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State v Bani [2008] PGNC 267; N3863 (19 September 2008)

N3863

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1515 of 2006

THE STATE

v

ABBA BANI

Tabubil: Kandakasi, J.
2008: 5th, 18th And 19th September

DECISION ON SENTENCE

CRIMINAL LAW –Sentence – Sexual penetration of a girl under 16 years – Consensual sexual intercourse – Age disparity – Lost of virginity and lacerations and abrasions to victim''s vaginal and genital areas – Conviction after trial – 8 years sentence imposed – Section 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.
Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730.
The State v. Danny Makao (2005) N2996.

Counsel:

D. Mark, for the State.
M. Norum, for the Prisoner.

19th September, 2008

1. KANDAKASI J: Abba Bani pleaded not guilty to a charge of sexual penetration of child under the age of 16 years, contrary to s.229A (1) of the Criminal Code. After a trial, the Court found him guilty and convicted him. The matter is now before the Court for sentencing.

2. Both parties agreed that the Court should be guided by its decision in the matter of The State v.Eddie Trosty.[1] In that case, the Court imposed a sentence of 6 years in a case similar to the present but on a guilty plea with no physical injuries to the victim who was the prisoner''s long time girlfriend. Mr. Norum, lawyer for Abba argues for a sentence between 4 and 8 years. On the other hand, the State through Mr. Mark argues for a sentence up to 10 years.
   

Issue for Determination

3. Hence, the issue for the Court to decide is whether Abba''s sentence should be up to a maximum of 10 years or should it be lesser than that?
   

The Relevant Considerations

4. The issue before the Court can only be determined by reference to the relevant facts of the case, Abba''s personal and family backgrounds, the factors operating, both for and against him and the kinds of sentences imposed in similar cases.
   

The Relevant Facts

5. The first matter the Court turns to is a consideration of the relevant facts, as found by the Court in its decision on verdict. Abba and his victim and their respective families and or relatives live in the same area in the small Township of Kiunga. Hence, they know each other well and it is clear that the victim and Abba had a boyfriend and girlfriend relationship evidenced by the fact that, they had a consensual sexual affair. Abba was 19 years old whilst his victim was 12 years old at the time of the offence. So there was age disparity of 7 years.
   
6. On 23rd April 2005, the victim went to the nearby local market. On the way, she met Abba and they entered into a conversation and walked toward the Kiunga Hospital area and went behind the incinerator. There, they continued their conversation, while Abba consumed some home made alcoholic brew. Eventually, Abba took out a roll of marijuana and asked his victim to light it and told her to take two puffs, which she did and passed it back to Abba.
   
7. Soon upon puffing the roll of marijuana twice, the victim had some strange sensation with pain in her abdomen area. Meanwhile, Abba smoked his marijuana and after he finished it, he went and took off his victim and his clothes and then they had consensual sexual intercourse. In the process, the victim felt pain and pushed Abba away. Later, however, Abba went on top of the victim and recommenced having consensual sexually intercourse by penetrating her vagina by his penis until he ejaculated. As the victim was a virgin, Abba broke her hymen and she lost her virginity to him. Medical evidence confirms sexual penetration and tearing of the hymen with lacerations and abrasions to the victim''s virginal and genital areas. After their sexual intercourse, Abba and his victim went their separate ways. The victim ended up in her uncle''s place, where she was beaten up by her mother in a bid to find out what she had been up to during the night of the sexual intercourse.

The Offence and Sentencing Trend

5. Bearing the above facts in mind, we now turn to a consideration of the offence and its sentencing trend and tariffs. Section 229A (1) of the Criminal Code creates and prescribes the offence of sexual penetration of a child under 16 years of age 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. This was an improvement and upgrading in terms of the penalty by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 by way of an amendment to the then existing law. The law prior to the amendment, prescribed a maximum penalty of 5 years. The amendment thus increased the penalty to 25 years and made it to apply irrespective of the sex of the victim.

7. In a number of cases, as in The State v. Eddie Trosty,[2] which is the case both lawyers have referred this Court to, held that, in view of the reasons for the amendments to the law, sentences for the offence of sexual penetration of girls under the age of 16 must be beyond the maximum prescribed under the old law. The Court then decided to impose a sentence of 6 years on a guilty plea. The prisoner and his victim had a boyfriend and girlfriend relationship. The victim was 15 years old whilst the prisoner was 21 years old at the time of the offence. They had several consensual sexual intercourses before. The prisoner did not cause any injuries to the victim. He also did not introduce the victim to any sexually transmitted disease or made her pregnant. These factors influenced the Court to arrive at the sentence of 6 years.

8. However, earlier on, in The State v. Peter Lare,[3] which is a case, Mr. Norum also referred to in his submissions; the Court 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, the Court noted that, the:
   

""... 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 the 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. Another relevant case which was also referred to by Mr. Norum in his submissions is The State v. Kemai Lumou.[4] There, the Court had regard to the sentence and the particular circumstances in which the prisoner committed the offence in the above case and then imposed a sentence of 17 years. In the Kemai Lumou case, the Court convicted the prisoner after a trial. The facts disclosed a rape of a niece by an uncle using a bush knife against the victim to threaten and rape her. The victim was much younger than the offender was. Despite this, the State charged him with sexual penetration and not rape.

11. Further, the Court notes that, sometime later, Mr. Justice Lay had regard to the decision in The State v. Peter Lare,[5] and 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.[6] From the head note to that case, I note that, the defendant was convicted on his guilty plea to one count of sexual touching of a child under 12 years in 1998, one count of sexual penetration of a child under 12 years in 1998, two counts of sexual penetration of a child under 16 years, in 2000 and another one in 2003, on unspecified dates. The prisoner committed these offences in breach of an existing relationship of trust. Clearly, the charges arose out of a pattern of sexual abuse of the victim over a period of 6 years. The victim became pregnant and bore a son before she reached age 16. Due to her pregnancy, the victim''s schooling got terminated prematurely.

12. Furthermore, this Court notes that, Cannings J, in his judgment in The State v. John Ritsi Kutetoa,[7] cited the judgments in The State v. Peter Lare,[8] and The State v. Kemai Lumou[9] and imposed a sentence of 17 years. There, the prisoner got his stepdaughter into a room in their house, where he sexually penetrated her. The victim was about 11 years old at the time. There was a relationship of trust being a stepfather and stepdaughter which the prisoner breached.

13. Subsequently, Cannings J., in The State v Paul Nelson[10], gave an excellent summation and a comparable table of nearly all of the cases on sexual penetration under s. 229A of the Code thus far dealt with by the Court since the amendments in 2002. That summation shows that, sentences have ranged from as low as 2 years up to the highest at 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 factors such as, serious injuries, threats or actual use of violence to secure the commission of the offence, or the victim had been exposed to sexually transmitted deceases or had become pregnant.

Sentence in Present Case

14. Duly noting the foregoing sentencing trends and tariffs, the Court needs to take into account and weigh both the factors operating for and against Abba, to arrive at an appropriate sentence for him. Considering first the factors in his favour, the Court notes that, he is a first time offender. That means, until the commission of the offence for which he is in Court, he has been a good law abiding citizen. All of that has now been tarnished by his own conduct.

16. Secondly, the Court notes in his favour that, he did not use any weapon such as a bush knife or anything like that to commit the offence, as has been the case in some of the earlier cases. Similarly the Court notes that he did not commit the offence in breach of an existing trust, as has been the case in some of the earlier cases. But this Court notes that, these are not relevant factors for the purposes of the offence with which he has been charged and convicted with. All that needs to be established for the purposes of the offence is an act of sexual penetration of a child under the age of 16 years. Where any of the other factors exist, the relevant and appropriate charges should be rape or under any of the other subsections under s.229A.
    
17. It is relevant however, to note as the third factor in his favor is the fact that, he has not infected the victim with any sexually transmitted decease or impregnated her.
    
18. Finally, in his favor, the Court notes that, he did say sorry in his allocatus for what he has done, appreciating that it was wrong. He offered to pay compensation if the Court was willing to so order. Usually, a genuine expression of remorse operates in favour of an offender. Where an offender has taken steps toward showing his remorse by paying compensation or taking such other steps to demonstrate in a tangible way his or her remorse and freely and readily admits guilt that would operate in the offender''s mitigation. In his case, however, he claims that he committed the offence due to peer pressure but that admission came after the Court had found him guilty following a trial. Given that, the Court will have no or little regard to his belated expression of remorse.
    

18. Turning now to the factors against him, the Court firstly notes that, he engaged in an act of sexual penetration of a child who was 7 years younger. Although the Court notes that, the age disparity may not have been significant as was the case in The State v. Peter Lare[11] case and others, he was nevertheless the older of the two and would have known better. Yet he proceeded to commit the offence against his victim.

19. Secondly, the Court notes that, he denied the charge against him. That forced his victim and her mother to come and testify against him in the presence of strangers. In that way he forced the victim to unnecessarily come into Court and tell it all. These meant extra costs to the State and time for the Court to hear and come to a decision on his guilt, without good cause. He readily accepted the guilty verdict and sought to blame his commission of the offence on peer pressure without laying any factual foundation for that by appropriate evidence.

19. Thirdly, the Court notes against him that, he caused some injuries, loss and suffering to the victim. He caused her some lacerations and abrasions to her vaginal and genital areas and more importantly took her virginity away. This might operate against her, in her adult married life. That is a damage that no one can repair in any manner or form particularly in our society. Hence that is a loss she will have to live with.
    
20. Finally, the Court notes and repeats its earlier comments in relation to his expression of remorse.
    
22. Weighing carefully the factors for and against him, the Court finds that the factors against Abba outweigh those in his favor. Neverthelss, they do not bring his case any closer to the case of The State v. Peter Lare,[12] and The State v. Thomas Angup[13] or the others. The Court instead accepts his lawyer and that of the State''s lawyers'' submission that, his case comes closeer to the case of The State v. Eddie Trosty[14] but not exactly because there a few factors that clearly distinguishes his case from that case.
    
23. The first factor that clearly sets Abba''s case apart from the above case is the fact that, in that case, it was a case of guilty plea, whereas in Abba''s case, he pleaded not guilty. That forced a trial which meant more costs and time to the State and the Court. Secondly, he caused some loss and injuries to the victim, unlike in the case cited. Given these factors, the Court accepts the State''s submission that, Abba''s sentence have to be beyond the sentence in The State v. Eddie Trosty.[15] His lawyer''s submission even acknowledges the need for such a sentence, in terms of his submission for a sentence between 4 and 8 years.
    
24. In all of the circumstances, and in particular considering the foregoing discussions, this Court is of the view that, a sentence of 8 years is appropriate and imposes that sentence against Abba. Of that sentence, the Court orders a deduction of the period he has already spent in custody whist awaiting his trial and later his sentence.
    
25. The Court has also given serious consideration to Abba''s plea for a suspension of the whole or part of his sentence in view of his family and personal background and needs as outlined by himself in his allocutus and his lawyer''s submissions. This includes amongst other''s his educational need and his mother''s need of support from him. The Court has decided against any suspension of sentence for a number of reasons. Firstly, there is no pre-sentence report supporting the imposition of such a sentence. The Supreme Court has made it clear that there should be no suspension of sentence unless there is a well balanced pre-sentence report supporting such a sentence particularly for a person below age 19 years. The relevant cases on point are the cases of Public Prosecutor v. Don Hale[16] and Edmund Gima v. The State & Siune Arnold v. The State.[17]
    
26. Secondly, the law is very clear that, the personal and family backgrounds and needs should have no bearing in sentencing an offender. This proceeds on the basis that, an offender should carefully consider his family and personal background and needs before committing an offence. This Court restated that position in the case of The State v. Danny Makao (2005) N2996, in this way:
    

""These factors are however, of no consequence has any adverse impact your sentence might have against your family, is the very consequence of your own actions. As I noted in a number of cases already as in The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082, the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 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 offender''s personal background including the needs of his family once 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.""

_________________________

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

^[1] (2004) N2681.
^[2] Supra note 1.
^[3] (20/05/04) N2557.
^[4] (23/09/04) N2684.
^[5] Supra note 3.
^[6] (21/04/05) N2830.
^[7] (22/03/05) N2814.
^[8] Supra note 3.
^[9] Supra note 4.
^[10] (25/05/05) N2844.
^[11] Supra note 3.
^[12] Supra note 3.
^[13] Supra note 6.
^[14] Supra note 1.
^[15] Ibid.
^[16] (1998) SC 564.
^[17] (03/10/03) SC730.