Sabiu v State [2007] PGSC 24; SC866 (27 June 2007)

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APPEAL AGAINST SENTENCE – s.229A(2)Criminal Code – Sexual Penetration of Child under 12 years - Guidelines for Sentencing – Appeal against Sentence Principles

Cases cited
William Norris v. The State [1979] PNGLR 605.
Maima v. Sma [1972] PNGLR 49.
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. Binga Thomas (2005) N2828,
The State v.Kutetoa (2005) N2807,
The State v. Alois CR 236/05 Kokopo,
The State v. George Taunde (2005) N2807,
The State v. Ndakum Pu-Uh (2005) N2949
Ben Wafia v. The State (2006) SC851;
The State v. Ella Yasu (2007) CR 961/06 Vanimo.

1. BY THE COURT: Introduction: This appeal was heard on 26 June 2007. The Appellant appeals the sentence of 17 years imprisonment that was imposed upon him by the National Court at Vanimo after he pleaded guilty to sexually penetrating a child under the age of 12 years, contrary to s.229A(2) Criminal Code. The Appellant lists five (5) mitigating reasons why the sentence should be reduced. The State opposes the appeal as it contends that those five (5) mitigating reasons have already been taken into account, that the appellant has not shown any error by the trial judge and that the sentence of 17 years imprisonment is appropriate in the circumstances.

2. On 31 May 2005, the Appellant followed the victim, his 6 year-old nephew, into some bushes and forcibly had anal intercourse with him, causing the boy to suffer bruising, bleeding and pain as a consequence. The Appellant explained his actions by saying that he was upset that he had not received part of the bride price for his sister, the victim's mother.

3. Whether there was any error by the trial judge in determining the sentence that he imposed.

4. The legal principles on an appeal against sentence are well settled in this jurisdiction and were reiterated in the recent Supreme Court case of Ben Wafia v. The State (2006) SC851;

"A sentencing judge has a wide discretion. On an appeal against sentence the appellant must show that the sentencing judge has erred in the exercise of his discretion. Although there may be no identifiable error, if the sentence is out of all reasonable proportion to the crime there is an unidentifiable error: William Norris v The State [1979] PNGLR 605."

5. To determine whether the trial judge has erred in the exercise of his discretion requires a consideration of previous sentences that have been imposed for this category of offence.
6. Section 229A(2) Criminal Code to which the appellant pleaded guilty, came into force in 2002 and replaces the former s. 213 Criminal Code which was;

"A person who has unlawful carnal knowledge of a girl under 12 years is guilty of a crime,

(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.

7. Section 229A(2) came into force together with other amendments to the Criminal Code in 2002 because of the growing concern at the increase in sexual abuse cases against children. By passing these amendments Parliament has stated that sexual offences against children are very serious and should be punished as such. In the last 3 years sentences for the offence to which the accused has pleaded guilty and other offences under s.229A have increased, partly in response to the call of the community for stronger sentencing concerning the sexual abuse of children.

8. The National Court has considered and imposed numerous sentences for offences against s.229A since it came into force. Some of those cases 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; The State v Biason Benson Samson (2005) N2799; The State v Thomas Angup (2005) N2830, The State v Binga Thomas (2005) N2828, The State v.Kutetoa (2005) N2807, The State v. Alois CR 236/05 Kokopo, The State v. George Taunde (2005) N2807, The State v. Ndakum Pu-Uh (2005) N2949 and The State v. Ella Yasu (2007) CR 961/06 Vanimo
9. Of those cases where the victim was 12 years of age and under, the sentences of imprisonment imposed were 20, 17, 9 and 8 years. In the latter 2 cases the victims were 10 and 12 years of age and the offenders were 18 and 21 years of age. In 5 cases where the victims were between 13 and 15 years of age, sentences of imprisonment imposed were 20, 17, 15, 12 and 10 years.

10. The general principles of sentencing provide that the maximum sentence is reserved for the worst cases: Maima v. Sma [1972] PNGLR 49. The maximum sentence for sexually penetrating a child under the age of 16 years is 25 years imprisonment and the maximum sentence for sexually penetrating a child under the age of 12 years is life imprisonment. What should the starting point be in such cases? In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that the sexual penetration of children under the age of 12 years is the more serious, hence the larger maximum penalty. In The State v. Biason Benson Samson (supra) Cannings J. determined that the starting point in a case involving a 13-year-old victim was 15 years imprisonment. We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than 15 years imprisonment.

11. In considering the circumstances of a particular case, Cannings J. in The State v. Biason Benson Samson (supra) restated a list of considerations for sentencing in respect of child sexual penetration cases that he had previously mentioned in The State v. Pennias Mokei (No 2) (supra). These considerations were adopted by Lay J in The State v. Ndrakum Pu-Uh (supra), and are:

a)	Is there only a small age difference between the offender and the victim?
b)	Is the victim not far under the age of 16 years?
c)	Was there consent?
d)	Was there only one offender?
e)	Did the offender use a threatening weapon and not use aggravated physical violence?
f)	Did the offender cause physical injury and pass on a sexually transmitted disease to the victim?
g)	Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?
h)	Was it an isolated incident?
i)	Did the offender give himself up after the incident?
j)	Did the offender cooperate with the police in their investigations?
k)	Has the offender done anything tangible towards repairing his wrong such as offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?
l)	Has the offender caused further trouble to the victim or the victim’s family since the incident?
m)	Has the offender pleaded guilty?
n)	Has the offender genuinely expressed remorse?
o)	Is this his first offence?
p)	Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
q)	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

12. We are of the view that the above are useful guidelines to be considered in sentencing for child sexual penetration cases. We emphasis 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.

13. In this case at pages 28 and 29 of the appeal book, the trial judge has taken into account that the appellant pleaded guilty, is a first-time offender, has paid some compensation, has expressed remorse and that there has been a restoration of the broken relationship with the family of the victim. These are four (4) of the mitigating reasons given by the appellant as to why his sentence should be reduced. The other mitigating reason, that damage had been caused by the victim's family and relatives, was not taken into account as there was no evidence of such damage occurring. Even if such damage had occurred, it is a matter that should properly be pursued separately by court action by the persons who had suffered the damage if the matter has not been settled amicably beforehand.

14. The trial judge has taken into account the following factors against the appellant; that the victim was only 6 years of age, that such offences are becoming far too prevalent, that the offence involved a breach of trust as the offender is the uncle of the victim, the physical and likely psychological pain and suffering caused to the victim, that the act was against the order of nature and that it was committed against an innocent child.

15. After considering all of the cases cited in this judgment, the severity of the particular cases and the sentences imposed, we are more than satisfied that it was open to the trial judge to impose a sentence of 17 years imprisonment upon the appellant. We are further satisfied that there is no identifiable error and also no unidentifiable error on the part of the trial judge as the sentence is not out of all reasonable proportion to the crime committed.

Supreme Court of Papua New Guinea

Sabiu v State [2007] PGSC 24; SC866 (27 June 2007)