State v Kauli [2019] PGNC 89; N7810 (24 April 2019)

N7810

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 279 OF 2019

THE STATE

V

HERMAN KAULI

Kerevat: Susame AJ
2019: 10, 16 & 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 – Prisoner 38 Years Of Age – Child 5 Years Of Age - Digital Penetration Vagina– 15 Years Head Sentence- Prisoner Assaulted And Dwelling House And Properties Damaged Through Act Of Retaliation - Special Mitigating Factor- 15 Years Reduced By 1 Years – 14 Years Effective Sentence.

Cases Cited:

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 Awi (2016) N6563
The State v Ndrowoh [2016 PGNC 181: N6374
The State v Ndrakum Pu – Uh (2005) 2949
The State v Paulus [2018] PGNC 241; N7339
The State v Peter Ania (unreported) CR N0. 627 of 2013
The State v Pomika Pomiks Nelson CR N0. 398 0f 2018 (unreported) (24 April 2019).

Counsels:

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

DECISION ON SENTENCE

24 April, 2019

1. SUSAME AJ: Prisoner pleaded guilty to a charge of sexual penetration of a child under 12 years of age contrary to s.229A(1)(2) 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. Prisoner was then 38 years of age and hails from Karo village Vunamarita within Gazelle District, East New Britain Province. The child was then 5 years old. The offence was committed at the family home at Karo village. Around 3 to 4pm on 7 December 2018 the child’s mother left her sleeping on the verandah and left to visit the nearby neighbours for a few minutes. Observing that the child was alone prisoner walked up the steps picked up the child and took her inside the house. Therein, he undressed her and forcefully inserted his fingers into her vagina and moved them in and out. The child woke up from the sleep. She felt pain and tried to call out to her mother but the prisoner placed his hand over her mouth.
   
3. The prisoner finished what he was doing just as the mother was returning to the house. He passed the mother as he was leaving without speaking to her. That made the mother suspicious. The mother walked quickly into the house and found her daughter in a distress condition crying. She told her what had happened. The mother checked her and discovered evidence of blood on daughter’s underpants. Immediately, the mother took her daughter to Nonga General Hospital for medical examination. Examination revealed that the child’s hymen was wide open. Prisoner fully admitted committing the offence in interview with the police investigators.
   

Allocutus.

4. Prisoner addressed the court first in regard to his sentence. Briefly he said: “I apologize to court. My first time in court. I apologize to the victim of what I have done to her. They also damaged my property, my garden my house. For injuries I received I ask for mercy of the court. I will accept whatever decision of the court. That is all.”
   

Submissions on Sentence.

5. 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

6. The court’s task is to decide the appropriate sentence to impose. First let me set out the offence.
   

Offence

S 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 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 Subjection (1) is guilty of a crime and is liable, subject to section 19, to imprisonment for life.

7. To decide the prisoner’s sentence court will be guided by the following:
   
   • ➢ Application of sentences principles,
   • ➢ Established sentencing guidelines,
   • ➢ Factual merits of the case,
   • ➢ Prisoner’s personal characteristics,
   • ➢ Factors in aggravation and mitigation,
   • ➢ Related decided cases.
     

Maximum Penalty

8. The offence carries the maximum life imprisonment penalty. Court may however, pass a sentence other than the maximum by invoking s19 sentencing powers. Maximum penalty can be considered if facts are very grave and serious to place the case in the worst category. Otherwise, maximum should be reserved. (Goli Golu v The State [1988-89] PNGLR 653). In Goli Golu v The State (supra) Wilson J 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). The 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.”

9. Those factors are not present to place the case in the worst category to attract the maximum penalty. Prosecution and defence concede to that.
   

Sentencing Guidelines in Sexual Offences.

10. Attempts were made to formulate sentencing guidelines in sexual offences in few cases. Couple of them, State v Penias Mokei (N0.2) (2004) N2635 and The State v Ndrakum Pu – Uh (2005) N2949 which Ms Ainui relied on. Seven questions were posed as a guide by the court in these judgments.
    
11. Cannings J later expounded the guidelines in the case of The State v Biason Benson Samson [2005] N2799 which Ms Shanks referred the court to. 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 being asked, requiring an answer. The answers should determine the mitigating and aggravating features of the case. It will further indicate to the Court 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?

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?”

12. 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.
    
13. Counsels cited few comparable judgments to assist the court. These are: The State v Paulus [2018] PGNC 241; N7339, Numapo, AJ.
14. Prisoner pleaded guilty. Prisoner 25 years of age-victim 8 years of age. Age difference of 17 years – Sexual penetration of vagina by fingers and penis. 10 years imprisonment

The State v Awi (2016) N6563, Liosi, AJ

15. Prisoner pleaded guilty. Prisoner aged 22 –child was 6 years old. Age difference of 16 years. Sexual penetration of vagina by penis – 10 years imprisonment - 3 years 7 months suspended for injuries sustained when police shot him during his apprehension
    

Stanley Sabui v The State

16. Appellant appealed against severity of sentence of 17 years imposed by the National Court for one count of sexual penetration of his 6 years old nephew. He had forcefully dragged him into the bushes and had anal sex with him causing him to suffer bruising, bleeding and pain. The court suggested head of 15 years imprisonment in a case involving a victim under 12 years of age. Court dismissed the appeal.

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

17. Prisoner sexually penetrated an 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 received a sentence of 16 years imprisonment.

The State v Ndrowoh [2016 PGNC 181: N6374

18. Prisoner pleaded guilty – First time offender - cooperated with police – no weapons used. Prisoner was father of the girl aged 10-sexaul penetration of vagina by penis – Serious breach of trust – Prisoner was sentenced to 19 years imprisonment.
19. All the cases cited were decided on their own peculiar facts and circumstances.

Mitigating Factors

• Prisoner pleaded guilty
• He is a first time offender
• Prisoner cooperated with police and made early admissions of guilt in the record of interview
• It was a one off incident committed alone
• Victim received no physical injuries nor contracted STI
• Victim’s family retaliated and destroyed his dwelling house and properties. Prisoner was also insulted and assaulted
  

Aggravating factors.

• Child was of tender age
• Huge age parity- 33 age difference
• The emotional and psychological impact on the child
• Prevalence of sexual offences against children.
  

20. Ms Anui submitted court should consider the circumstances of the case. She submitted for a 10 years sentenced to be imposed similar to The State v Paulus (supra)
21. Ms Shanks submitted aggravating factors outweighed the mitigating factors. She submitted offence of sexual abuse against children is quite prevalent by perpetrators who are known to the victims. She submitted for a 20 years sentence to deter offenders and potential offenders.

Court’s Opinion

22. The Society’s is calling for lengthy sentences have been taken on board with courts imposing lengthy sentences. A quick survey of cases shows there is an upward trend in sentencing from 10 years up to 18 years with few over 18 years.
23. To illustrate what the courts are saying I reproduce an excerpt of what the Supreme Court in Stanley Sabui said:

“In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that the sexual penetration of children under the age of 12 years is the more serious, hence the larger penalty. ....We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than the 15 years imprisonment.”

24. The society’s abhorrence against such heinous crimes of sexual penetration of young children is reflected in the statement by the Highest Court of the land.
25. Ms Shanks urged the court to consider the lifelong effects/impact on the victims of sexual offences. She referred the court to Supreme Court authorities of Hindemba v The State [1998]PGSC 48 and Setep v The State [2001]PGSC14. The court endorses the concerns as this is a relevant factor to consider.
26. Sexual abuse of children is quite prevalent especially by male perpetrators. Offenders who commit such crimes must be sent to jail for a longer period of time, not only as a punishment but also for personal and general deterrence.
27. In couple of my previous judgments I followed the recommendation of the Supreme Court in Stanley Sabui considered 15 years imprisonment should be the base sentence for this particular offence. I maintain that in this case.
28. Accordingly, prisoner is sentenced to 15 years imprisonment.
29. There are no other serious aggravating factors to move the court to go higher. I consider 15 years sentence is sufficient punishment.
30. Are there any special features of the case that court should consider partial suspension of the sentence?
31. Before the prisoner was lawfully convicted he was assaulted and his dwelling house and properties damaged in an act of retaliation by the victim’s family. I consider that in itself as punishment prisoner had received. That should apply as a special mitigating factor as I did in The State v Pomika Pomiks Nelson (2019) N7809. This was a case that did not require plea bargaining. From the very beginning prisoner made full admissions of his guilt of the offence in the record of interview. No further concession will be given in that regard.
32. Accordingly, 15 years sentence will be reduced by 1 year.
33. Prisoner is to serve the balance of 14 years with hard labour at Kerevat Goal.
34. Court orders that pre-trial custody period is deducted from 14 years.

________________________________________________________________
Office of the Public Prosecutor : Lawyer for the State
Office of the Public Solicitor : Lawyer for the Prisoner