2007) where prisoner persistently sexually penetrated his two daughters, one 15 years old and the other 13 years old over 10 months six weeks. It was a very serious breach of trust between father and daughter. The 13 year old daughter was infected with sexually transmitted disease in the process. Prisoner pleaded guilty. The court imposed a cumulative term of 26 years imprisonment but reduced on totality to 20 years IHL.
    
15. The present would not fit that sentence given its facts which are extreme and serious. But would be similar to State v Tapin [2017] PGNC 23; N6626 (1 February 2017) where the prosecutrix was 13 years old and the prisoner there was 38 years old. Twelve years imprisonment was imposed. In many respects this would be appropriate here considering all set out above. Together with the prevalence of the offence. Including that the prisoner given his age should have known better and led by example to deter but has saved the complainant the embarrassment and anxiety by pleading guilty. It is a genuine plea made out with substance in the compensation paid particulars set out above.
    
16. I have considered part suspension of the sentence in the light of Public Prosecutor v Bruce Tardrew [1986] PNGLR 91 (2 April 1986) but adjudge that gravity and aggravation of the offence outweighs mitigation. Had it not being for the payment of the compensation set out above the sentence would have been higher given the way he carefully set out to get the complainant out late in the early hours of the morning and to commit the offence. She is just 13 years old and he a married man of 34 years old.
    
17. The sentence in all the circumstances is 10 years imprisonment in hard labour and I so impose that upon the prisoner Arnold Eki Lopi of Klabi, Maprick East Sepik Province for the crime of sexual penetration committed upon Susan Rima on the 8^th day of April 2017 at Dami Compound, Kimbe.
    
18. I order that Bail money is refunded forthwith.
    
19. Any period of time spent in pre-trial custody prior to grant of bail will be deducted forthwith from the head sentence. He will serve the balance in jail.
    

Orders Accordingly.

__________________________________________________________________

Public Prosecutors: Lawyer for the State

Public Solicitors : Lawyer for the Defendant