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State v Solo [2005] PGNC 179; N3165 (22 December 2005)

N3165

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1254 of 2004

THE STATE

v

RUDY SOLO

Vanimo: Kandakasi, J.
2005: 15th, 19th and 22nd December

DECISION ON SENTENCE

CRIMINAL LAW –Sentence – Sexual penetration of a girl under 16 years – Bruising in vaginal canal – Consensual sex – Guilty plea – First time offender – Not much of an age difference - No breach of any trust - 5 years substantially suspended imposed - Sections 229A(1) 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 Paul Nelson (25/05/05) N2844.
Acting Public Prosecutor v. Don Hale (27/08/98) SC564.
The State v. Bill Saun Daniel; CR NO. 292 of 2005 (Judgment delivered 21/12/05).

Counsels:

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

22 December, 2005

1. KANDAKASI J: You pleaded guilty to one charge of sexual penetration of a girl under the age of 16 years, contrary to s.229A (1) of the Criminal Code.

Relevant Facts

2. The facts giving rise to the charge, your guilty plea and your conviction thereupon are these. On 5 March 2004, at Wutung Village, here in the Sandaun Province, you and the victim of your offence with some others were in the same house. That was between 10:30 and 11:30 pm. Some time later, the victim left for her own house. You then called her and told her that you had something to tell her and proposed to meet her at the beach.

3. The victim accepted that and headed for the beach. On seeing her going to the beach, you left your drinking of beer with the boys and followed the victim to the beach. When at the beach, you led her to the Village Cemetery and into some bushes there. There you removed her shorts and told her to lie down on the ground and she did. You then went on top of her and proceeded to have sexual intercourse with her. After having satisfied yourself, both of you got up to go back to the village but you wanted to have another round of sexual intercourse so the two of you had another round of sexual intercourse. Thereafter, both of you went back to the village.

4. In the victim’s statement in the depositions, she tries to paint the picture that you raped her, by grabbing her hands and dragging her into the cemetery area. There is no evidence of you having a bush knife or any other object or weapon to threaten her into submission. Besides, she had more than ample opportunity to call for help and or immediately report what you did to her if indeed you raped her but she did not. I am therefore not prepared to find that you raped her. Instead, I find that you had consensual sexual intercourse with the victim, who was then aged 15 years and 2 months old, whilst you were about 22 years old.

The Offence and Sentencing Trend

5. Section 229A (1) 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."

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 and the amendment increased the then prescribed maximum penalty of 5 years to 25 years and make it apply irrespective of the sex of the victim.

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 girl 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 had a 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 decease.

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 reenacted 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.

13. More recently, Cannings J., in my view has given an excellent summation and comparable table of nearly all of the cases thus far dealt with by the Court since the amendments in 2002 for an offence under s. 229A of the Code, in his judgment in The State v Paul Nelson.[9] That summation shows that sentences have ranged from as low as 2 years to 20 years. Those going beyond 2 years and 6 years have been in cases, where the offenders committed the offence in breach of an existing trust, there exists, serious aggravating injury and threats or actual violence is used to secure the commission of the offence

Sentence in Your Case

14. 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 of the shame and trouble you could have put her through to testify against you.

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

16. Thirdly, you did say sorry in your allocaturs for what you have done, appreciating that it was wrong. You went on to say that, you thought the victim was of age at the time when you came to know her sexually. Through the pre-sentence report, it is clear that, you and your parents were prepared to pay compensation of up to K1,000.00 but the victim’s parents have refused to accept such compensation.

17. The situation seems to have been complicated by another dispute. That has something to do with land. You and your parents are on one side while the victim and her parents are on the other side of the dispute. I get the clear impression that the victim’s statement to police and forming part of the depositions have that flavour in that, she tries to make it look as if you raped her when in fact it was a consensual affair between you and her. The village leaders through the pre-sentence report strongly recommend against sending you to prison in order to ensure that the situation in the village does not get out of hand. They instead suggest that you be given a non-custodial sentence with conditions for you to do community work at PNG/Indonesia border government outpost.

18. Fourthly, you did not use a bush knife or any other weapon or object to secure a commission of the offence against the victim. Instead, as I have just said it was a consensual affair. As such, there is no evidence of any serious aggravating injuries occasioned to the victim. You have not infected her with any sexually transmitted decease or anything like that. Similarly, there are no other seriously aggravating factors existing in this case.

19. I find that the factors in your mitigation outweigh the factors in aggravation. I am thus; persuaded to impose a sentence similar to the one I imposed in The State v. Eddie Trosty.[10] Bearing that decision in mind, your lawyer asked for 18 months sentence wholly suspended without pointing to any specific authority for making that submission, in the light of the reasons for the sentence imposed in the Eddie Trosty case. Counsel for the State asked for a sentence of 5 years, part of which should be suspended, without suggesting any proportion in particular.

20. I am persuaded by the inputs of the leaders of your village namely, your ward councillor Mr. Patrick Muliale and Cosmos Idabut, a community leader. They speak highly of you as well behaved men in the village, after achieving a good level of training passed high school education. They also speak of, more young men and women in the village having sexual affairs as they get into their puberty. In so doing, most of them are committing the kind of offence with which you have been charged. In a bid to stop this kind of behaviour they have asked the Court to impose upon you a non-custodial sentence with community work orders. Such a sentence they say will enable the other youngsters in the village to see that engaging in a sexual activity in the way you have is unlawful and they will hopefully, avoid committing it.

21. In Acting Public Prosecutor v. Don Hale[11] the Supreme Court said sentencing is a community responsibility. After all, the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. I have endorsed and followed that view in many cases in the immediate past, including some of the decision I handed down here in Vanimo in this circuit as in the case of The State v. Bill Saun Daniel.[12]

22. I am therefore prepared to impose a sentence that reflects the wishes expressed by the community through the pre-sentence report. This, I am prepared to do because I am of the view that, sending you to prison will not serve any useful purpose. You will be a strain on the State’s limited financial resources in terms of looking after you in prison and feeding you. Apart from not seeing you in your house and your community, the members of your family and community will not be able to see you serving your penalty. I therefore, consider a non-custodial sentence is appropriate but that has to be on strict terms as an alternative to imprisonment.

23. Taking into account all of the above, I consider a sentence of 5 years appropriate in the particular circumstances of this case. I also consider it appropriate that I should and do suspend 4 years and 10 months of that sentence on the following conditions:

1. You pay a fine of K300.00 immediately either by forfeiting your cash bail of K300.00 to the State, if you have not yet had that reimbursed to you or make a separate payment if you have already had your bail reimbursed;

2. You enter into a recognizance with a surety in the sum of K1, 000.00 (not cash) to keep the peace and be of good behaviour for a period of 18 months commencing the day you come out of prison after serving your two months;

3. For the whole of the suspended period commencing the day you come out of prison, you render three hours of free community service each Mondays, Wednesdays and Fridays excepting any public holidays to the Border Post at PNG/Indonesia border on the PNG side by cutting grass and undertaking any other physical labour based activity under the supervision and direction of your Ward Councillor Patrick Muliale in consultation with the Officer in Charge of the border post.

4. For the purpose of term 3 above, the probation service shall furnish to this Court a detailed work program within 7 days from today for the Court’s endorsement;

5 You be home bound between the hours of 6:00 pm and 6:00 am each day for the currency of your suspended sentence and report every day to the Officer in Charge of Police at the Border Post between the hours of 8:00 am and 4:00 pm for the whole of the suspended period;

6. During the currency of your suspended sentence, you shall not leave your place of residence at Wutung and the Sandaun Province unless leave of this Court has been first sought and obtained;

7. You will allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to report with such recommendations as he might consider appropriate either for a variation or an implementation of these terms;

8. The Probation Service shall furnish a bimonthly report to this Court of your performance and observance of these conditions with the first being due by 22 April 2006;

9 If for whatever reason you breach any of these terms the suspension of your sentence shall immediately be lifted and you will serve the full term of 4 years 10 months from the date of the first breach;

10. You will be at liberty to apply for a review and or variation of any of these terms including a lifting of any of these terms and conditions provided there has been substantial compliance, which shall include a full compliance of term 1, 2 and 3 above.

_________________________

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] (25/05/05) N2844.
^[10] Opt.Cit note 1.
^[11] (27/08/98) SC564
^[12] CR NO. 292 of 2005 (Judgment delivered 21/12/05).