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State v Gule [2007] PGNC 203; N5047 (24 August 2007)

N5047

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 686 0F 2006

THE STATE

V

PAUL GULE

Kimbe: Cannings J
2007: 17 July, 16, 24 August

CRIMINAL LAW – sentence – sexual penetration of a child under the age of 16 years – circumstances of aggravation – child under the age of 12 years – Criminal Code, Sections 229A(1), (2) – guilty plea.

A 60-year-old man pleaded guilty to sexual penetration of an 11-year-old girl. He claimed that the girl consented.

Held:

(1) The maximum penalty for the offence of engaging in an act of sexual penetration with a child under the age of 16 years in circumstances of aggravation, eg where the child is under the age of 12 years, is life imprisonment.

(2) Mitigating factors were: offender acted alone; no weapon or violence used; no STD; isolated incident; no special relationship of trust; isolated incident; co-operated with police; no further trouble; pleaded guilty; remorse; first offender; offender's advanced age.

(3) The court imposed a sentence of 8 years. The pre-sentence period in custody was deducted and 2 years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Jack Mari v The State SCR No 19/2006. 02.03.07
Joe Nawa v The State SCR No 16/2006. 02.03.07
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Biason Benson Samson (2005) N2799
The State v Charles Rome CR No 502/2007, 13.07.07
The State v George Taunde (2005) N2807
The State v Ian Unawing CR No 392/2005, 19.08.05
The State v Jeffery Toapas CR No 1924/2005, 25.08.06
The State v John Ritsi Kutetoa (2005) N2814
The State v Johnson Roman CR No 1924/2005, 23.03.07
The State v Pennias Mokei (No 2) (2004) N2635
The State v Titus Soumi (2005) N2809
The State v Willie Dominic (2005) N2938

PLEA

An accused pleaded guilty to engaging in an act of sexual penetration with a child under the age of 16 years and the following reasons for sentence were given.

Counsel

F Popeu, for the State
R Beli, for the accused

24 August, 2007

1. CANNINGS J:This is a decision on sentence for a man who pleaded guilty to engaging in an act of sexual penetration with a child, arising from the following allegations. The incident happened on the morning of 5 March 2006. The offender was at Sarakolok, near Kimbe. The complainant, an 11-year-old girl, had left her block and gone into the family garden to dig some kaukau. She was by herself. The offender followed her, they talked and he sexually penetrated her by introducing his penis into her vagina. The complainant's sister-in-law soon afterwards confronted the offender, asked him what he had done and he ran away. The matter was then reported to the police.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender said:

I say sorry before this court for what I have done. I am an old man and no longer working. I have children and a block to look after. The children are still young and rely on me.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty, he is entitled to benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). The facts to which the offender pleaded guilty did not include the original story that he had forced sex with the complainant. He said in arraignment that that part of the story was not true. He said that when the complainant saw him she asked him for money. He only had K2.00 so he gave her that, then told her to go ahead of him to a certain location. He followed later, then they had sex. She then told him that they would have sex again. This version of events was not contested by the prosecution, so I will act on it. Whether it is a mitigating factor and if so, what weight should be attached to it, are issues I address later in the judgment. The depositions show that the offender was arrested and detained in custody soon after the incident. He co-operated with the police and made admissions in his police interview.

PRE-SENTENCE REPORT

5. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

PAUL GULE: 60-year-old male.

Residence: has been living at Section 27 settlement, Kimbe and the Mill compound, Mosa, for the last two years – also has a home at Kumburi village, Bali Island, WNBP.
Family background: Kumburi, Bali Island parentage – has one sister, with whom he has been living with at Section 27 settlement.
Marital status: single – never married.
Education: grade 3, Kumburi Primary (1969).
Employment: had a casual labouring job in Rabaul in 1990s.
Health: collar bone pain, otherwise OK.
Financial status: unemployed, without income or assets – relies on relatives for financial support.
Plans: head home to Kumburi.
Religion: Catholic, but not committed.
Victim's family's attitude: do not want compensation – just want the offender sent to jail.
Offender's family's attitude: generally supportive but cannot provide financial support to him.
Attitude of community: he had not been in Kimbe or Mosa long before the incident, so little is known about him.
Assessment: low risk – no record of molestation of young girls.
Recommendation: suitable for probation for short period.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Beli asked me to place a lot of weight on the guilty plea, the expression of remorse, his claim that the girl consented and the offender's age. He submitted that a sentence of eight years would be appropriate and that it should all be suspended.

SUBMISSIONS BY THE STATE

7. Mr Popeu agreed that eight years would be appropriate and that the offender's advanced age is a major mitigating factor.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty for each offence?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The offence of engaging in an act of sexual penetration with a child under the age of 16 years, in circumstances of aggravation (the child was under the age of 12 years) attracts a maximum penalty of life imprisonment (Criminal Code, Sections 229A(1), (2)).

STEP 2: WHAT IS A PROPER STARTING POINT?

10. The Supreme Court has yet to give sentencing guidelines for these sorts of offences but based on sentences that have been imposed by the National Court and some sentences that have been reviewed by the Supreme Court, I will use a starting point, given that the maximum sentence is life imprisonment, of 20 years.

STEP>STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. I will summarise the sentences I have imposed since 2004 exual penetration and then the result of three recent SupreSupreme Court cases, where there was an appeal against sentence for sexual penetration. These sentences will give a guide to the sorts of sentences that should be imposed in the present case.

SENTENCES ON SECTION 229A, CANNINGS J, 2004-2007

SUPREME COURT SENTENCES ON SECTION 229A

STEP 4: WHAT IS THE HEAD SENTENCE?

12. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 9 focus on the circumstances of the incident. Numbers 10 to 14 focus on what the offender has done since the incident and how he has conducted himself. Numbers 15 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Is there only a small age difference between the offender and the complainant? No – the offender was aged 59 and the complainant 11; an age gap of 48 years.
   
2. Is the complainant not far under the age of 16 years? No.
   
3. Was there consent? Neutral. The offender says that the girl consented but given that her age was 11, it is doubtful that any consent could be genuine.
   
4. Was the form of penetration other than penile penetration? Yes. I consider this as a mitigating factor given that digital or other forms of penetration would generally be less painful, involve a lesser feeling of violation and humiliation and a lesser degree of risk of disease transmission than penile penetration.
   
5. Did the offender not use a threatening weapon and not use aggravated physical violence? Yes.
   
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the complainant? Yes.
   
7. Did the incident have only a minimal impact on the child? No. It can only be presumed that at that age the emotional effect would be substantial.
   
8. Was there no relationship of trust, dependency or authority between the offender and the complainant or, if there was such relationship, was it a distant one? Yes.
   
9. Was it an isolated incident? Yes.
   
10. Did the offender give himself up after the incident? No.
    
11. Did the offender cooperate with the police in their investigations? Yes.
    
12. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did? No.
    
13. Has the offender not caused further trouble to the complainant or the complainant's family since the incident? Yes.
    
14. Has the offender pleaded guilty? Yes.
    
15. Has the offender genuinely expressed remorse? Yes.
    
16. Is this his first offence? Yes.
    
17. Can the offender be regarded as a youthful offender? Neutral.
    
18. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes, his advanced age and a moderately favourable PSR, which suggests he is not a danger to the community.
    

13. There are 11 mitigating factors compared to five aggravating factors. The sentence should be well below the starting point of 20 years. I impose a head sentence of eight years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

14. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is three months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

15. The offender is not considered a threat, so I will suspend two years of the sentence on the following conditions:

(a) must reside at Kumburi and nowhere else except with the written approval of the National Court;

(b) must not leave WNB Province without the written approval of the National Court;

(c) must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(d) must attend a church to be approved by the National Court every week for service and worship and assist the church in its community activities;

(e) must report to the senior Probation Officer at Kimbe on the first Monday of every third month between 9.00 am and 3.00 pm;

(f) must not consume alcohol or drugs;

(g) must keep the peace and be of good behaviour;

(h) must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence.

ORDER

16. Paul Gule, having been convicted of one count of engaging in an act of sexual penetration with a child under the age of 16 years is sentenced as follows:

Sentenced accordingly.
_________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender