N10375

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 240 OF 2019

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:
MAX KOPEN
-Prisoner-

Waigani: Tamade AJ
2023: 16th June; 3rd July

CRIMINAL LAW –sentencing- sexual penetration of a child – section 229A(1) of the Criminal Code- child was 13 years old- early guilty plea- prisoner’s  remorse was  feigned- first time offender- prisoner admitted to sexually penetrating the victim on eight occasions- principles and comparative cases considered- sentenced to 15 years

Cases Cited:

State v Mokei (No 2) [2004] PGNC 129; N2635
State v Soni [2008] PGNC 237; N3694
State v Tugumar [2013] PGNC 219; N5377 
Sabiu v State [2007] PGSC 24; SC866
Goli Golu v The State [1979] PGSC 9; [1979] PNGLR 653 

Legislation:

Criminal Code Act

Counsel:	

Mr Dale Digori, for State
Mr Malcolm B. Sumbuk, for the Prisoner 

30 June 2023

1.	 TAMADE AJ: The Prisoner has pleaded guilty to one count of sexual penetration of a child then aged 13 years old by inserting her penis into her vagina contrary to section 229(A)(1) of the Criminal Code.

2.	The offence of sexual penetration of a child under section 229A(1) of the Criminal Code is as follows:

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.

3.	The facts as pleaded to in the Plea of Guilty is that between the months of April 2017 and 31 December 2017, at the offender’s  residential home at Makana Block, 9 Mile in the National Capital District, the offender enticed the victim 13 years old female at that time with money and took her into his room and penetrated her by inserting his penis into her vagina and told her not to tell her parents. The offender was caught and reported to the police.

4.	In allocutus, the offender expressed remorse however he stated that he was in a relationship with the victim who was also in a relationship with other men. The offender stated that he only penetrated the victim eight times and or at eight different occasions and that he did so without putting a knife to her and that “they were just friends”.  The offender asked the Court for time to compensate the victim and her family.

5.	 The prisoner has no prior convictions as he is a first time offender.

6.	 The particulars of the offender are as follows:

a)	Age: 35 years old
b)	Background: He is from Kilau village, Karamui /Salt Nomane, Simbu Province.
c)	Family; He is married with two children. The Pre-Sentence report states that he was married after the commission of the offence. His wife Rose Rockey states in the Pre-Sentence report that the offender has HIV Aids however he had torn up his medical report as she states that he does not want to be seen as a sick person. There are no other particulars of when he acquired this disease as he has sexually penetrated the victim in 2017.
d)	Employment: he and his wife are both unemployed.
e)	Education: the offender left school at Grade 3.
f)	Current Status: the offender is currently on bail after conviction and resides at Gordons, National Capital District.

7.	There is a Victim Impact Statement by the father of the victim on behalf of the victim that the victim was only a child at the age of 13 years old when she was sexually violated. The Statement also states that the victim has been traumatised and is in fear of being alone and in public as the ordeal has affected her dignity as a young woman. Her father also states that being a young woman from the highlands region, the offence has affected her economic value and has shattered any hope for bride price for the family. The family has refused to accept any form of compensation from the offender as they say the damage to the victim is irreparable and that the victim will live with the effects of the trauma for the rest of her life.

8.	What is surprising at the hearing of the submissions on sentence, Mr Sumbuk representing the prisoner has informed the Court that the victim has “moved on.” I have pressed Mr Sumbuk as to what he meant only to find that those assertions by Mr Sumbuk are unfounded as they are hearsay.

9.	I now consider comparable cases to determine the appropriate sentence in this matter:

a)	In State v Mokei (No 2) [2004] PGNC 129; N2635 (26 August 2004), the offender pleaded guilty to sexually penetrating a 13 year  old who was his niece.   The offender was sentenced to 15 years in prison. Justice Cannings considered the set of questions to be applied when considering the factors in sentencing of sexual offences against children. I adopt these questions and set it out below with answers specific to this case as;

i.	Is there only a small age difference between the offender and the victim? No. The Offender was  29 years old at the time of the offence and the victim was 13 years old. There is an age difference of 16 years.

ii.	Is the victim not far under the age of 16 years? The victim  was 13  years old.

iii.	Was there consent? No. 

iv.	Was there only one offender? Yes.

v.	Did the offender not use a threatening weapon and not use aggravated physical violence? No, there was no weapon and no violence. The offender enticed the victim using money.

vi.	Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim? Yes and no. The Pre-Sentence Report states that the offender’s wife is aware that he has HIV AIDS however there is no information as to when he contracted the disease and whether this was transmitted to the victim. There is the potential of transmission to the victim if he was HIV positive in 2017.

vii.	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? No, there is no evidence of any such relationship.

viii.	Was it an isolated incident? It was reported as  an isolated incident  however the offender has admitted in Court that he had penetrated the victim on eight occasions.

ix.	Did the offender give himself up after the incident? He was arrested and made an early guilty plea.
 
x.	Did the offender cooperate with the police in their investigations? Yes.

xi.	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? No. He has asked to pay a compensation amount  of K1000 however the victim’s family have refused to accept any compensation.

xii.	Has the offender caused further trouble to the victim or the victim’s family since the incident? No. 

xiii.	Has the offender pleaded guilty? Yes.

xiv.	Has the offender genuinely expressed remorse? The offender has expressed remorse however the offender insists that the victim was in a relationship with him.

xv.	Is this his first offence? Yes.

xvi.	Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? No.

xvii.	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? He is a first time offender.

b)	In State v Soni [2008] PGNC 237; N3694 (14 November 2008), two offenders had sexually penetrated a girl aged 14 years of age  who had an existing mental condition. The Court stated that where the victim was overpowered  by the strength of the males,  a higher sentence  should be  considered. The Court sentenced both of the men to 15 years in hard labour.

c)	In State v Tugumar [2013] PGNC 219; N5377 (16 August 2013), the offender a 51 year old pleaded guilty to sexually penetrating his adopted daughter who was 16 years old at the time despite her please for him to stop what he was doing. The offender had used a weapon being a small pocket knife to threaten the victim. The Court sentenced the offender to 10 years in hard labour.

d)	In Sabiu v State [2007] PGSC 24; SC866 (27 June 2007), this was an appeal of a sentence of 17 years on the offender who had pleaded guilty to sexually penetrating a child under the age of 12 years of age. The Supreme Court affirmed the sentence of 17 years on the offender.

10.	I am reminded by the case of Goli Golu v The State [1979] PGSC 9; [1979] PNGLR 653 (14 December 1979) that the maximum penalty should be reserved for the most serious offences.

11.	I find that the aggravating factors in this case are that:

a)	There is an age difference of about 16 years between the offender and the victim at the time of commission of the offence.
b)	The offender had enticed the victim with money to lure her to sexually penetrate her.
c)	The offender is known to the victim and her family.
d)	The offender has admitted to sexually penetrating the victim on eight occasions.
e)	The victim impact statement reveals that the child is traumatised and will live with the trauma for the rest of her life.
f)	There is a growing prevalence of such offences against young girls and children.

12.	There is also the potential that the offender could have potentially infected the victim as he is currently HIV AIDS positive however this is subject to appropriate tests.

13.	The mitigating factors are minimum in that apart from the early guilty plea saving the Court from running a full trial, the offender is a first time offender and has expressed remorse in the Allocutus in which I find that apart from saying that he was remorseful for what he did, the offender had reduced his remorse when he said that the victim was “his friend” meaning he was in a relationship with a child as if to justify what he did.

14.	I do not accept that compensation is appropriate in sexual offences against children. It may be appropriate to maintain ties between clans and traditional groups but it is inappropriate in sexual offences against children to mitigate the punishment.

15.	Considering all the relevant cases, the aggravating factors and the point that there was no aggravated physical assault on the child, the comparable cases and the seriousness of this offence over the haphazard or feigned remorse of the offender, I will sentence the offender to 15 years in hard labour. The Prisoner’s bail after conviction is therefore revoked and the prisoner shall be committed to serve his sentence.

Sentenced accordingly.

_____________________________________________________________	
Office of the Public Prosecutor 	: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused