N9392
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 851 OF 2019

THE STATE

V

KELLY JOE (No. 4)

Waigani: Ganaii, AJ
2021: 02nd December

CRIMINAL LAW –  Sentence – Three Counts of Sexual Penetration of a Child under the Age of 16 years – Sentencing Principles considered – Aggravations outweigh Mitigations- Pre Sentence Report does not contain Victim’s View – Offender’s good character in prison is tainted by his denial of the charge and readily made admission in PSR – Strong Punitive and Retributive punishment is called for to denounce acts violating Right to privacy and Dignity of Human Beings – Protection of Children who are Vulnerable Members of Society – 15 years imprisonment – Time in Custody deducted – No suspension 

Cases Cited

Aieni v Tahain [1978] PNGLR 37 
Goli Golu v State [1979] PNGLR 653
James Mora Moera v The State [1996] PNGLR 280
Public Prosecutor v Tardew [1986] PNGLR 91
State v Benson Samson (2005) N2799
Sate v Bonnie [2018] PGNC 206; N7301 
State v Edmund Hotsia (2008) N3868
State v Gurang, (No 2) [2021] PGNC 380; N9137 
State v Jonathan [2008] PGNC 31; N3315 
State v Kenneth Penias [1994] PNGLR 48
State v Kiaro [2020] PGNC 277; N8610 
State v Kulami (No.2) [2009] PGNC 261; N4473 
State v Lumou [2004] PGNC 107; N2684 
State v Makele [2007] PGNC 257; N5031 
State v Patrick (2020) N8253
State v Sabiu [2007] PGSC 24, SC866
Law Cited	

Criminal Code, Chapter 262, Section 229A (1)

Counsel

Ms Mercy Tamate, for the State
Mr David Kayok, for the Accused
 
RULING ON SENTENCE
 
02nd December, 2021

1.	GANAII, AJ:  This is the sentence for the offender Kelly Joe who has been convicted after trial on three counts of Sexual Penetration of a child under the age of 16 years, pursuant to section 229A (1) of the Criminal Code.

2. 	The relevant facts are that the offender is known to the victim and her family. They live in the same community at Bush Wara Settlement, Nine Mile, NCD. The offender was 47 years old and the victim was 14 years old at the time of the commission of the offence. On the 15th December 2018 at around 10:00 pm, the offender approached the victim’s family. The victim, her brother and their father were together when the offender told them that he was selling electronic devices, namely tablets. According to the offender, the devices were at his house. The father of the victim gave some money to him and allowed the victim and her younger brother to follow the offender to get the devices. On their way, the offender told the victim’s younger brother to wait around and he and the victim would go ahead and get the devices. As he and the victim continued on, he led her away to secluded spots, threatened her and forced her to remove her clothes. He then sexually penetrated her through the vagina, anus and mouth. 

Antecedents and Allocutus

3.	The offender has no prior convictions. He was given an opportunity to say what matters the court should take into account when considering a punishment (Aieni v Tahain [1978] PNGLR 37 (applied). He said:

“I say sorry for what I have done in the eyes of the Court. I say   sorry to the National Court whom I stand before. I say sorry to the victim with my heart and mind. I say sorry to the lawyers and my family members who are present in this courtroom to witness my case. I promise to the court from my heart that in future I will not reoffend. I ask the court to have mercy on me”. 

Pre-Sentence Report

4.	The offender is 50 years old and hails from Spagel village, Kamtai District, Chimbu Province. He has no formal education, is illiterate and communicates only in tok pisin (Pidgin language). He has been residing with his stepsister Margaret and her husband at Nine Mile, Bush Wara Settlement, NCD, since coming to Port Moresby from his village.
Employment, Financial and Health Status

5.      The offender was formally employed in 2014 as a Security Guard with Kuima Security Services in the Eastern Highlands Province. Prior to the commission of this offence, he was unemployed. He is involved in the informal sector and small business. He assists his sister with her poultry (chicken arming). The offender says he suffers from swollen glands and severe back aches however, there are no medical reports to substantiate these claims. He does not consume alcohol or take drugs. 
Family and Marital Status

6.	The offender’s parents died a long time ago. Both parents are from Kamtai District and have raised seven children, five males and two females. He is the eldest. The offender is married with three children and his family live in the village. His eldest daughter is married with two children and he is a grandfather. 
Future Plans

7.	The offender is concerned about his children in the village and says if allowed to, he will continue informal marketing to support his children. The offender is a follower of Seventh Day Adventist Faith and regularly attends worship in prison. 

Community Sources

8.	The father of the victim says the offender is well known to them as a family friend. They are close neighbours. The offender has spent three years in remand awaiting trial and the victim’s father says this is sufficient punishment for him. The family has forgiven him and are happy to reconcile with him. The father of the victim says the victim is now married with a child and she also has forgiven the offender. She wants to move on in life and agrees with her father’s decision. 

9.	The offender is of old age and has health issues. The father of the victim says it may not be good for him to be in prison. He has asked the court to make orders for compensation and reconciliation. An uncle of the victim also shared the same sentiments as her father. 

 Prior Records and Character Reference

10.	The offender has no prior records. Regarding his character, the Prison Chaplain, Greg Teine says the offender is an active member in the church programs in prison. He was baptised on the 29th June 2019 after incarceration. He is a humbled and matured person and can be rehabilitated and reintegrated easily back into the community. 
Submissions by Defence Counsel

11.	Mr. Kayok of learned counsel for the offender cited appropriate case precedents of Goli Golu v State [1979] PNGLR 653 and The State v Edmund Hotsia (2008) N3868. He submitted that the maximum penalty is reserved for the worst case and that the court can follow an established guideline in arriving at an appropriate penalty.

Comparable cases

12.	In citing these cases: State v Frank Makele [2007] PGNC 257; N5031, State v Gurang (No 2) [2021] PGNC 380; N9137, State v Patrick (2020) N8253 and State v Lumou [2004] PGNC 107; N2684, Mr Kayok submitted that in most of them, taking into account the circumstances of each case, the courts have imposed between 18-20 years imprisonment in trials and where there was serious breach of trust, a huge age difference, where weapons were used, and the victims contracted STIs or were impregnated. Mr Kayok also submitted that the maximum penalty is reserved for the worst case and that an appropriate starting point would be 15  years. Considering there were no STIs contracted, no weapons used and no pregnancy, a sentence of 12 years is appropriate. 
	
13.	Counsel cited the case of Public Prosecutor v Tardew [1986] PNGLR 91, where the Supreme Court stated that a suspension may be appropriate to promote personal deterrence and rehabilitation and encourage reconciliation especially where imprisonment will have an excessive degree of suffering for the offender due to age or bad physical or mental health. Based on the circumstance of the case, where the victim’s family is happy to participate in compensation and reconciliation, Defence submits that the court impose a part suspension to the head sentence and make appropriate orders for compensation and reconciliation.

14.	The offender had been in custody since the 16th December 2018, and has spent a period of two years and 11 months in pre-trial custody. The court will deduct that from the head sentence. 

Submissions by the State 

15.	State submitted that the following aggravations are present: serious and prevalent offence; element of deceit to facilitate the offence where the victim was lured; large age gap of 30 years; physical violence and injuries sustained on the genitalia, victim was forced to re-live the trauma through the trial (principle of secondary victimisation); the offence occurred at night and away from home and there were more than one occasion of penal penetration. In mitigation, which is outweighed by the aggravations, Mr Kelly Joe is a first-time offender. There are no extenuating circumstances present in the case. A strong custodial sentence is appropriate. 

Comparable cases

16.	Ms Tamate, learned State prosecutor cited the cases of State v Kulami (No.2) [2009] PGNC 261; N4473, State v Jonathan [2008] PGNC 31; N3315, State v Bonnie [2018] PGNC 206; N7301, and State v Allen Ken and submitted that the starting point is 15-17 years. The PSR is favourable to the offender where the victim’s family is willing to reconcile. A punitive sentence between 15 – 17 is appropriate for each of the three counts to be served concurrently. 

Application 

17.	The maximum penalty is reserved for the worse case. This is not a worst case. The court is mindful of its Section 19 of the Criminal Code discretion where the courts can impose lesser penalty than the maximum. The principle in the case of Goli Golu v The State [1979] PNGLR 653 is applied.

18.	The punishment should be in proportion to the seriousness of the offence. Where society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction should not be too severe or too lenient. State v Kiaro [2020] PGNC 277; N8610, Narokobi, J, applied. 
Relevant Consideration

19.	In State v Hotsia Geria [2008] PGNC 295; N3868, Kandakasi, J posed the following questions which are pertinent to determining an appropriate penalty: what the relevant facts pertinent to the case are; what the relevant sentencing trends applied by the courts are; what the aggravating and mitigating factors are and what the appropriate head sentence should be and should any or part of it be suspended.
Sentencing Trend
 
20.	I am grateful for those cases cited to court by both counsels and consider them as relevant and appropriate in guiding the court towards an appropriate head sentence and whether suspension should be considered. 
Mitigating Factors

21.	The only two normal mitigating factors present in this case are that the prisoner is a first-time offender and he has expressed remorse. On the circumstances of the offence, apart from physical injuries done to the victim; and in consideration of the caselaw principles, the other mitigations are: the victim did not contract a sexually transmitted disease or fall pregnant, and the offender was unarmed.

Aggravating factors

22.	The law in sentencing requires the balancing act of assessing the mitigating factors against those in aggravation. The aggravations are: the offence is prevalent; the victim sustained physical injuries on the genitalia; there is a huge age difference of 30 years; the victim is a young teenager; threats were issued; the offender lured the victim to him and then committed the offence; there is a serious breach of trust where the trust held by the victim’s father and other family members, and the victim herself towards  someone known to them in community was betrayed.

23. 	In James Mora Moera v The State [1996] PNGLR 280, the Supreme Court said that a breach of trust is a serious aggravating factor and in consideration of an appropriate penalty, this factor alone makes the offence serious thus attracting a severe penalty. 

24.   Whilst the victim’s father was interviewed, the victim’s views were not obtained. The views of the father or the uncle of the victim are not the victim’s view. There is no explanation why she was not interviewed. It is good for her that she is now married, has a family and has moved on in life, but out of fairness, her views must be obtained either through the PSR or a Victim Impact State (VIS) which would be appropriate to assist the court in understanding the impact of the crime on her. 

25.	I note that the family, mainly the father of the victim and her uncle say they have forgiven the offender, and considering the offender’s age and health, they say that three years awaiting his trial and sentence is enough punishment for him. They were happy to reconcile with him over some payment of monetary compensation. Whilst they may be their views, this court is not obliged to follow that. I am mindful that the offender did lure the victim and her family with tablet devices, and in the PSR, the offender admitted to using money to ‘assist her with her financial needs’. The family of the victim therefore may be driven by that factor, that is, their need for money when asking for compensation. 

26.	I am mindful that there is no medical report to substantiate the offender’s claims in the PSR that he suffers from certain medical conditions. Further, I am not prepared to accept without further proof in the PSR that the age of the offender is now 67 years. The court will go by the age that was relied on during trial and in the offender’s antecedent report which makes him now to be 50 years old and not 67 years.

27.	In relation to the victim’s father’s and uncle’s views on compensation, reconciliation and suspension of sentence, I must say this. Parents and extended relatives, and as in this case, male relatives of child victims should not easily come to court to settle for monetary compensation because they feel sorry for the offender. Whilst that may be the view held by certain family members of the victim, the court must balance those views against the view that the society, the community, other young women and girls at Nine Mile, Bush Wara Settlement and around the country must be always protected in their communities. Any act that violates their right to privacy, and their dignity as human beings must be denounced in the strongest terms by the imposition of a punitive and retributive punishment. 

28.	For the prisoner, his good character in the report given by the Prison Chaplain is tainted because he had not told the truth at trial even after his baptism and conversion to follow Christ as a Seventh Day Adventist Church believer. He had lied about his involvement during his pleading and trial, which has caused the State resources to run the trial and which has caused the victim the trauma of re-living a daunting experience. After having found the offender guilty, he had then freely admitted to the offence when interviewed by the Probation Officer, saying that he would often give money and other things to the victim when she needed them. He said for this case, they had consensual sex. Against the offender, I say he would have made it easier for himself if he pleaded guilty and would have saved the victim from experiencing secondary victimisation. This factor goes against his good character report as a converted Christian.

Law

29.	The prescribed sentence under sections 229A (1) the Criminal Code is a term of imprisonment not exceeding 25 years. The maximum penalty is reserved for the worst case. This is not a worst case considering the absence of the other aggravations as outlined in State v Kulami (supra). 
Case law on starting point

30.	In the case of State v Sabiu [2007] PGSC 24, SC866 and State v Benson Samson (2005) N2799, the courts stated that where an offence of this kind is committed against a child at or under the age of 13 years, a sentence of 15 years is an appropriate starting point. Other cases cited by counsels imposed sentences between 15 – 17 years. 
Head Sentences

31.	There is no question that the prisoner must serve terms of imprisonment for each of the three counts calculated to sufficiently serve both as deterrent and retributive aspects of punishment and one that gives due consideration to the right to privacy, respect to freedom and dignity of a person, and due consideration for the protection of children who are vulnerable members of society. The severity of the punishment must be proportionate to the seriousness of the crime.

32.	I consider the mitigating factors, but they are outweighed by the aggravation. In Kenneth Penias [1994] PNGLR 48, the court said the maximum penalty or closer to the maximum penalty may be imposed in cases where the aggravations outweigh the mitigations. 

33.	Although, no weapons were used, the offer to sell a tablet was made to lure the victim, her brother and even their father. Like the father said, being neighbours he didn’t think the offender would do this to his daughter. The courts must give equal weight to considering the use of ‘goodies’ or affection lure to ‘use of a weapon’ as serious aggravations because the end result is the same, which is that the offender achieves his intent of taking the victim away to secluded spots and then abusing them. Under those two different scenarios, the victim experiences different emotions. Where weapons are used, they feel threatened, afraid, alone, and that it may be a matter of life and death for them. Whilst in situations where ‘affection lure’ is used to take the victims away from the safety of their trusted persons, they experience through trickery and betrayal, fake love, fake care and attention and fake affection. The element of luring must be regarded as a serious aggravating factor. For this and the other considerations, a strong punitive sentence must be imposed. 
 
34.	In light of all of the above, a sentence of 15 years is appropriate for each of the three counts of Sexual Penetration against a Child. The sentences are to be served concurrently as the charges arose from the same set of facts. Time in custody is deducted from the head sentence. I do not consider any suspension as appropriate in the circumstance. 

Order

35.	The following final orders on sentence are made: 
1.	Prisoner is sentenced to 15 years imprisonment in hard labour for each of the three counts of Sexual Penetration of a child contrary to section 229A (1) of the Criminal Code. 

2.	The 15 years imposed on each of the three counts is to be served concurrently. 

3.	Two years and 11 months is deducted as pre-trial custody period.

4.	Prisoner to serve a balance of 12 years and 1 month imprisonment in hard labour. 

Orders accordingly. 
________________________________________________________________
Public Prosecutor: 	Lawyer for the State              
Public Solicitor: Lawyer for the Accused