N8536

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 896 OF 2017

THE STATE

V

ADOLF FRANCIS

Kokopo: Suelip AJ
2020: 3rd, 9th & 25th June
CRIMINAL LAW - Sentence - Plea - Guilty - persistent sexual abuse of a child, Criminal Code as amended, s 229D (1)(6) - Division JV.2A 
CRIMINAL LAW - Sentence - Mitigating factors - early plea of guilty- no existing relationship of trust, authority and dependency - Co-operation with police - young and first time offender, Aggravating factors - persistent sexual abuse on two separate occasions - very young victim - age difference of 13 years - use of force - lack of consent - physical and emotional trauma experienced by victim - victim will live with stigma and discrimination - sentence of 20 years less pre-sentence term. 
Cases Cited 

Lawrence Simbe v The State [1994] PNGLR 38 
Goli Golu v The State [1979] PNGLR 653 
Stanley Sabui v The State (2007) SC 866 
The State v. Willie (2012) N5170 
The State v. Ben Sakias (2011) N4238 
The State v. Dominic (2016) N6290 
The State v. Jonathan (2008) N3315 
The State v. Billy Paulo (2011) N5286 
The State v. Steven Siname (2005) N3908 
The State v. JB (2005) N3224 
The State v. Peter Lare (2004) N2557 
The State v. Pennias Mokei (No.2) (2004) N2635
The State v. Eddie Trosty (2004) N2681 
The State v. Kemai Lumou (2004) N2684
The State v. Wabe Kapak (2008) CR 894 of 2008
The State v Tardrew [1986] PNGLR 91
Legislations
Criminal Code as amended, s. 229D (1)(6)-Division 1V.2A and s.19 Criminal Code (Sexual Offences and Crimes Against Child) Act 2002
Counsel

G Tugah, for the State
 S Pitep, for the Prisoner
SENTENCE 
25th June, 2020
 
	1. 	SUELIP AJ: On the 3 June 2020, Adolf Francis, male aged 21 years old was indicted on two (2) Counts of persistent sexual penetration pursuant to s. 229D (I)(6) of the Criminal Code, as amended. It is alleged that the offence was committed between 30 July 2016 and 15 March 2017 at Ivon Block at Warongoi, East New Britain Province. 
	
2. 	The prisoner's personal particulars are that he is 21 years old and was educated up to grade 5. He works for the family in their coconut and cocoa block and is single. His father is deceased and he lives with his mother. He is a member of the United Church. 

3. He appears from custody and he pleaded guilty to the charge. 

4. 	This is now my decision on sentence. 
Facts 

5. 	The State alleged that between 30 July 2016 and 15 March 2017, the prisoner persistently sexually penetrated the victim then 7 years old. The abuses occurred at Ivon Block at Warangoi, Sinivit LLG, Pomio, East New Britain. 
6. 	The first incident happened on an unknown date in the month of July in 
2016 when the victim was 7 years old. She was walking to school when the prisoner rushed to her, grabbed her and then dragged her to the nearby bushes beside a creek. He then removed her clothes, pushed her to the ground and sexually penetrated her. She was struggling to get free but prisoner held onto her. Before he inserted his penis into her vagina, he told her to close her eyes. Then he had sex with her by introducing his penis into her vagina. 

7. 	Then in 2017, on the 5th of March, the victim was on her way to church following a bush track. The prisoner was at his brother's garden collecting greens when he saw the victim. He went and hid behind the business near the bush track. When the victim walked past, he came from behind her, grabbed her and pulled her into the garden. There, he removed her underwear, laid her on the ground, told her to close her eyes and he sexually penetrated her by inserting his penis into her vagina. After that he told the victim to open her eyes and go to church. 

8. 	He is charged with persistent sexual penetration pursuant to s. 229D (l)(6) of the Criminal Code. 
Antecedent report 

10. The prisoner was arrested on 15 March 2017. He has been held in custody for a period of 3 years, 3 months and 10 days to date. 
Allocutus 
11. When administering allocutus, the prisoner was asked if he had anything to say on penalty. He replied that he did not. 
Mitigating factors 
12. The mitigating factors in the prisoner's favour are his early plea which has resulted in saving Court's time and State's expenses that has resulted in this early outcome. In addition, he is a young and first-time offender who cooperated well with the police. He did not use any weapon on the victim and the victim did not contract sexually transmitted diseases or fall pregnant. There is also no aggravated assault, and there is no existing relationship of trust, authority and dependency. 
9. 	The prisoner has no prior convictions. 

Pre-sentence term 
Aggravating factors 
13. The aggravating factors against him are that he engaged in acts of persistent sexual penetration with a child who was of tender age with a big age difference of 13 years. There was also some level of force used to detain the young victim. The victim is now physically and emotionally traumatized and she will live with the stigma and discrimination for the rest of life. 
14.	The prisoner did not show any remorse for the offence he committed. 
15.	At the time that the prisoner engaged in these acts, the victim was only between 7 and 8 years old and by doing so, the prisoner broke the law of this country. This type of offence is prevalent; an offence for which the prisoner has to face the consequences of his actions .
The offence 
16. Section 229D(l)(6) of the Criminal Code provides: 

(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. 
(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. 

17. In order to prove the offence of persistent sexual penetration of a child under s229D(l)(6) of the Criminal Code, the State must show evidence to establish that the prisoner engaged in an act of sexual penetration with a child and that there is more than one occasion of the offence being committed to the same victim. 
18. I have read the depositions and I have confirmed the plea of guilty. 
Submission on sentence
 
19. Ms Pitep on behalf of the prisoner submitted that although the Criminal Code Act gives a maximum penalty of life imprisonment for the offence of persistent sexual abuse, Section 19 of the Code gives the Court the discretion to decide whether or not the maximum penalty should be imposed in a particular case. She submitted it is settled law that each case must be decided on its own facts. See Lawrence Simbe v State [1994] PNGLR 38. 

20. 	Ms Pitep further submitted that this view is also expressed in the 
homicide case of Goli Golu v State [1979) PNGLR 653, in which the Court held that the maximum penalty must be reserved for the worst type case and this approach has since become trite law applying to all other offences. She submitted that this is not a worse type case and therefore should not attract the maximum penalty. 
21. In following the suggestion in Stanley Sabiu v State (200 7) SC 866, Ms Pitep proposes the appropriate starting point for sentencing in this matter would be 15 years. This is primarily because of the tender age of the child who was 7 years old up to when she was 8. 
22.	The prisoner's lawyer relied on the following cases: 
	(i) 	In The State v Willie (2012) N5170, there was persistent sexual penetration of a 15 year old minor. Facts do not establish the existence of breach of trust, authority or dependency. The offender who was 28 years old pleaded guilty and was sentenced to 10 years imprisonment. 
	(ii) 	In the Kokopo case of The State v Ben Sakias (2011) N4238, the offender in this case pleaded guilty to the offence of persistent sexual abuse. He was 28 years old and the victim was 14 years old with 14 years age difference between the both of them. There was a breach of trust since the Offender was the victim's uncle and the victim got pregnant as a result of the abuse. He was sentenced to 
12 years imprisonment. 
	(iii) 	In the Pomio case of The State v Dominic (2016) N6290, the 22- year-old offender was charged with persistent sexual abuse of a 15 year old girl. There was an 8 year difference in their ages however a relationship existed between the offender and the victim which the parents of victim said they knew about. The offender pleaded guilty to the charge. After considering the mitigating and aggravating factors, the offender was sentenced to 6 years imprisonment which was wholly suspended on probation terms. 
	(iv) 	In The State v Kuyap Toki Jonathan (2008) N3315, the offender pleaded guilty to the offence of persistent abuse of a child under section 229D of the Criminal Code Act. The offender was cared for by the family of the victim. The offender was 21 years old at the time of the incidents. The victim was 13 years old. There is an 8 year difference in their ages. The Court found that the offender had on four (4) different occasions, with the use of force and weapons penetrated the victim's vagina with his penis. The victim fell pregnant as a result of these sexual encounters. The Court sentenced the prisoner to 18 years imprisonment less the time he had spent in jail. 
23. It was also submitted that although it is admitted that there are some circumstances of aggravation in this case that make it quite serious such as the tender age of the child being only 7 years old when the abuse started, the mitigating factors outweighs the circumstances of aggravation. 
24. Ms Pitep submitted that since the prisoner's date of arrest on 15 March 2017, his pre-sentence term of 3 years, 2 months and 4 days should be deducted from the head sentence. 
25. 	Despite the lawyer's submission that the prisoner has pleaded to the 
Court to wholly suspend the reminder of his sentence, there is no such pleading anywhere in the depositions, statements or during allocutus, thus he has not shown any remorse for committing this offence apart from being a youthful offender and of good character which they believe he will not be a threat to society. The prisoner asks the Court to use its discretion pursuant to Section 19 and suspend the balance of his sentence with strict conditions. 
26. Mr Tugah for the State, in his oral reply, submitted that the prisoner has not expressed remorse for committing this offence. He further submitted on the aggravating factors which are as follow: 

(i)	persistent sexual abuse on two separate occasions
(ii)	very young victim 
(iii)	big age difference of 13 years between the prisoner and the victim
(iv)	 use of force on the victim 
(v)	lack of consent from the victim
(vi)	physical and emotional trauma experienced by victim, 
(vii)	victim will continue to live with this stigma and discrimination.
 
27.	Mr Tugah relies on the following cases:- 
(i)	In The State v. Billy Paulo (2011) N5286, the prisoner pleaded guilty to one count of sexual persistent abuse of his 7 year old daughter with circumstances of aggravation. He committed the offence again when his daughter was 11 years old. He was sentenced to 20 years less pre-sentence term. 

(ii)	In the Kokopo case of The State v Ben Sakias (2011) N4238, whilst the 14-year-old victim was sick and in the care of the prisoner who is her uncle, he had persistent sexual abuse with her. In the following year, he committed the offence again. As a result of the persistent sexual abuse of the girl, she became pregnant and gave birth to a small girl. Naturally, as a consequence she also stopped going to school. The prisoner was sentenced to 12 years imprisonment less pre-sentence term. 
	(iii) 	In another Kokopo case of The State v. Steven Siname (2005) N3908, the prisoner pleaded guilty to three counts of persistent sexual intercourse with his biological sister when she was 15 years old against her wilt. The victim got eventually fell pregnant gave birth to a baby but, it died soon after it was born. The victim said, the baby which died belonged to the prisoner. For counts 1 and 2 the Court imposed cumulative sentences of 28 years and for count 3, the Court imposed a concurrent sentence of 10 years. 
	(iv) 	In the third Kokopo case of The State v. JB (2005) N3224, the offender entered a plea of guilty to two counts of persistent sexual abuse, the particulars being sexually penetrating 17 year old daughter on two occasions In a period of six weeks and also to sexually penetrating his 15-year-old daughter on at least two occasions commencing when she was 13 years and nine months of age over a period of one year and 10 months and infecting her with sexually transmitted diseases. The appropriate sentence on count one, persistent sexual abuse of the 7-year-old daughter, being at least two occasions involving an act of penetration over a period of one year 10 months between the ages of 13 years nine months and 15 years, is 16 years; The appropriate sentence on count two, persistent sexual abuse of younger daughter, being at least two occasions involving an act of penetration over a period of one year 10 months between the ages of 13 years nine months and 15 years, is 16 years. The offences involved different victims and therefore the sentences should be served cumulatively, a total of26 years. 
28. 	Mr Tugah agrees with the prisoner's counsel that the starting point for 
sentencing is 15 years. However, he further submitted that whether the 15 years is increased or decreased depends on the peculiar circumstances of the case with consideration to the mitigating and aggravating factors. 
29. There is one factor that sets this case apart from all the cases presented by the State counsel and that is the fact that there is no evidence of the existence of a relationship of trust, authority or dependency, and the breach thereof. This is significant and in the prisoner's favor. 

Determining sentencing 
30. In determining sentence and as submitted by counsel for the prisoner, this Court notes that ""The general principle is that the maximum punishment should be awarded only in the worst cases" as discussed in Golu Golu v The State [1979] PNGLR 653 that each case should be considered on its own set of facts and circumstances, 
31. Furthermore, the Court has considerable discretion whether to impose the maximum penalty or a lesser sentence under Section 19 of the Criminal Code. Section 19 of the Criminal Code provides among others, the following penalty that can be imposed: a shorter term may be imposed [subsection (1)(a)], a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (l)(b )], a good behavior bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d), the offender can be discharged and the sentence postponed [subsection (l )(f)] or a part of or an of the sentence can be suspended subject to conditions (subsection (6)]. 
32. The issue before the Court is whether the prisoner should be sentenced according to the penalties prescribed under s 229D (1) & (6) of the Criminal Code Act. Ms Pitep submitted that the starting point is 15 years as suggested in Stanley Sabiu v State (supra). Ms Pitep further submits that this is not a worse type case and therefore should not attract the maximum penalty of life imprisonment as expressed in Gali Golu v State (supra). 

33. Mr Tugah for the State agrees that the starting point for sentence is 15 years but says whether the 15 years is increased or decreased depends on the peculiar circumstances of the case with consideration to the mitigating and aggravating factors. 

34. This Court is therefore tasked to consider and determine an appropriate sentence to be imposed on the prisoner. In order to determine such a penalty, I have to firstly determine whether this case is such a case that warrants the imposition of the maximum penalty. This means that I would have to determine whether the facts of this case are so serious that the maximum penalty must be imposed, then I may take that into consideration and impose the maximum penalty. On the other hand, if the facts and circumstances of this case are not so serious, then this Court may consider imposing a sentence below the maximum penalty. Having stated all of the above, this Court also has a very wide discretion to impose a sentence below the maximum penalty under Section l 9 of the Code based on proper judicial principles. 

35. 	I note that there is no Pre-Sentence Report with views of the community where the prisoner comes from including the overall justice administration relating to sentencing principles and its objective in making our society safe and secure in which every man, woman and child is free to live and not be afraid. Hence, I am not assisted in this regard. 

36.	Equally important to the consideration of severity of sentence is the recognition that sexual offences are on the increase. More so, such offences occurred in family settings or situations where offenders in such cases stood in positions of trust, authority and dependency towards their victims. In order to address these problems, our law makers had introduced amendments to the Criminal Code by enacting the Criminal Code (Sexual Offences and Crimes Against Child) Act 2002 purposely to deal with such offences. 

37. 	These amendments also have prescribed tougher penalties for these offences and the circumstances of aggravation. This Court's role in dealing with off enders who breached such laws are to give effect to the intentions of our Legislators (Parliament) and that is to impose appropriate sentences on offenders who breach this law and must be punished for their doing wrong. It is equally important for offenders to realize that such wrongs will not go unpunished and where warranted offenders are incarcerated to prevent them reoffending. At the same time and most importantly, the imposition of tougher punishment is seen as a deterrent to others so that they too, do not commit the same offence or (any other offence). 
38. 	Counsels have assisted this Court in citing some relevant cases in order to 
determine penalty. Cases cited by counsel for the State differ to this case primarily in regard to the breach of trust wherein the prisoners in those cases are related or in positions of trust, authority and dependency. The case precedents submitted by the defense counsel bears more relevance to this case. 
39. 	In consideration of the facts and the circumstances of this case with the 
case precedents cited by both counsels, I am of the view that this is not a worse case and so, I will impose a lesser penalty to the maximum penalty of life imprisonment. 
40. 	In order to arrive at a decision as to whether to increase or decrease the 
head sentence; I have taken into account the guidelines identified in the case of State v Pennias Mokei (No.2) (2004) N2635 to assist this court determine penalty. Given that rationale, the process of sentencing is not governed by any definite process. It is a discretionary exercise and thus the weight given to an these considerations are not measured by a measuring tool. The standard of assessment given to any of the mitigating or aggravating factor depends entirely on the prevailing circumstances and facts of a case. For instance, in this case, the age of the victim and the age difference between the offender and the victim are important considerations. Where there is a small age difference, then this may be regarded as a mitigating factor. 
41. Overall, where the victim is of tender age, then the offence is more serious. Also important to these considerations are whether there is consent or no consent. Whilst the absence of consent is not an element of the offence, this can still lead to an offender being found guilty of the offence as held in the case of the State v Eddie Trosty (2004) N2681 where there was real consent to sexual penetration. In a case where there was no consent; then this is a serious aggravating factor, particularly where a weapon ( e.g. a bush knife) is used as in the case of Kemai Lumou (2004) N2684 and Wabe Kapak (2008) CR 894108 or if there is aggravated physical violence or physical injury caused to the victim and whether this is an isolated incident or is part of a pattern of abuse as held in the case of the State v Peter Lare (2004) N2557 who was labeled a sexual predator.
42. 	Another matter which was also taken into consideration is the conduct of 
the offender and how the offence has been dealt with. He has not shown remorse. 

Application of facts to the law 
43. The mitigating factors in the prisoner's favour are his early plea which has resulted in saving Court's time and State's expenses that has resulted in this early outcome. In addition, he is a young and first-time offender who cooperated well with the police, He did not use any weapon on the victim and the victim did not contract sexually transmitted diseases or fall pregnant. Moreover, there is no existing relationship of trust, authority and dependency. This is against the aggravating factors that he engaged in acts of persistent sexual penetration with a child against her will who was of tender age with a big age difference of 13 years. Although the prisoner submitted that there is no aggravated assault, there was also some level of force used to detain the young victim. The victim is now physically and emotionally traumatized. She will live with the stigma and discrimination for the rest of life. 

44. What unimpressed me most is that the prisoner did not show any remorse for the offence he committed. At the time that the prisoner engaged in these acts, the victim was very young and vulnerable and by doing so, the prisoner broke the law of this country. This type of offence is prevalent; an offence for which the prisoner has to face the consequences of his actions. 
45. 	While it is apparent that the list of mitigating factors and aggravating 
factors are about the same, these factors should not be seen as diminishing the gravity of the crime. The prisoner preyed on a young child. This is a factor that outweighs any mitigating factor in his favor and calls for a penalty to be imposed that is within the bounds of reason and principle of decency and trust. This type of offence and similar offences against children are on the increase. Therefore, there is a need to impose tougher penalties for purposes of deterrence to stop offenders from re-offending and others from committing the same offence. Children should be protected irrespective of whether they are your flesh or blood. There is a moral obligation on every man to protect young vulnerable innocent children and keep them safe from harm. 
46. Having considered all of the above, I am satisfied that the aggravating factors are significant such as to warrant fixing the starting point of sentence for sexual penetration at 15 years. 
Should all or part of the bead sentence be suspended? 
47. Counsel for the prisoner submitted that this Court suspension of the sentence either partly or wholly after passing sentence. Suspension of a sentence is at the discretion of the Court, to be exercised on proper principles. 

48. In the State v Tardrew [1986] PNGLR 91, the Supreme Court set out three broad, but now exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. 
49. I am not satisfied that the prisoner is eligible to any suspension for sentence under either of these categories especially when he failed to express any remorse for the offence he committed on a child of tender age against her will, and in the absence of a Pre-Sentence Report, or statements from the community where the prisoner comes from, it is neither favourable nor unfavourable to the prisoner. 
50.      In consideration of all the above factors, I make the following orders:
  (1) The prisoner is sentenced 20 years imprisonment. 
 (2) 	The prisoner was arrested on 15 March 201 7. His pre-sentence term of 3 years, 3 months and 10 days is deducted from the head sentence. 
 (3) 	The balance of the sentence of 16 years, 8 months and 20 days imprisonment will be served in custody at CIS, Kerevat. 
(4)      None of the sentence is suspended. 
_____________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner