State v Erick [2024] PGNC 230; N10882 (19 April 2024)

N10882

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1530 OF 2022

THE STATE

V

DAVID ERICK

Lae: Kangwia J.
2024: 18^th & 19^th April

CRIMINAL LAW – Sentence – Sexual penetration of daughter – guilty plea by first-time offender- breach of trust – moral perversion of the highest in order of seriousness - threats applied - repeated acts – no remorse - prevalence of the offence – trauma experienced – demands deterrent sentence- sentenced accordingly.

Cases Cited.
State v Biason Benson Samson (2005) N2799
Sabiu v the State [2007] SC866
Collin Inai v The State [2019] SC1792
Mankia v State [2020] SC2199
Goli Golu v State [1979] PNGLR 563
Mora Meaoa v the State [1996] PNGLR 280

Counsels:
N. Pare, for the State
J. Steven, for the Defence

19^th April 2024

1. KANGWIA J: David Erick appears as a prisoner for sentence after the Court convicted him on his guilty plea to one count of sexual penetration on his biological daughter who was then 13 years old.

2. The facts to which he pleaded guilty to state that the offender is the biological father of the victim. On 10 March 2023 after dinner, he told the victim that she and her mother had already given him hard time when they reported him to police and now must comply with what he said or else he would kill her.

3. He then removed her trousers and sexually penetrated her. The next day the victim reported to the village councillor and the offender was eventually charged by police.

4. He is believed to be 34 years old and married with 03 children. He has no prior conviction.

5. On his allocatus the offender says; I say thank you for giving me time. I will not deny it but say sorry for committing the offence. I don’t know why it happened. It is my first time. I say sorry to the Court”.

6. On his behalf Ms Steven after highlighting the principles in sentencing submits that a sentence of 9 to 11 years was appropriate in line with the guidelines set out in the case of the State v Biason Benson Samson (2005) N2799 which was adopted and approved by the Supreme Court in Sabiu v the State {2007] SC 2866. Even though the aggravating factors outweigh those in mitigation the circumstances of the present case did not make it serious. There were no injuries cause d to the victim and no sexually transmitted disease were passed. The offender also pleaded guilty early, and he acted alone. The Court was referred to a number of cases where sentences imposed in similar cases involving victims aged below 12 years as guides is sentencing.

7. On behalf of the State Mr. Pare while acknowledging the sentencing principles and mitigating factors relied by the defences nonetheless submits that a sentence of 20 years was appropriate. There was a breach of trust by a biological father with no reconciliation was made or remorse shown to the victim. The offender committed sexual penetration on the victim more than once and the trauma experienced will remain with the victim for a long time. The offence is also prevalent in Lae which calls for a deterrent sentence. He then cites the Supreme Court cases of Collin Inai v the State [2019] SC 17992 and Mankia v State [2020] SC 2199 as guides for sentencing purposes in the present case.

8. In the Inai case the appellant applied for leave to review a sentence of 20 years for sexual penetration with the daughter who was under 16 years. The Supreme Court refused leave on the grounds that the applicant failed to establish the error by the trial judge in the head sentence of 20 years was in excess of set guidelines.

9. In the Mankia case, on an appeal against a sentence of 15 years for sexual penetration of a victim of 15 years by the offender who was aged 60 years, the Supreme Court refused the appeal on the grounds that there was no error in the exercise of sentencing discretion by the trial judge.

10. In the present case the victim was below the ages of 16 years being 13 years at the time of the offence and a sentence to be imposed must reflect that.

11. The cases cited by the defence relate to victims under 12 years and do not apply in the circumstances of the present case. The cases cited in submissions on behalf of the State are more relevant as guides in arriving at a sentence.

12. The offence of sexual penetration under s 229A of the Criminal Code states:

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.

13. As can be noted the prescribed penalty for sexual penetration of a child under the age of 16 years is 25 years. If it is aggravated the maximum prescribed penalty is life imprisonment. The present case is aggravated by the fact that the victim is the blood daughter of the offender, and a breach of trust has been committed, hence he is liable to be sentenced to life imprisonment.

14. However, sentencing is an exercise of discretion pursuant to s 19 of the Criminal Code.

15. There is also the sentencing practice that the maximum prescribed penalty is reserved for the worst category of each offence the maximum prescribed penalty shall not apply in the present case. (see Goli Golu v State (1979 PNGLR 563).

16. This is a case that falls into the serious category of sexual penetration. A morally defunct father had by his lustful conduct shattered what is supposed to be a normal God given father daughter relationship. Sexual penetration between blood relatives depicts a moral perversion of the highest in order of seriousness.

17. There is nothing that can mitigate the seriousness attached with it.

18. The only factor operating, in his favour is that he pleaded guilty as a first-time offender.

19. From the facts presented he committed sexual penetration on the same victim on an earlier occasion which was reported to police but somehow, he was released. This makes him a repeat offender. It calls for complete separation from the victim to avert another repeat. The only way to do this is to keep him isolated from the victim.

20. The offence is prevalent in a country trying to declare itself a Christian country. Habitual sexual penetration on minors in breach of trust relationships does not support the grand proposition by politicians. It is more prevalent in Lae as the Court records show.

21. It is not subsiding despite high sentence being imposed by the Courts and it is unlikely that such offences will subside so long as humans live on this part of planet earth. The prevalence of the offence is demanding a deterrent sentence.

22. The victim will live with the traumatic experience and the stigma associated with it for the rest of her life.

23. Custodial sentences are being imposed for similar cases that are reported. Those unreported cases are being treated as normal.

24. Sentencing for similar offences is varied but high in this country.

25. The position of the Courts for sexual penetration in a breach of trust relationship goes back to the case of Mora Meaoa v the State [1996] 280. In that case the Supreme Court in an appeal against sentence of 12 years for rape of a victim aged 12 years said;

Breach of a position of trust is an aggravating factor in sexual offences and warrants heavier sentence. Positions of trust are not limited and may extend to such defacto situations as a vehicle or boat operator and his passengers.

The extra distress of a trial in a sexual offence means the loss of reduction in sentence which a plea of guilty brings. Rape is regarded as a most grave offence and warrants a punitive sentence.

26. That summation of the Supreme court cannot be ignored in the present case.

27. The appropriate sentence in the present case should be 20 years imprisonment in line with the Inai case referred to earlier and that shall be the sentence for the prisoner. From the 20 years the period in custody to today shall be deducted and the prisoner shall serve the balance at CIS Buimo.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence