State v Rosi [2022] PGNC 324; N9840 (19 August 2022)

N9840

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 466 OF 2022

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
CONLEY ROSI
Prisoner

Buka: David, J
2022: 11^th, 16^th & 19^th August

CRIMINAL LAW – sentencing – engaging in act of sexual penetration with a child under the age of 16 years – guilty plea – complainant, a 14-year-old girl – Criminal Code, Section 229A(1).

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Lawrence Simbe v The State [1994] PNGLR 38
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 Biason Benson Samson (2005) N2799
The State v Thomas Angup (2005) N2830
The State v Ndrakum Pu–Uh (2005) N2949
Saperus Yalibakut v The State (2006) SC890
The State v Paul Wakara, CR 914 of 2006, Unnumbered & Unreported Judgment of Lenalia, J dated 19 September 2006
Stanley Sabiu v The State (2007) SC866
The State v Frank Kui Makele (2007) N5031
The State v Francis Guandi Borie (2007) N5489
The State v Chris Nawa (No 2) (2009) N3732
The State v Jessie Chadrol (2011) N4648
The State v Emmanuel Koi, CR No.1204 of 2013, Unnumbered & Unreported Judgment of David, J delivered at Mt. Hagen on 15 September 2015

Counsel:

Mercy Tamate, for the State
Fidelis Lugabai, for the Offender

SENTENCE

19^th August, 2022

1. DAVID, J: INTRODUCTION: This is the sentence of the Court with respect to the prisoner, Conley Rosi (the Offender) who was convicted following him entering a plea of guilty to one count of engaging in an act of sexual penetration of a child under the age of sixteen years namely, Grace Talits Augustine (the Complainant), then aged 14 years by inserting his penis into her vagina on 28 February 2021 at Gohi village, Buka, Autonomous Region of Bougainville in Papua New Guinea contrary to Section 229A(1) of the Criminal Code.
   
2. It is trite that when sentencing an offender who has pleaded guilty, the judge must apply the facts presented to the Court for purposes of arraignment on the basis of which the offender has pleaded: Saperus Yalibakut v The State (2006) SC890.
   
3. In deciding an appropriate sentence where an offender has pleaded guilty, the Court is required to give the benefit of the doubt on matters of mitigation raised in the depositions, the allocutus or during submissions on sentence by the defence counsel that are not contested by the prosecutor: Saperus Yalibakut v The State (2006) SC890
   

BRIEF ALLEGATIONS PRESENTED

4. The Offender is known to the Complainant as they both come from Hanpan village in the Haku Constituency of Buka District, Autonomous Region of Bougainville and they both live there. On Sunday,28 February 2021 at around 04:00 am, the Complainant was fast asleep at her family home when the offender went and attempted to wake her up by pushing a stick through the walls of the house and poking her on her back. She felt pain in her back and this made her to get up from sleep. She opened the door to see who was outside when the Offender suddenly grabbed her by her hand and pulled her away to his house. The Offender tried to call out to her mother, but the Offender covered her mouth with his hand. The Offender carried the Complainant up into his house and made her to lie on the mattress where he then removed her clothes and sexually penetrated her by inserting his penis into her vagina. The Complainant became afraid and started to cry and say that she would report him to her mother, but the Offender threatened her. The Complainant also felt pain in her vagina when the Offender was sexually penetrating her. The Offender was interrupted when he heard the Complainant’s uncle calling out her name in search of her. The Offender stopped penetrating the Complainant and when he removed his penis, there was some bleeding from the Complainant’s vagina. He then told the Complainant to wear her clothes and leave.
   

PRE-SENTENCE REPORT

5. Following a request from the offender, I directed the Probation Service here in Buka to compile and file a pre-sentence report with respect to him and deferred the hearing of submissions on sentence pending the filing of the report. The report was filed and I commend Mr. Martin Tisivua, Juvenile Justice Officer, for that. I have considered the report. Five people were interviewed and these are Serah Kehali (the Offender’s sister), Clare Alenk (the Complainant’s mother), Anna Sapur (Volunteer Probation Officer), the Complainant and the offender. The pre-sentence report acknowledges that the Offender has committed a serious offence that attracts a very significant penalty, but does not recommend against the offender being subjected to probation supervision on terms. It reports that the Complainant’s family demanded compensation of K3,000.00 and customary reconciliation between the opposing families to restore peace and harmony between them and a reconciliation ceremony took place on 3 October 2021 when K2,000.000 was paid and food to the value of K800.00 was shared. If a suspended sentence were imposed, the Complainant’s mother has suggested and with which the Probation Service concurs that the payment of the balance of the compensation payment demanded of K1,000.00 be paid within six months of release from custody. The report suggests however that I should impose a sentence which I consider appropriate in the circumstances of the present case.
   

PENALTY

6. The Offender has been convicted under Section 229A(1) of the Criminal Code. That provision creates the offence as well as prescribing the penalty. The maximum penalty for a conviction under Section 229A(1) is subject to sub-sections (2) and (3), imprisonment for a term not exceeding 25 years. If the child is under the age of 12 years or there is an existing relationship of trust between the offender and victim, the maximum penalty for the offence is imprisonment for life. The general sentencing discretion of the Court under Section 19 of the Criminal Code still applies in all situations covered under Section 229A.
   
7. I set out the provision below:-
   

“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 Subsections (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.”

8. The Offender did not commit the offence under any circumstance of aggravation therefore he is liable to imprisonment for a term not exceeding 25 years under Section 229A(1) of the Criminal Code.
   
9. The maximum sentence is reserved for the worst cases of a particular offence and that each case must be decided on its own facts and circumstances as highlighted in Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105; Lawrence Simbe v The State [1994] PNGLR 38.
   

ANTECEDENTS

10. The Offender has no prior convictions.
    

PERSONAL PARTICULARS

11. The Offender is 24 years old now. He is from Tanreki Hamlet, Hanpan, Haku Constituency in the Buka District of the Autonomous Region of Bougainville and resides there. His parents are alive. They produced ten children consisting of six females and four males and he is the last born. He is married to a woman from Hahalis village, Buka and they have a child from the marriage. He completed Grade 10 at the Haku Day High School and went on to complete Grade 12 at the Hutjena Secondary School. He then enrolled at the Badili Vocational Community College in Port Moresby where he did an electrical course. Upon completion of the electrical course, he was employed by an electrical company called NEOS in Port Moresby from 2018 to 2019. He left his employment in 2020 and returned home to Bougainville. He is now unemployed. He is a member of the Seventh-Day Adventist Church. He was arrested and detained on 26 March 2021. He was admitted to bail on or about 21 April 2021. He was in custody for about 26 days.
    

ALLOCUTUS

12. The Offender said sorry to the Complainant, the Court and God for breaking the law and asked for mercy. He said he was a first-time offender and asked for a suspended sentence via a probation order. He also said that compensation totalling K2,800.00 was paid to the Complainant’s family back in the village.
    

SUBMISSIONS BY THE STATE

13. Ms. Tamate submitted that this was a serious case because the aggravating factors outweighed the mitigating factors. The sentence should be at least between seven and twelve years. She had no objection to the suggestion of a suspended sentence which could be made on terms proposed by the Probation Service which were reasonable.
    

SUBMISSIONS BY DEFENCE

14. Mr. Lugabai submitted that this was not a worse case to attract the maximum penalty. He highlighted that the Offender made an early guilty plea, he was a first-time offender, he has no prior convictions, he has cooperated with the police by his early admission, he was young offender, this was an isolated incident, the degree of violence used against the Complainant was minimal, the Complainant suffered no real physical injury, the Complainant did not acquire any sexually transmitted disease, he was the sole offender, and he paid compensation to the Complainant’s family of K2,000.00 and he was willing to pay the balance of the compensation demanded of K1,000.00 and reconcile with the victim and her family and he has expressed genuine remorse. A total sentence of no more than eight years imprisonment, fully suspended, would be sufficient.
    

REASONS FOR DECISION

Considerations for sentencing

15. In The State v Biason Benson Samson (2005) N2799, Cannings, J considered a number of National Court decisions when proposing a number of considerations which I will set out shortly to be taken into account when deciding an appropriate sentence for this offence and these are: 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. These considerations were adopted by Lay, J in The State v Ndrakum Pu–Uh (2005) N2949 and have since been endorsed by the Supreme Court in Stanley Sabiu v The State (2007) SC866. These considerations 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, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising 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?
        
16. In Stanley Sabiu v The State (2007) SC866 at [12], the Supreme Court said:

“We are of the view that the above are useful guidelines to be considered in sentencing for child sexual penetration cases. We emphasise however that it is for the trial judge to determine the sentence to be imposed after having regard to all of the circumstances of the particular case before him.”

17. I will adopt the considerations alluded to above and apply them to the peculiar facts and circumstances of this case.
    

Application of relevant considerations

18. I now apply the relevant considerations to the present case.
    
    1. Is there only a small age difference between the offender and the victim?
       

No, there was an age difference of 9 years. At the time of the offending, the Complainant was about 14 years old and the Offender was about 23 years old.

2. Is the victim not far under the age of 16 years?
   

Yes.

3. Was there consent?
   

No.

4. Was there only one offender?
   

Yes. The Offender acted alone.

5. Did the offender not use a threatening weapon and not use aggravated physical violence?
   

There was none.

6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?
   

There is no evidence of physical injury. There was also no evidence that a sexually transmitted disease was passed on. There was some bleeding from the Complainant’s vagina.

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?
   

None.

8. Was it an isolated incident?
   

Yes.

9. Did the offender give himself up after the incident?
   

Yes. He was arrested on 26 March 2021.

10. Did the offender cooperate with the police in their investigations?
    

Yes.

11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?
    

Yes. The Complainant’s family demanded compensation of K3,000.00 and reconciliation ceremony. The Offender’s family paid K2,000.00 and reconciliation ceremony was done where food worth K800.00 was shared. The balance of K1,000.00 of the compensation demanded remains to be paid.

12. Has the offender not caused further trouble to the victim or the victim’s family since the incident?
    

Yes. He has not caused further trouble.

13. Has the offender pleaded guilty?
    

Yes.

14. Has the offender genuinely expressed remorse?
    

Yes. He has expressed genuine remorse and contrition.

15. Is this his first offence?
    

Yes.

16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
    

No. He is an educated adult and sophisticated villager who should know what is right from wrong.

17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
    

No.

19. Contrary to the prosecution submission, clearly, the factors in favour of the Offender outweigh those against him.
    

Starting point

20. In Stanley Sabiu v The State (2007) SC866 at [10], the Supreme Court said that in cases where the victim was under the age of 12 years, the starting point was 15 years imprisonment. That determination was made after the Supreme Court noted that in The State v Biason Benson Samson (2005) N2799, a case involving a 13-year old victim where sentence was considered under s.229A(1), Cannings, J determined that the starting point was 15 years imprisonment. The Supreme Court went on to observe that a sentence could be more or less than the starting point where the peculiar circumstances of a case and circumstances of aggravation and mitigation warranted.
    
21. In The State v Jessie Chadrol (2011) N4648, His Honour Batari, J suggested some guidelines for sexual penetration cases namely, a sentencing range from 3 years to the lower end of 15 years; 15 years for the upper end; and a case in the near worst category should attract a sentence between 15 to 25 years.
    

Comparable sentences

22. I have considered the following comparable sentences.
    
23. In The State v Thomas Angup (2005) N2830, the offender was convicted on guilty pleas to four counts from sexual touching of a child under 12 years to sexual penetration of a child under 16 years and 12 years. The charges were laid under ss.229B, 229A(1) and (2) of the Criminal Code respectively. These offences were committed in breach of an existing relationship of trust in that the complainant was the offender’s step daughter, he having been married to her mother. The charges arose out of a pattern of sexual abuse over a period of 6 years. The complainant became pregnant and bore a son before attaining the age of 16 years. Her schooling was terminated. The offender was aged about 34 years and the age difference between the complainant and the offender was 19 years. For the count of sexual penetration of a child under the age of 12 years, a sentence of 20 years imprisonment was imposed. Lay, J after applying the totality principle, imposed an aggregate sentence of 20 years imprisonment in hard labour.
    
24. In Saperus Yalibakut v The State (2006) SC890, the appellant pleaded guilty to engaging in an act of sexual penetration with a child under the age of 16 years contrary to s.229A of the Criminal Code. The child was an 11-years old girl and the offender was aged about 40 years. The appellant was convicted and sentenced to 17 years imprisonment. He appealed against both conviction and sentence. The appeal against conviction was dismissed, but the appeal against sentence of 17 years was upheld and substituted with a sentence of 14 years imprisonment.
    
25. In Stanley Sabiu v The State (2007) SC866, a sentence of 17 years was imposed by the National Court for one count of sexual penetration of a male child through his anus then aged 6 years pursuant to s.229A(1)(2) of the Criminal Code on a guilty plea by a first offender as factors in aggravation far outweighed those in mitigation. The child bled from his anus. The offender paid K500.00 compensation and expressed remorse which were also taken into account in mitigation. Factors taken as aggravating there were; there was a substantial age difference; the offender was the natural maternal uncle of the child being the son of the offender’s sister therefore a breach of trust reposed on him; physical and psychological pain and suffering was caused to the child; the offence was against the order of nature as well; and the offence was committed against an innocent child. The offender’s appeal against sentence was dismissed.
    
26. In The State v Francis Guandi Borie (2007) N5489, the offender pleaded guilty to one count of engaging in an act of sexual penetration with a child under the age of 16 years who at the time of the offence was aged 11 years. The offender was aged about 35 years. The offender asked the complainant to go with him to some nearby bushes where he took off her clothes, made her lie on the ground and then sexually penetrated her by inserting his penis into her vagina. After doing that, he gave her 20 toea. Factors taken as mitigating there were; no weapon or aggravated violence was used; no physical injury was caused or sexually transmitted disease was passed on to the complainant; there was no relationship of trust; it was an isolated incident; the offender cooperated with the police; the offender did not cause further trouble; the offender pleaded guilty; the offender expressed remorse; and the offender was a first offender. Factors taken as aggravating there were; there was a large age gap; tender age of the complainant; there was no consent; there was penile penetration; the offender did not give himself up; and there was no reconciliation. A sentence of 10 years was imposed.
    
27. In The State v Emmanuel Koi, CR No.1204 of 2013, Unnumbered & Unreported Judgment of David, J delivered at Mt. Hagen on 15 September 2015, the offender pleaded guilty to one count of engaging in an act of sexual penetration in circumstances of aggravation with a child under the age of 16 years who was then under the age of 12 years, a 10-year old girl through her vagina with his penis. The complainant was walking home alone after visiting her sick father at a lodge at Newtown, Mt. Hagen when the offender followed her. At a secluded place, the offender grabbed the complainant and physically assaulted her. He tied her legs and hands and dragged her into the nearby bush and into a raun haus where he committed the offence. The complainant was confined for a night and managed to escape the next morning. The complainant suffered physical injuries including, facial injuries that resulted in swelling, abrasions over the back, a torn hymen and tear to the labia. A sentence of 17 years imprisonment in hard labour less the pre-sentence custody period was imposed and none of the remaining term was suspended.
    
28. In The State v Frank Kui Makele (2007) N5031, the offender was convicted after a trial of engaging in an act of sexual penetration with a child aged 13 years. The complainant was on her way back to her house after going to the toilet in the bush when she bumped into the offender. He offered betel nut to the complainant and when she went over to him to get some betel nut, he grabbed her hand and forced her to the ground. She tried to call out when he was holding her, but he closed her mouth. He took her trousers off and sexually penetrated her vagina with his penis. She felt a lot of pain. She had never had sex before. A sentence of 10 years was imposed.
    
29. In The State v Chris Nawa (No 2) (2009) N3732, conviction for engaging in an act of sexual penetration of a child was attained after a trial. The offender was a teacher and the Headmaster of a school where the complainant was his pupil. The offender forced the complainant into the bush and made her to lie down on the ground. He then knelt down and began pushing his fingers in an out of the complainant’s vagina in order to enlarge the orifice. He subsequently penetrated the complainant’s vagina with his penis after three attempts. When he was about to reach orgasm, he withdrew his penis and ejaculated on the ground. At the time of the offending, the complainant was 14 years old while the prisoner was 40 years old. A sentence of 8 years was imposed.
    
30. In The State v Paul Wakara, CR 914 of 2006, Unnumbered & Unreported Judgment of Lenalia, J dated 19 September 2006, the offender forced the complainant who was aged 10 years old to have sex with him. The complainant did not sustain substantial physical injuries except for the torn hymen. A sentence of 10 years was imposed.
    

SENTENCE

31. I do not think the present case warrants the imposition of the maximum penalty prescribed because the offender has made out a case for the imposition of a lesser sentence. I generally concur with the defence submissions. A sentence below the starting point of 15 years suggested in The State v Biason Benson Samson (2005) N2799 and Stanley Sabiu v The State (2007) SC866 would be appropriate. Both counsel have submitted that a sentence below the starting point would be appropriate.
    
32. Having considered all the factors for and against the Offender, the seriousness of the offence demonstrated by the prescribed maximum penalty and the need for the Court to impose a personal and general deterrent sentence due to the prevalence of the offence and to reflect the abhorrence of society, the comparable sentences demonstrating the sentencing trend, I think a sentence of 8 years imprisonment in hard labour is appropriate in the circumstances of the present case.
    
33. The time the Offender has already spent in custody of 26 days will be deducted from the term of imprisonment pursuant to s.3(2) of the Criminal Justice (Sentences) Act 1986 leaving a period of 7 years, 11 months and 4 days (the remaining term) to serve.
    
34. I will suspend four years of the remaining term on terms which I set out below and the Offender shall be incarcerated to serve the balance of 3 years, 11 months and 4 days. The following conditions will apply on the suspended sentence:
    
    1. The Offender shall perform 1000 hours of community work at an institution of the State or the Autonomous Region of Bougainville to be nominated and supervised by officers of the Probation Service, Buka.
       
    2. The Offender shall enter into his own recognizance without any surety to keep the peace and be of good behaviour during the period of suspension.
       
    3. The Offender shall pay to the Complainant the balance compensation of K1000.00 prior to his release from custody.
       
    4. The Offender shall completely refrain from consumption of any alcoholic or intoxicating substance including illicit drugs during the period of suspension.
       
    5. The Offender shall attend church services every Sabbath at his local congregation and actively participate in all his congregation’s organized activities.
       
    6. The Offender shall reside at Tanreki Hamlet, Hanpan, Haku Constituency in Buka during the period of suspension.
       
    7. The Offender shall not leave the Autonomous Region of Bougainville without the permission of the Court during the period of suspension.
       
35. Any breach of these conditions will result in the Offender’s immediate arrest and incarceration.
    
36. Incarceration will be at the Beikut Correctional Institution.
    
37. A warrant shall issue forthwith to give effect to this sentence.
    
38. Bail monies be refunded to the Offender forthwith.
    

Sentenced accordingly.

_____________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner