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State v Sabiu [2005] PGNC 177; N3659 (21 December 2005)

N3659

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1832 of 2005

THE STATE

V

STANELY SABIU

Vanimo: Kandakasi, J.
2005: 13th and 21st December

DECISION ON SENTENCE

CRIMINAL LAW –Sentence – Sexual penetration of a girl under 12 years – Physical injuries caused - Offence committed in breach of trust as uncle – Guilty plea – First time offender – Substantial age difference - Aggravating factors outweighing those in mitigation – years imposed - Sections 229(92) of Criminal Code.

Cases cited:

The State v. Eddie Trosty (10/09/04) N2681.
The State v. Peter Lare (20/05/04) N2557.
The State v Kemai Lumou (23/09/04) N2684.
The State v. Thomas Angup (21/04/05) N2830.
The State v. John Ritsi Kutetoa (22/03/05) N2814.
The State v Abel Airi (28/11/00) N2007.
The State v. Sinzai Karawa (27/08/04) N2631.
The State v Ebes Tiun (30/04/01) N2129.
The State v. Lucas Yovura (29/04/03) N2366.
The State v Isidor Kaream (11/05/04) N2610.
The State v. Henry Mapi (03/07/98) N1936.
The State v. Blasius Amandin Parlau (25/03/04) N2680.
The State v Nason Samban (25/03/04) N2598.
James Mora Meaoa v. The State [1996] PNGLR 280.
The State v. Eddie Peter (No 2) (12/10/01) N2297.
The State v. Nivi Araba (22/04/99) N1849.
The State v Damien Mangawi (13/06/03) N2419.
The State v. Donald Poni (22/09/04) N2663.
The State v. Kenneth Penias [1994] PNGLR 48.
Seo Ross v. The State (30/04/99) SC605.
The State v. Saperus Yalibakut CR NO. 1476 of 2005 (Judgment delivered on 26/09/05).

Counsels:

Mr. J. Wala, for the State.
Mr. G. Korei, for the Prisoner.

21 December, 2005

1. KANDAKASI J: You pleaded guilty to one charge of sexual penetration of a child under the age of 12 years, contrary to s.229A (1) and (2) of the Criminal Code.

Relevant Facts

2. The facts to which you pleaded guilty are these. On 31 March, 2005, at Amini village, here in the Sandaun Province, around 10:00 am, the victim of your offence (named), then a 6 year old boy went with other children in the village to scrap sago. Some minutes later, you followed the children. When you reached where the children were, you grabbed the victim and carried him away to the nearby bushes. The victim cried and shouted and struggled to free himself from you but you over powered him. The other children ran away in fear.

3. When in the bushes, you forced the victim to bend down with his head down. You then lifted a jacket he was wearing that time, forced your penis into the victim’s anus and proceeded to have anal sex with him until you ejaculated your sperm. In the process, you caused the victim to suffer bruising from which he bled and suffered great pain. The victim’s parents and other villagers had no difficulty in finding the victim bleeding from his anus with remains of your sperm and discovered what you did. The parents of the victim reported you to the police, who arrested and charged you.

3. Meanwhile, the victim recovered from the physical injuries you caused him. However, there is no evidence of whether he has recovered from the psychological injuries you caused him by doing what you did. In the circumstances, I will allow myself to be guided by the well known normal consequences of such sexual attacks on young children or any other person. I will take this up further when considering the factors for and against you.

4. You tried to justify what you did by claiming that you had personal grudges with the victim’s parents over you not receiving bride price for the victim’s mother. You claimed in your allocutus that, you raised the victim’s mother who is a sister to you when she was small and that entitled you to bride price when she got married but did not receive any but others did. So you attacked the victim in the way you did.

The Offence and Sentencing Trend

5. Section 229A (1) and (2) of the Criminal Code creates and prescribes the offence of sexual penetration of a child 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 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."

6. The Criminal Code (Sexual Offences and Crimes Against Childrens) Act 2002 introduced this offence in these terms by way of an amendment to the Criminal Code. The offence pre-existed the amendment. Section 213 of the Code provided for and prescribed life imprisonment as the maximum penalty for sexual penetration of a girl under 12 years old. Out of a serious concern for the protection of children in line with international measurements taken for the protection of children, Parliament amended the then existing law to better provide for the protection of children. It increased the then prescribed maximum penalty for sexual penetration of a girl under sixteen years to 25 from a low of 5 years and made provision to cover both sexes. At the same time, Parliament decided to retain the penalty prescription of life imprisonment for the sexual penetration of a girl under the age of 12 years and also make that apply to the other gender as well.

7. In The State v. Eddie Trosty,[1] I held that in view of the reasons for the amendments to the law, sentences for the offence of sexual penetration of child under the age of 16 must be beyond the maximum prescribed under the old law. I then decided to impose a sentence of 6 years on a guilty plea. The prisoner and his victim were in boy friend and girl friend relationship. The victim was 15 years old whilst the prisoner was 21 years old at the time of the offence. They had several sensual sexual intercourses. The prisoner did not cause any injuries to the victim. He also did not introduce the victim to any sexually transmitted disease. These factors influenced me to arrive at the sentence of 6 years.

8. Earlier on in The State v. Peter Lare,[2] I imposed a sentence of 20 years. There, the prisoner was an uncle to the victim and he had several and or repeated acts of sexual penetration of the victim over a four year period. There was substantial age difference between them. The prisoner was 40 years old whilst the victim was under age 12. The prisoner did not express any genuine remorse, evidenced by a lack of payment of any form of compensation to the victim and her side. Further, the prisoner infected the victim with a sexually transmitted disease.

9. In arriving at that sentence, I noted that:

"This amending legislation came about out of a growing concern over an ever increasing and prevalent sexual offences and crimes against ...children. This concern was not only a local PNG concern but a world wide concern to protect the victims of such crimes particularly women, girls and children because of their vulnerability and therefore not able to defend themselves. The amendment also represents an action by Parliament against past sentences not deterring offenders like you and other would be offenders. Many judgments have acknowledged this failure of the past sentences. Examples of such judgments to name only a few are: The State v. Damien Mangawi (Unreported judgment delivered on 13/06/03) N2419; The State v. Dii Gideon (Unreported judgment delivered on 05/03/02) N2335.

No doubt, Parliament [was] ...aware of the kind of sentences the Courts were imposing and more importantly those sentences failing to deter other men and older boys who were intent on committing this offence against small girls. Some of the cases that went before the Courts were actually rape and others were cases of incest in blatant breach of trust placed in the older offenders by the victims as close relatives. Parliament therefore felt the need, in my view, to re-emphasis the seriousness of the offence and re-enacted offence and in terms of the particular wording in s. 229A. This enactment has come at a time when past sentences have certainly not deterred people like you from committing the offence despite all the concerns raised publicly both within our country and in the international arena".

10. Having regard to the sentence and the particular circumstances in which the prisoner committed the offence in the above case, I imposed a sentence of 17 years in the later case of The State v Kemai Lumou.[3] There, the Court convicted the prisoner after a trial. The facts disclosed a rape of a niece by an uncle using a bush knife. The victim was much younger than the offender was. Despite this, the State charged him with sexual penetration and not rape.

11. Citing my judgment in The State v. Peter Lare,[4] Mr. Justice Lay imposed a sentence of 20 years for one out of a number of sexual offence charges in the case of The State v. Thomas Angup.[5] From the head note to the case, the Defendant was convicted on a plea of guilty of 1 count of sexual touching of a child under 12 years in 1998. He was also convicted of 1 count of sexual penetration of a child under 12 years in 1998 and 2 counts of sexual penetration of a child under 16 years, in 2000 and one in 2003, on unspecified dates. All of these offences were committed in breach of an existing relationship of trust. The charges arose out of a pattern of sexual abuse over a period of 6 years. The victim became pregnant and bore a son before age 16. Her schooling was terminated.

12. In The State v. John Ritsi Kutetoa,[6] Cannings J, cited the judgments in The State v. Peter Lare,[7] and The State v Kemai Lumou[8] and imposed a sentence of 17 years. There, the prisoner got his stepdaughter into a room in their house, where he sexually penetrated her. She was about 11 years old at the time. There was a relationship of trust namely stepfather and stepdaughter which the prisoner breached.

Sentence in Your Case

13. In order to determine what sentence is appropriate in your case, I need to take into account and weigh both the factors operating for and against you. Considering first the factors in your favour, I note that your conviction was on your guilty plea. That saved the State the time and money it could have spent on running a trial. It also spared the victim from reliving the memories of what you did to him.

14. Secondly, I note that, this is your first ever conviction. That means, until the commission of the offence for which you are now in Court, you have been a good law abiding citizen.

15. Thirdly, in your allocatus, you said and there is no contest from the State that you paid customary compensation of K500.00. That resolved the matter customarily but did not extinguish the criminal responsibility you have to bear under the formal criminal justice system we have in the country. Your payment of customary compensation is however a factor in your mitigation only.[9]

16. Finally, you said sorry in Court to the parents of the victim, those in Court and the Court for what you did to the victim. This is a flow on from your paying customary compensation, which I believe must have restored the relationship you might have broken between your side and that of the victim’s side.

17. In addition to these factors in your mitigation, I note that you are the only surviving brother out of three brothers in your family. You have vanilla and other gardens from which you support your family. You have one sister who is married to a man away from your own village. You are married with 6 children, with three of them attending primary school. The others are with their mother at home. A prison term will seriously affect your family. Such a consequence is however, the direct result of your own criminal acts. I need only repeat what I said in a number of cases already as in The State v. Lucas Yovura[10] where I said:

"Indeed I note what the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 said is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offenders personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed."

18. Turning now to the factors against you, I first note that you committed an offence against a very small boy. You are a much older person compared to the victim, who was at the time of the offence only 6 years old. Clearly therefore, he was a child in every sense of the word. As I have noted else where already,[11] the international and our own communities have been repeatedly calling for protection of children given their vulnerability. Your conduct in my view is nothing short of a worse form of child abuse. Normal thinking and behaving adults like you, are expected and do in fact, protect the young and the weak instead of exploiting them as you have. The world and all normal thinking Papua New Guineans are calling for a protection of this group of our people so they can continue to allow our country to exist as a nation, not only for today but also, for the years to come. The number of sexual offences against children are on the increase and the kind of sentences the courts have been imposing to date appear not to be deterring would be offenders like you. Parliament has been responsive enough in enacting the appropriate legislation and increased penalties for offences against children. The duty is now on the courts to similarly respond for the protection of our children who are children today and would be the citizens and leaders of our nation tomorrow.

19. Secondly, there is no contest that, you are the natural maternal uncle of the victim. He was thus, your nephew. There was therefore a natural and stronger blood trust relationship between your victim and you. You therefore broke the trust that was placed in you by the victim as an uncle of his and of the two of you, more older than him.

20. In addition to the specific statutory provision on it, both this Court and the Supreme Court have clearly stated that an offence committed in breach of a trust renders the commission of the offence serious. The Supreme Court in James Mora Meaoa v. The State,[12] made that clear. In so doing, it held that a breach of a position of trust is an aggravating factor in sexual offences and warrants heavier sentences. It also held that positions of trust are not limited and may extend to de facto situations such as a vehicle or boat operator and his passengers. I have adopted and applied this principle in many cases, an example of which is, The State v. Eddie Peter (No 2).[13]

21. Thirdly, you caused both physical and psychological pain and suffering to the victim. Physically, the victim cried and struggled to free himself from you but you over powered him. You then proceeded to penetrate him through his anus and had sex with him until you ejaculated your sperm into his anus. As you were helping yourself, the victim cried in pain, which did not stop you from further hurting him until your sexual desire was fully satisfied with the ejaculation of your sperm. The evidence shows bruising in the victim’s anus. Fortunately, he has recovered from those injuries.

22. As for the psychological injuries, although there is no evidence establishing any such injuries, such a consequence exists in almost all cases, of sexual attacks on a person by another. Many cases have acknowledged such injuries. An example of a case on point is The State v. Nivi Araba,[14] where his Honour Sakora J said:

"The very fact of sexual contact and penetration of an unwilling and unconsenting woman and an under-age girl involves physical harm and injury. It is a physical assault as defined by both the law of torts and criminal law, as well as a sexual offence. And the psychological harm, more particularly to a younger victim, can be immeasurable. There can never be a proper and accurate determination of this, even with the best and available professional facilities. So many imponderables, so many ifs and buts in the world of the mind and the psyche. But some degree of psychological harm, either long-term or of short duration, is inflicted and suffered cannot be disputed."

23. Fourthly, you committed the offence against a person of the same sex through his anus. That in itself constituted an offence. What you did was against the order of nature, which Section 210 of the Criminal Code prohibits. This offence carries a maximum penalty of up to 14 years.

24. Finally, you committed the offence against an innocent child. You had grudges against your own sister, the mother of the victim. The child had nothing to do with the subject matter of your differences with the mother. Instead of taking up the issue of you not getting any bride price from the victim’s mother with her as an adult, you took it against a very innocent child. You took the law into your own hands to the extreme with no good cause whatsoever.

25. In weighing the factors both for and against you, I note that the factors in aggravation far outweigh the factors in mitigation. In such a case, the maximum prescribed sentence or one closer to that may be imposed. Injia J. (as he then was), applied that principle in The State v. Kenneth Penias.[15] The Supreme Court approved an application of that principle in Seo Ross v. The State.[16] I followed that in my most recent decision in The State v. Saperus Yalibakut.[17]

26. Given that, I note, there is nothing preventing an imposition of the maximum prescribed sentence of life imprisonment as the victim was under the age of 12 at the time of the offence and that you committed the offence in breach of a trust. However, you being a first time offender, your guilty plea and having paid some compensation operate against an imposition of the prescribed maximum sentence of life imprisonment. Nevertheless, these factors are not sufficient to prevent an imposition of a deterrent sentence to deter you and other persons of similar mind as yours from committing offences against children in general and in particular, the kind of offence you committed. Having regard to the kind of sentences that the courts have imposed to date in similar cases, I consider a sentence of 17 years is appropriate and I impose it against you.

27. Of the head sentence of 17 years, I order that the time you have already spent in custody awaiting your trial and sentence be deducted. That will leave you with the balance to serve in hard labour at the Vanimo Correction Services. A warrant of commitment in those terms shall issue forthwith.

__________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

^[1] (10/09/04) N2681.
^[2] (20/05/04) N2557.
^[3] (23/09/04) N2684.
^[4] Opt Cit. note 9.
^[5] (21/04/05) N2830.
^[6] (22/03/05) N2814.
^[7] Opt Cit. note 9.
^[8] Opt Cit. note 10.
^[9] See The State v Abel Airi (28/11/00) N2007; The State v. Sinzai Karawa (27/08/04) N2631and The State v Ebes Tiun (30/04/01) N2129 for examples authorities on point.
^[10] (29/04/03) N2366; see The State v Isidor Kaream (11/05/04) N2610 and The State v. Henry Mapi (03/07/98)
N1936 for similar views and approaches.
^[11] As for example in The State v. Blasius Amandin Parlau (25/03/04) N2680 and The State v Nason Samban (25/03/04) N2598.
^[12] [1996] PNGLR 280.
^[13] (12/10/01) N2297.
^[14] (22/04/99) N1849; Other examples include some of my own judgments as in The State v Damien Mangawi (13/06/03) N2419 and The State v. Donald Poni (22/09/04) N2663.
^[15] [1994] PNGLR 48.
^[16] (30/04/99) SC605.
^[17] CR NO. 1476 of 2005 (judgment delivered on 26/09/05).