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State v Solowet [2007] PGNC 226; N5039 (24 August 2007)

N5039

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 296 OF 2006

THE STATE

V

KIKIA SOLOWET

Kimbe: Cannings J
2007: 16, 24 August

CRIMINAL LAW – sentencing – persistent sexual abuse of a child – sentence after trial – victim, a child of ten years – Criminal Code, Section 229D – sentence of 10 years.

The offender was convicted after a trial of one count of persistent sexual abuse of a child, contrary to Section 229D of the Criminal Code. The offender was a 58-year-old man and the child a nine-year-old girl, his niece, who was living in the family home. The abuse consisted of three separate incidents of digital penetration, ie penetration of the victim's vagina with the offender's fingers. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for persistent sexual abuse of a child is 20 years imprisonment.

(2) Mitigating factors are: digital penetration; no further trouble; first offender; offender's advanced age and medical condition.

(3) Aggravating factors are: large age gap; child's tender age; no consent; threatened victim; physical injury; emotional impact on victim; breach of trust; series of incidents; did not give himself up; no compensation, apology or reconciliation; trial had to be held; no genuine remorse.

(4) A sentence of 10 years was imposed. The pre-sentence period in custody was deducted and two years of the sentence was suspended because of a good pre-sentence report.

Cases cited

The following cases are cited in the judgment:

The State v Ereman Kepas CR No 69 of 2007, 21.03.07
The State v Kikia Solowet CR No 196 of 2006, 16.08.07

SENTENCE

This is a judgment on sentence for the crime of persistent sexual abuse of a child.

Counsel

F Popeu, for the State
O Oiveka, for the offender

24th August, 2007

1. CANNINGS J: This is a decision on sentence for a man convicted after trial of one count of persistent sexual abuse of a child, contrary to Section 229D of the Criminal Code. The offender, Kikia Solowet, was about 58 years old when the offence was committed. The child, his niece, was nine years old. She was living with him in the family home at Buvussi, near Kimbe, when the offence was committed over a three-week period in late 2005. The abuse was committed while the offender's wife was away. It consisted of three separate incidents of digital penetration, ie penetration of the victim's vagina with the offender's fingers. A medical report admitted into evidence at the trial showed that the victim suffered forceful and multiple penetrations resulting in a vaginal infection. Further details of the offence are in the written judgment on verdict in The State v Kikia Solowet CR No 196 of 2006, 16.08.07.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I apologise for what I have done and ask for a non-custodial sentence so that I can pay compensation for what I have done. I am old and it is hard for me to look after my blocks. That is why I need a non-custodial sentence.

PRE-SENTENCE REPORT

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

KIKIA SOLOWET: approximately 60.

Residence: Section 9, Block 1298, Buvussi.
Family background: parents from Morobe Province – last born in family of three.
Marital status: married with seven grown up children – has grand children also.
Education: no formal education.
Employment: never been formally employed.
Health: Asthma, pain from rib area however no evidence to substantiate medical condition.
Financial status: Money from sale of oil palm and assistance from brother Maka Solowet.
Plans: go back to home province (Morobe) after settling problem with victim.
Victim's attitude: None.
Offender's family's attitude: dispute in immediate family – not supportive – would rather see offender go to jail – brother Maka says offender has been falsely accused.
Attitude of community: Church claims offender received head injuries and may be mentally ill – offender does not have a bad reputation – hardworking and committed.
Assessment: not a threat to community.
Recommendation: suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mr Oiveka highlighted the offender's prior good character and the fact that he is a first offender. The pre-sentence report shows that he is not considered a threat to the community and justifies a partly-suspended sentence. The offence was committed out of character. There is a rift in the family and sending him to jail for a long period will not solve anything.

SUBMISSIONS BY THE STATE

6. Mr Popeu, for the State, submitted that the sentence must reflect the serious abuse of trust that occurred. The victim was the offender's adopted daughter. He took advantage of the absence of his wife. His apology was a general one only, not an expression of genuine remorse.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what should the head sentence be?
• 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?

8. The sentencing regime under Section 229D (persistent sexual abuse of a child) of the Criminal Code, which distinguishes between:

• persistent sexual abuse under Section 229D(1) (consisting of commission of two or more child sex offences other than sexual penetration) for which the maximum penalty is 15 years imprisonment; and
  
• persistent sexual abuse under Section 229D(6) (consisting of commission of two or more child sex offences, at least one of which involved an act of penetration) for which the maximum penalty is life imprisonment.
  

9. In the present case the offender was indicted and convicted under Section 229D(6). The maximum sentence is thus life imprisonment. However, the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. The Supreme Court is yet to give detailed sentencing guidelines for this sort of offence but given that the maximum penalty is life imprisonment I consider a starting point of 20 years imprisonment would therefore be appropriate.

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

11. I have dealt with only one other case involving the offence of persistent sexual abuse, The State v Ereman Kepas CR No 69 of 2007, 21.03.07. It was a case heard in Bialla, WNB. The offender was a similar age to the offender in the present case. The victim was a ten year old girl, his adopted daughter. The abuse consisted of five instances of sexual touching constituted by the offender rubbing his penis on the girl's vagina and ejaculating and one instance of penetration of the girl's vagina with his penis, which resulted in the girl suffering physical injuries and being hospitalised. I regarded the offender's advanced age and his poor medical condition as major mitigating factors and sentenced him to 12 years imprisonment.

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 victim? No – the offender was aged 58 and the victim nine, an age gap of 49 years.
   
2. Is the complainant not far under the age of 16 years? No, she was only nine years old.
   
3. Was there consent? No, the girl was at an age when she should be deemed incapable of consenting. Furthermore, the medical report was evidence of forced penetration.
   
4. Was the form of abuse 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? No. The victim gave evidence that he showed her the axe when he committed the abuse and that evidence was accepted by the court.
   
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the complainant? No. The victim suffered vaginal infection.
   
7. Did the incident have only a minimal impact on the child? No, in the absence of evidence to the contrary it must be presumed that the emotional impact of continued sexual abuse on a child of a tender age is severe and long running.
   
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? No – the offender was her uncle. The victim was living in the offender's home and regarded as an adopted daughter.
   
9. Was it an isolated incident? No. There were three separate incidents over a three-week period.
   
10. Did the offender give himself up? No.
    
11. Did the offender cooperate with the police in their investigations? Neutral. He attended for an interview but denied the allegations.
    
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? No.
    
15. Has the offender genuinely expressed remorse? No. The offender, in allocutus, apologised to the court, not to the victim or her biological parents. The court was left with the impression that the offender still does not appreciate the gravity of his crime.
    
16. Is this his first offence? Yes.
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes, he is, by PNG standards, an older aged man whose health is poor.
    

13. There are four mitigating factors compared to twelve aggravating factors, which gives an indication of the very serious nature of the offence that was committed. If the offender were to be sentenced disregarding his advanced age and his medical condition, the sentence would have to be above the starting point of 20 years, ie in the range of 25 to 30 years imprisonment. I think many people would say that this is what the offender deserves. However, I am going to regard the offender's advanced age and his medical condition as major mitigating factors. As I said in Ereman Kepas's case I do not feel that I would be dispensing justice by subjecting a 60-year-old man to a 25-year sentence. It would leave him little prospect but to die in prison as an old and ill man. The sentence I impose is 10 years imprisonment.

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

14. 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 one month.

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

15. The pre-sentence report favours suspension of part of the sentence. The offender is well regarded in the Buvussi community. I suspend two years of the sentence on the following conditions.

(a) must prior to release from custody arrange payment of K1,000.00 compensation to the victim;

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

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

(d) 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;

(e) 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;

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

(g) must not consume alcohol or drugs;

(h) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim's family;

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

(j) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

16. Kikia Solowet, having been convicted of the crime of persistent sexual abuse of a child, is sentenced as follows:

Sentenced accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender