State v Mumio [2020] PGNC 519; N9946 (26 November 2020)

N9946

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1439 OF 2016

THE STATE

V

EREMAS KASPER MUMIO

Kokopo: Suelip AJ
2020: 15^th, 28^th, 29^th September & 26^th November

CRIMINAL LAW – sentence – plea – sexual penetration of child under 16 years s. 229A(1) Criminal Code – consensual sex – complainant does not want prisoner to remain in prison – complainant wants prisoner to pay compensation – sentence to 8 years - custody term deducted – balance suspended with conditions

Cases Cited

Golu Golu v State [1979] PNGLR 653
Stanley Sabiu v State (2007) SC866
The State v. Biason Benson Samson [2005] N2799
The State v. Eddie Trosty (20.5.04) N2681
State v Lesson David (25.7.06) CR. No. 561 of 2005
State v Paul Wakara (19 Sept. 2006) CR. No.914 of 2006
State v Lemek Jubin, CR. No. 1142 of 2016 (22 October 2018)
State v Frank (2017) N6732
State v Chadrol (2011) N4648

Counsel

C Sambua & G Tugah, for the State
JM Ainui & S Pitep, for the Prisoner

SENTENCE

26^th November, 2020

1. SUELIP AJ: On 15 September 2020, the prisoner pleaded guilty to and was convicted on a charge of sexual penetration of a child under 16 years old contrary to section 229A(1) of the Criminal Code.

2. This is now my ruling on sentence.

Facts

3. The facts are that at about 1.00 pm on Monday, 7 September 2015, the complainant was alone at the garden at the Bailu Plantation area in Kokopo, East New Britain Province. The complainant was 14 years and 9 months and was doing grade 5 at Baliora Primary School in Kokopo at that time. Whilst the complainant was at the garden, the prisoner arrived and sexually penetrated her by inserting his penis into her vagina and as a result of the act of penetration, the complainant became pregnant, left school and gave birth to a baby boy. When he sexually penetrated the complainant, he committed a crime of sexual penetration of a girl under the age of 16 years who was then aged 14 years and 9 months old thereby contravening section 229A(1) of the Criminal Code.

The offence

4. Section 229A(1) of the Criminal Code provides:

(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.

5. The maximum penalty for the offence is imprisonment for a term not exceeding 25 years.

Personal particulars

6. The prisoner is 35 years old and come from Yumielo village in the Kandrian/Gloucester District of West New Britain Province. He is the eldest in a family of six siblings and he has two sisters and three brothers. He completed his primary education at Yumielo Primary School but could not continue due to poor results. He never had any formal employment but relies on subsistence farming for his needs when he sells at Kokopo for income. He does not have any prior convictions as reported in the Antecedent Report.

Allocutus
7. During allocutus, he expressed his respect for the Court. He also said he is innocent of the charge. He said he knows that his wife is the complainant and they both have a child. He said her father did not allow his relationship with his daughter and burnt the clothes he bought for her. He said that when the complainant gave birth to his child, her father went to the hospital and took the child away when the child was only 2 days old. He said he feels sorry for his child. He also said he was arrested on 20 June 2016 and was accused of raping his own wife. He said he is worried about his wife and child.

Mitigating factors

8. In his favour, the mitigating factors are:

(a) he pleaded guilty to the charge and saved the Court’s time and money in calling in the victim and other witnesses.

(b) he cooperated well with the Police and readily made admissions in his Record of Interview.

Aggravating factors:

9. Against him are the following aggravating factors:

(a) lack of consent.

(b) age disparity of 16 years between him and the complainant.

(c) he used some level of force during the sexual penetration (penile penetration of the vagina).

(d) he impregnated the young girl, and she gave birth to a baby boy.

(e) as a result, she left school and she is no longer schooling. She was doing Grade 5 at that time at Baliora Primary School.

(f) the complainant will live with the stigma and discrimination for the rest of her life.

(g) he did not voluntarily surrender himself to the police.

(h) prevalence of the offence in the society and the need of deterrence. The offence is very prevalent particularly in this province and in the country.

10. In the pre-sentence report, the complainant admitted she had consensual sexual intercourse with the accused, and she had given birth to a child. She says they were living together but her father did not allow their relationship. During her pregnancy, the complainant said the prisoner supported and provided for the child. The child is now with her grandparents in New Ireland Province.

11. The complainant’s father confirmed in the report that he did not allow the relationship with his daughter as she is still young, and he does not have a good background. He said they are from the Highlands and their women are considered as valuable assets where the family would benefit from the bride price. He wants the accused to be sent to jail.

12. Both the pre-sentence and means assessment reports say the accused does not have any means of income. However, he said that if the Court orders compensation, he will ask for sufficient time to pay compensation. He said he is sorry for his actions but he said he was assaulted and threatened to be killed by the complainant’s father.

13. The author of both reports concludes that the accused is a good person but because of the offence, he might be a danger to the community. However, it is assessed that since he has friendly character with no prior convictions, the author finds the prisoner to be a suitable candidate for probation. He says that the family of the accused is willing to pay compensation of K4,000.00, with a pig worth K500.00 and K200.00 worth of food and there should be a reconciliation between the families.

Submission on sentence

14. Both counsels agree that Section 229A (1) of the Criminal Code, sets out the maximum penalty of the offence to be imprisonment for a term not exceeding 25 years. They also agree that it is trite law that in this jurisdiction that the maximum penalty for any offence should be reserved for the worst possible case encountered in practice as pronounced in Goli Golu v State [1979] PNGLR 653. Hence, considering the facts and circumstances of this case, it is agreed mutually that this is not the worst type case as to warrant the imposition of the maximum penalty of 25 years imprisonment.

15. Both counsels referred to Stanley Sabiu v State (2007) SC866 where the accused was charged on one count of contravening section 229A(1)(2)(3) and sentenced to 17 years in hard labor for a guilty plea. This was an appeal against a sentence of 17 years imposed on an offender after pleading guilty to one count of sexually penetrating his 6 year old nephew after dragging him into some bushes and forcefully had anal sex with him causing him to suffer bruising, bleeding and some pain. The appellant had paid some compensation, expressed remorse, and restored the relationship with the victim of the family by the time of the sentence. The Supreme Court dismissed the appeal and confirmed the sentence of 17 years to be appropriate.

16. Some of the comparable cases referred by counsels with facts similar to this case are:

(a) In State v. Eddie Trosty (20.5.04) N2681, the prisoner pleaded guilty to sexually penetrating a 15-year-old victim. There was consensual sex and the prisoner pleaded guilty. He was sentenced to 6 years imprisonment.

(b) In State v Lesson David (25.7.06) CR. No. 561 of 2005, the prisoner pleaded guilty to sexually penetrating a 10-year victim at a creek. He was sentenced to 9 years imprisonment.

(c) In State v Paul Wakara (19 Sept. 2006) CR. No.914 of 2006, the prisoner pleaded guilty to sexually penetrating a 10-year-old girl. He was sentenced to 10 years.

(d) In State v Chadrol (2011) N4648, the prisoner pleaded guilty to one count of sexual penetration. The complainant was 13 years old and his girlfriend. The sexual penetration was consensual. The prisoner was 17 years old at that time and he was sentenced to 6 years in hard labor but it was wholly suspended with conditions.

17. Both counsels also agree that the Court may also even consider ordering compensation under section 2 of the Criminal Law (Compensation) Act 1991 and the maximum compensation amount must not be more than K5,000.00. (see S.5(3)). This is discretionary on the Court to consider whether an order for compensation is to be made depending on the circumstances of the case. However, compensation must be ordered only if the victim is willing to accept it and if the case warrants it as to restore peace and harmony in the community.

Consideration

18. The victim was about 15 years old at the time the offence was committed. In the pre-sentence report, she says she was in relationship with the accused, and she gave her consent to having sexual intercourse with him. However, consent is not a defence, and he has pleaded guilty to the charge and acknowledged that he offended an underaged girl.

19. Further, in the pre-sentence report, the victim says she does not want the accused to be sent to jail and requested for the Court to have mercy on him and impose a lenient sentence. She also wants him to pay compensation of K3000. She is now about 20 years old and at the moment, she also does not have any plans to pursue a marriage relationship with the accused.

20. Having considered submissions by counsels to the circumstances of this case, I will impose a sentence of 8 years.

21. The accused was initially arrested on 11 December 2017. He was granted bail on 26/10/18 after spending 10 months, 2 weeks and 1 day in remand. For reasons unknown, he was rearrested on 20 May 2019 and has now been in custody for 2 years and 5 months, which period will be deducted from his sentence. From the pre-sentence report, I am satisfied that he is eligible to some suspended sentence as he has asked for the Court’s mercy and intends to pay compensation. However, I am not prepared to suspend all of his sentence as I am of the view that the first 4 years of his sentence should be served in remand to deter him and others from committing this and other offences in the future. The remaining 4 years of his sentence will be suspended on the following conditions:

(a) that he pays the sum of K4,000 in cash and a pig worth K500 and K200 worth of food within 6 months of his release from custody to be witnessed by the Ward Member, local Priest and the Probation Officer in Kokopo.

(b) he shall not change his residential address at Warakidam Block, Inland Baining, Gazelle District, East New Britain Province.

(c) he shall not leave East New Britain Province without leave of this Court during the period of suspension.

(d) he shall perform 5 hours of community work each week work at Warakidam Block, Inland Baining, Gazelle District, East New Britain Province during the period of his suspended sentence to be supervised by his local ward member.

(e) he shall attend the local church of his choice every Sunday for service and worship and submit to counselling.

(f) he shall not commit another or similar offence.

(g) he shall not consume alcohol or drugs.

(h) if he breaches any one or more of the above conditions, he shall be brought before the National Court to show cause as to why he should not be detained in custody to serve the rest of the sentence.

Orders

22. The Orders of the Court are:

(i) He is sentenced to 8 years imprisonment.

(ii) His pre-sentence period of 2 years and 5 months is deducted.

(iii) He will spend another 1 year and 7 months in custody at Kerevat.

(iv) The balance of his sentence of 4 years is suspended subject to compliance with conditions.
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Public Prosecutor: Lawyers for State
Public Solicitor: Lawyers for Prisoner