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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 2 OF 2007
THE STATE
V
JACKLYN BUKA
-Prisoner-
Mt. Hagen: David, J
2007: 8th February & 13th March
CRIMINAL LAW – PRACTICE & PROCEDURE – Sentence – guilty plea – child stealing – factors for consideration – crime committed at campsite – female child in the care of her mother – depriving parents of possession of child –child aged three (3) parents deprived of possession for five (5) days – staling for reward – child returned upon hearing of reward over radio broadcast – two (2) years partial custodial sentence – sections 19 & 361 Criminal Code.
Cases cited
Papua New Guinea Cases
Nil
Overseas Cases
R v. Butler (CA (Qld), CA 196 of 1996, 9th August 1996, Unreported, BC9603669
R v. Dixon (CA (Qld), CA 142 of 1999, 7th July 1999, Unreported, BC9906826
Text cited:
M, J. Shandaha, MP Irwin, P E. Smith & R F Carter, Criminal Law of Queensland, 14th Edition, Lexisa Nexis Butterworths, Australia, 2004
Counsels:
Mr J. Waine for the State
Mr. B. Aipe for the Prisoner
DECISION ON SENTENCE
1. DAVID, J: On 8 February 2007, the State indicted Jacklyn Buka (the Prisoner) of Minimb village in the Western Highlands Province with a charge that on 6 September 2006 at HATI College, Mt. Hagen in Papua New Guinea she fraudulently enticed away one Polina Willie (The victim), a child under the age of fourteen (14) years with intent to deprive Nancy Willie, the victim’s mother, who then had the lawful care of her contrary to s.361 (i)(a) of the Criminal Code (the Code) to which she pleaded guilty. I accepted the plea and convicted the Prisoner of the charge after perusing the depositions of the Mt. Hagen District Court (the depositions) having been satisfied that there was sufficient evidence in the depositions to substantiate the charge.
BRIEF FACTS
2. During the first two (2) weeks of September 2006, the Seventh Day Adventist Church of the Western Highlands Province conducted a crusade at the grounds of the Highlands Agricultural College also known as HATI (the campsite) along the Highlands Highway which is situated near the Kagamuga airport attended by more than 2000 devotees. The victim, then aged three (3) years old, was with her mother camping out with other members of the church at the campsite.
3. At or about 1:30 in the afternoon of Wednesday, 6 September 2006, the victim and her mother returned to the campsite from the Waghi River after doing their laundry and having their wash. The victim was left outside their tent while her mother went in to get changed. It was at that time that the Prisoner, twenty four (24) years old at the time and married for about three (3) months then and who is originally from Minimb village near Mt. Hagen in the Western Highlands Province, but now resident at Kandep Block, Kagamuga went by and took the victim away to her residence with an intention to claim a reward. When the victim’s mother realised that the victim was missing, she raised the alarm and a search was mounted. The crusade was disturbed by the incident. The Organising Committee of the crusade reported the matter to the police and arranged a notice of the missing child to be placed with and broadcast by Eagle FM, a local radio station offering a K 1, 000.00 reward for the safe return of the victim.
4. On Sunday 10 September 2006, the Prisoner’s husband attended the Mt. Hagen Police Station and Eagle FM after hearing the notice of the missing child over the radio to report that the victim was in his custody. The victim’s parents met him at the radio station where it was agreed that they should meet at the campsite the next day being Monday, 11 September 2006, the Prisoner’s husband to bring and release the victim to them to get the reward. The next day, the Prisoner and her husband took the victim to the campsite and met with the victim’s parents with policemen from Kagamuga also in attendance upon the request of the Organising Committee of the crusade to witness the exchange. There was some discussion as to how the victim went missing from the campsite and into the custody of the Prisoner and her husband which resulted in the arrest and detention of the Prisoner’s husband. While in custody, the Prisoner’s husband admitted that it was in fact the Prisoner who had stolen the victim which then led to her arrest and later charged.
THE LAW
5. Section 361 (1) of the Code creates the offence of child stealing and prescribes the penalty which his imprisonment for a term not exceeding seven (7) years subject to s. 19 of the Code. I set out the relevant provision as follows: -
(1) A person who, with intent to deprive a parent or guardian of a child under the age of 14 years, or any other person has the lawful care or charge of such a child, of the possession of the child, or with intent to steal any article on or about the person of any such child –
- (a) forcibly or fraudulently takes or entices away, or detains, the child; or
- (b) receives or harbours the child, knowing it to have been so taken or enticed away or detained,
is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years.
(2) ....................................................................................
(3) ......................................................................................
6. Counsels have not assisted the Court with any local written judgments, the reason they said was that it is rare for persons charged with this offence to be brought before the Court although to their knowledge it is not an uncommon occurrence in the Highlands region. I have also not been able to place my hand on one during my research.
7. The commentary by M. J. Shanahan, M P Irwin, P E. Smith & R F Carter, Criminal Law of Queensland, 14th Edition, Lexis Nexis Butterworths, Australia, 2004(Carter’s) pertaining to s. 363 of the Criminal Code of Queensland, from which s. 361 of the Code is based is invaluable and I will be guided by the comments made there together with some of the cases decided by the Queensland Court of Appeal discussing the provision under discussion. I note that the law in this country is not bound by Australian precedents and the Constitution and the Underlying Law Act 2000 require the principles and rules of the common law of England excluding the common law known as the Royal Prerogative to form part of the underlying law so far as it is appropriate to the circumstances of the country, however, it is useful and instructive to refer to the cases and statements of principles discussing the Queensland equivalent of our provision and apply them here with necessary modification. A child under the age of sixteen (16) years is the aggravating feature in the Queensland version. I also note from my research that the penalty for the offence in Queensland has since been increased substantially from seven (7) years to fourteen (14) years and the cases discussed below relate to the period before the increase.
8. As to the significance or not of the period of intended deprivation, in Carter’s, at paragraph s363.20, the learned authors state that ‘[t]here need not be an intention permanently to deprive the parent of the possession of the child: R v. Powell (1914) 24 Cox CC 229.’ The period of deprivation of the possession of the victim by the parent(s) is a factor to be taken into account when determining sentence.
9. In R v. Butler (CA (Qld), CA 196 of 1996, 9th August 1996, Unreported, BC9603669, the Applicant sought leave to appeal against sentence on a plea on an ex officio indictment for a number of counts involving an eleven (11) year old girl. The Applicant was aged twenty (2) living at home with his parents and an invalid sister with no prior criminal history when he committed the offences which were one (1) count of child stealing, two (2) counts of deprivation of liberty, three (3) counts of indecent dealing with a circumstance of aggravation (child under twelve (12) years old) and three (3) counts of indecent assault with circumstances of aggravation. The Applicant was the manager of junior volleyball at a Y-West Centre, Jubilee at the relevant time and was also the complainant’s volleyball coach at the time when he abducted her from the Centre, took her to his house and made a prisoner for about twenty (20) hours where he sexually abused her. The trial judge imposed a sentence of six (6) years imprisonment for child stealing taking into account factors, such as, there was a degree of premeditation, demonstration of remorse by entering a plea sparing the complainant from the rigours associated with a committal hearing and trial, the need for a heavy deterrent to show that children would be protected through the courts, the distress or trauma experienced, stigma or lasting effects of the unlawful conduct caused by the Applicant upon the complainant, breach of trust, the Applicant’s age, previous good character and stable family life and psychiatric status. The Court of Appeal in finding no error on the part of the trial judge refused the application.
10. In R v. Dixon (CA (Qld), CA 142 of 1999, 7th July 1999, Unreported, BC9906826, the Applicant was convicted of child stealing in that he had forcibly taken away a seven (7) year old girl while she was playing along a footpath in a hopping area in Bundaberg around 7:00 o’clock in the evening with her brother aged ten (10), they having been left by their father briefly. The Applicant drove up to where the girl was playing, got out of his car quickly, grabbed her and forced her into the passenger’s seat for the Applicant’s car while she screamed and struggled, the incident seen by various eye witnesses. Hearing his daughter’s screams and calls for help from his son, the girl’s father came to her aid, punched the Applicant which caused the girl to escape. The Applicant tricked the girl’s father into believing that he had intervened and rescued the girl from an attack by another man and later drove off. The girl’s father luckily took the registration number of the Applicant’s car and police were notified. The Applicant was questioned about the incident four (4) weeks later initially denying the offence and saying he could not recall the incident as he was greatly affected by excessive intake of drugs. The Applicant pleaded guilty upon an ex officio indictment which was taken into account in mitigation of sentence by the trial judge. He had previous prior convictions for minor offences attracting no more than fines. The Applicant sought leave to appeal against a sentence of five (5) years imprisonment which was refused.
ALLOCATUS
11. On allocatus, the Prisoner said sorry to the parents of the victim for what she did, that the victim was returned to her parents and asked the Court to have mercy on her.
ANTECEDENTS
12. The State tendered the Antecedent Report of the Prisoner which is document number 20(b) of the depositions alleging no priors without objection from Mr. Aipe of counsel for the Prisoner.
SUBMISSIONS OF THE PRISONER
13. Mr Aipe urged the Court to take into account the following mitigating factors in favour of the Prisoner:-
14. As to penalty, Mr. Aipe submitted that while the maximum penalty prescribed was seven (7) years imprisonment, the Court had a discretion to impose a lesser sentence under s. 19 of the Code. He suggested that a sentence of two (2) years to be served in light labour was appropriate in this case as the Prisoner was not a threat to the community and would not re-offend as she had learnt a lesson.
15. Mr Aipe referred the Court to an unreported judgement of His Honour, Justice Hinchliffe dealing with a similar type of case where he submitted that he was the counsel for the prisoner and His Honour imposed a sentence of three (3) years. He said he was going to let the Court know of other details of the case including the number of the relevant Court file for purposes of verification, but he has not done so. Therefore, there is nothing to gain from that judgment as the Court cannot just simply rely on counsel’s recollection or knowledge of that case without verification.
16. He submitted that in R v. Weldon (infra), there was an intention to deprive the parents permanently as the child was kept from his parents for a period in excess of ten (10) months whereas in this case it was not. The motive was for reward and therefore the blameworthiness should be lower, he submitted.
17. Mr. Aipe also submitted that having been held in custody for six (6) months since her arrest, the Prisoner has learnt her lesson and will not re-offend. Mr. Aipe has therefore asked that the time spent in custody be deducted from the term of the sentence suggested, the balance of the term should be suspended to be served on probation.
SUBMISSIONS OF THE STATE
18. Mr. Waine of counsel for the State believed that this case was the first of its kind and therefore he would not assist the Court with any sentencing guidelines.
19. However he contended that the action taken by the Prisoner was perpetrated by greed in seeking a reward which was admitted and was a serious matter. The victim who was vulnerable and did not have any idea as to what was happening at the relevant time was likened to and treated as an animal or property by the Prisoner. She was in the care and possession of a complete stranger and only God knows how the victim felt during the whole ordeal or what happened as she has not provided a statement of the incident, he said. Mr Waine also submitted that it was aggravating for the victim to be returned five (5) days after her parents were deprived of the care and custody of her, the trauma and pain suffered by the parents and relatives and her return was attributed to the reward being offered. The prisoner’s own admission also shown that there was conspiracy between the Prisoner and her husband to claim a reward which led to her husband stepping forward to claim the reward. The victim’s detention was not done in good faith.
20. Mr Waine further argued that while there was no evidence at all before the Court, it was possible for the victim to re-commit the crime and it was in the interest of the community of Mt. Hagen and the public generally that a custodial and deterrent sentence should be imposed, this being a first of its kind, to serve was a warning and to stop those like-minded person who intend to commit the crime especially for reward from doing so. Mr Waine agreed with counsel for the Prisoner that a term of two (2) years imprisonment was appropriate and he referred the Court to R. Weldon (CA (Qld), 30th October 1997, BC9706447. That was a case in which the prisoner was charged for abduction of a child under the age of sixteen (16) years under s. 363 A of the Queensland Criminal Code, the Maximum penalty prescribed at the relevant time being two (2) years imprisonment. The maximum penalty according to my research has since been increased to seven (7) years imprisonment. That provision, before it was amended, was similar to s. 2351 of the Code excepted that our provision only applies to girls whereas the Queensland version covers both sexes. In that case, the Queensland Court of Appeal upheld the maximum sentence of two (2) years imprisonment imposed by the trial Court for the prisoner taking a fourteen (14) year old male child out of the custody of his parents who kept him for more than ten (10) months.
FACTORS RELEVANT TO SENTENCE
21. There being no sentencing guidelines that I am aware of set by this Court nor the Supreme Court due to the rarity of cases of the type under discussion coming before the Courts, I will attempt to set out some factors which I consider relevant which I have decided from the submissions of counsel as well as from Carter’s and the cases I have discussed above. These are:-
Generally, it is to be considered as a factor that should be in the Prisoner’s favour.
Generally, it is a factor that goes in the Prisoner’s favour.
The younger the child, the more serious is the offence.
Where this factor is present, the more serous is the offence.
The level of trust between the Prisoner and the victim must be considered. Where there is a high degree of trust involved, the penalty should be greater.
Where violence is used, this should be held against the prisoner. The higher the degree or type of violence employed, the penalty should be greater.
This will favour the Prisoner.
This should favour the Prisoner if there is no effect of that.
APPLICATON OF FACTORS RELEVANT TO SENTENCE
Yes.
Yes.
Three (3) years old at the time.
No, there is no evidence of that.
The Prisoner was a total stranger.
Five (5) days. There was no intention to permanently deprive the parents of the possession of the victim. Gaining a reward was the motive.
No, there is no evidence of that.
I will accept that the Prisoner was remorseful on allocatus.
There is no evidence of that.
SENTENCE
22. Child stealing is a very serious offence as can be seen from the maximum penalty prescribed of seven (7) years. The seriousness and abhorrence expressed by our society of crimes committed against children is reflected in the passing by the Legislature of the Criminal Code (Sexual Offences and Crimes Against Children) Act, No. 27 of 2002 which amended several provisions of the code and the addition of some for the purpose, inter alia, of protecting children from sexual exploitation and abuse. By these amendments, very severe or stronger penalties were introduced and offenders are now exposed to them. The Court is therefore called upon the law to protect children and the need for deterrence cannot be exaggerated.
23. Taking into consideration the principle of no "quantum leap", there being no sentencing tariff for the offence, the Court’s sentencing discretion under s. 19 of the Code, all the circumstances of this case the submissions of counsel, the factors discussed above and the Prisoners antecedents, I consider that this case does not warrant the imposition of the maximum sentence prescribed, but rather a sentence of three (3) years imprisonment in hard labour is appropriate. I sentence the Prisoner accordingly. The time already spent in custody which I compute at six (6) months shall be deducted from the term of the sentence leaving a balance of two (2) years and six (6) months to be served. I also consider that an immediate custodial sentence is called for however, I will suspend two (2) years with strict conditions to apply. In the exercise of my discretion under s.19 of the Code, I make the following orders:-
24. In the event that any one of the conditions is not complied with, then the Prisoner’s probation will be breached and she will be arrested and sent to gaol at Baisu to serve the balance of the term which has been suspended.
Ordered accordingly.
__________________________________
Public Prosector: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner
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