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State v Jonathan (No 2) [2009] PGNC 210; N3840 (22 December 2009)

N3840

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 457 0F 2009

THE STATE

V

AMOS JONATHAN (NO 2)

Kimbe: Cannings J
2009: 22 October,
15, 16, 22 December

CRIMINAL LAW – sentencing – engaging in act of sexual penetration with a child under the age of 16 years in circumstances of aggravation – sentence after trial – offender a 48-year-old man; victim, a 4-year-old girl – Criminal Code, Section 229A(1) – sentence of 17 years.

A 48-year-old man was found guilty after a trial of engaging in an act of sexual penetration with a child under the age of 16 years, his 4-year-old granddaughter.

Held:

(1) The maximum penalty in this case was life imprisonment and a useful starting point is 20 years imprisonment.

(2) Mitigating factors are: offender acted alone; no weapon or aggravated violence; no STD; isolated incident; no further trouble; first-time offender.

(3) Aggravating factors are: large age gap; tender age of victim; no consent; did not give himself up; no co-operation with police; no reconciliation; did not plead guilty.

(4) A sentence of 17 years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Joe Nawa v The State SCR No 16/2006, 02.03.07
Saperus Yalibakut v The State (2006) SC890
The State v Amos Jonathan (2009) N3764
The State v Arnold Kulami (No 2) CR No 737 of 2007, 26.06.09
The State v Charles Rome CR No 502/2007, 13.07.07
The State v David Kisiluvi Buso CR No 310 of 2003, 17.02.09
The State v Francis Guandi Borie CR No 289/2007, 16.10.07
The State v John Ritsi Kutetoa (2005) N2814
The State v Kolton Duen Songones CR No 778/2007, 22.11.07
The State v Paul Gule CR No 686/2006, 24.08.07
The State v Sawan Raumo CR No 876/2007, 18.09.07
The State v Timothy Bipi (2009) N3608

SENTENCE

This is a judgment on sentence for an offence under Criminal Code, Section 229A(1): engaging in an act of sexual penetration with a child under the age of 16 years, in circumstances of aggravation.

Counsel

F Popeu, for the State
J Unido, for the offender

SENTENCE

22 December, 2009

1. CANNINGS J: This is the decision on sentence for a 49-year-old man, Amos Jonathan, convicted after trial of engaging in an act of sexual penetration with a child under the age of 16 years, a 4-year-old girl, "J", who is his granddaughter.

2. The offender committed the offence in early April 2008 at his house at the Hargy Mill residential compound at Bialla. He sexually penetrated her by introducing his penis into her vagina. J had been raised by the accused and his wife. She regarded them as her father and mother. They are her biological grandparents.

3. By the time of the trial, which commenced in Bialla in May this year, the offender and his wife had had a bitter separation. The offender still maintains that his wife manipulated J into giving false evidence against him. That part of the defence case was rejected and the court found the offender guilty on the strength of the oral evidence of J (who was almost six years old at the time of the trial), the medical evidence (which showed that the child had been vaginally penetrated and had swelling and pain over the vagina) and the circumstantial evidence (which showed that no one other than the offender could have been responsible for what happened to the child).

4. He was convicted of one count of engaging in an act of sexual penetration with a child under the age of 16 years contrary to Section 229A(1) of the Criminal Code in circumstances of aggravation, viz that, under Section 229A(2), the child was under the age of 12 years, and, that, under Section 229A(3), there was an existing relationship of trust, authority or dependency between the accused and the child.

5. Further details of the offence are provided in the decision on verdict (The State v Amos Jonathan (2009) N3764).

ANTECEDENTS

6. The offender has no prior convictions.

ALLOCUTUS

7. 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. He said:

I thank the court for expediting my case. The court has found me guilty of a crime which I did not commit. I swore on the Bible, which contains the word of God. The judgment of Him is always right but sometimes the judgment of the court contains an error; and my case is an example of error.

The medical report on which the court relied to find me guilty was the result of a conspiracy between my wife and the HEO, who is my elder sister’s son. It is a false report.

My granddaughter was encouraged to give false evidence against me. She has been questioned by her mother and told her the truth: that I did nothing to her. My wife bought her ice cream and taught her what to say in court. It was my wife’s idea to get the false medical report and to have it used in evidence against me. My wife has made a series of false allegations against me over the last few years. She has taken me to the Village Court and the District Court and now she has succeeded in the National Court.

I ask the court to review my case and put me on a good behaviour bond or impose a court fine or give me probation or give me a reasonable time in custody.

PRE-SENTENCE REPORT

8. Amos Jonathan comes from Musuagen in the Kubalia area of East Sepik Province. He was raised in Manus and moved to East New Britain where he was educated to grade 10 and then at Sonoma College where he attained a Diploma in Mechanics. He has had regular employment since 1982. He has been employed by Hargy Oil Palms in the Bialla area since 1992 and has a good work record with the company, which appears willing to re-employ him if he is given a non-custodial sentence.

9. He married his wife, Susan, in 1980. They have four biological children. The victim J is their daughter’s child but she had been adopted by Amos and Susan. They had a stable marriage until three or four years ago when serious problems arose due in large part, according to Amos, to his wife committing adultery with other men including two of his work supervisors.

10. Two of Amos’s children (Kalsie, who gave evidence at the trial, and Marilyn, J’s biological mother) still support him and do not want to see their father given a custodial sentence. His wife, Susan, however, wants to see him punished severely and says that she and J and other members of the family would be living in fear of what Amos would do to them if he is not imprisoned. She claims that he had already threatened to kill her.

11. Amos is relatively well-off financially. He had a good job providing regular wage income and he also developed a seven-hectare oil palm block on his wife’s customary land at Rumaili which has supplemented his income. He is a well-regarded member of the Seventh-Day Adventist Church at Bialla. He has no health problems and he does not consume alcohol, chew betel nut or smoke.

12. The report contains no strong recommendation for probation. The report notes – as borne out by the allocutus – that the offender still does not accept responsibility for his actions.

SUBMISSIONS BY DEFENCE COUNSEL

13. Mr Unido highlighted a number of mitigating factors: the victim, although of tender age, did not sustain serious physical injuries; the offender has no prior convictions; it was an isolated incident; he co-operated with police. Twelve years imprisonment would be an appropriate sentence, some of which should be suspended, Mr Unido submitted.

SUBMISSIONS BY THE STATE

14. Mr Popeu, for the State, submitted that a sentence of 17 to 20 years should be imposed, as there was a very serious breach of trust and the offender had pleaded not guilty, necessitating a trial. A suspended sentence would not be appropriate, Mr Popeu submitted.

DECISION MAKING PROCESS

15. 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?

16. There were two circumstances of aggravation charged in the indictment and they were both proven beyond reasonable doubt: the child was under the age of 12 years and there was an existing relationship of trust, authority and dependency between the offender and the child. The maximum penalty is therefore life imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

17. As the maximum penalty is life imprisonment I consider that a useful starting point is 20 years imprisonment.

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

18. I will summarise in table 1 the sentences I have imposed for offences of this nature where the victim has been less than 12 years old. In table 2 two Supreme Court cases are summarised.

TABLE 1: NATIONAL COURT SENTENCES ON SECTION 229A –
CHILD UNDER THE AGE OF 12 YEARS

TABLE 2: SUPREME COURT SENTENCES ON SECTION 229A –
CHILD UNDER THE AGE OF 12 YEARS

STEP 4: WHAT IS THE HEAD SENTENCE?

19. I refer to the list of sentencing considerations set out in The State v Arnold Kulami (No 2) CR No 737 of 2007, 26.06.09 and highlight the following mitigating and aggravating factors.

20. Mitigating factors:

• the offender acted alone;
• he used no weapon or aggravated violence;
• it was an isolated incident;
• he has caused no further trouble to the victim;
• he is a first-time offender;
• he co-operated well with the police;
• he has attended court when required and complied fully with his bail obligations.
  

21. Aggravating factors:

• the large age gap (44 years) between the offender and the victim;
• the tender age of the victim;
• there was no consent;
• the breach of trust was extreme;
• there has been no reconciliation or forgiveness;
• the offender did not plead guilty;
• he has expressed no remorse.
  

22. Given the number and strength of the mitigating and aggravating factors there is some justification for sentencing at the starting point of 20 years. This is certainly not a case that warrants a sentence of only 12 years imprisonment, which was the sentence contended for by the defence counsel.

23. This is a very serious case compared to the cases shown in table 1, given the age of the victim and that the offender did not plead guilty. For the same reasons this is a more serious case than the two Supreme Court cases shown in table 2. A sentence higher than the highest of those sentences (17 years) might therefore be warranted. However, in view of the high level of co-operation that has been displayed by the offender towards the police and the court and the generally favourable pre-sentence report and the similarities between his case and Arnold Kulami’s case I have decided to impose the same sentence: 17 years imprisonment.

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

24. 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 six months and two weeks.

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

25. Though the pre-sentence report is generally favourable, the offender has expressed no remorse and has not attempted to apologise to or reconcile with the victim or her family. There are deep-seated problems within the family and a non-custodial sentence could well make those problems worse. Therefore I will not suspend any part of the sentence.

SENTENCE

26. Amos Jonathan, having been convicted of the crime of engaging in an act of sexual penetration with a child under the age of 16 years contrary to Section 229A(1) of the Criminal Code in circumstances of aggravation, viz that, under Section 229A(2), the child was under the age of 12 years, and, that, under Section 229A(3), there was an existing relationship of trust, authority or dependency between the accused and the child, is sentenced as follows:

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Muromu Lawyers: Lawyers for the offender