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State v Magua [2009] PGNC 290; N3874 (18 June 2009)

N3874

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 76 of 2008

THE STATE

-V-

LARSON MAGUA

Kimbe: Kandakasi, J.
2008: 23rd, 26th – 27th May
2009: 18th June

CRIMINAL LAW –Sentence – Sexual penetration of a girl under 16 years – Guilty plea – First time offender – Some compensation paid but victim receiving none of it – Substantial age difference – Two counts of - No other aggravating factor – Sentence of 16 years imposed - Section 229A(1) of Criminal Code.

Cases cited:

The State v. Eddie Trosty (2004) N2681
The State v. Peter Lare (2004) N2557
The State v. Damien Mangawi (2003) N2419
The State v. Dii Gideon (2002) N2335
The State v Kemai Lumou (2004) N2684
The State v. Thomas Angup (2005) N2830
The State v. John Ritsi Kutetoa (2005) N2814
The State v Paul Nelson (2005) N2844
Stanley Sabiu v. The State (2007) SC866

Counsel:

R. Luman, for the State.
R. Awalua, for the Accused.

18th June, 2008

1. KANDAKASI J: You pleaded guilty to two charges of sexual penetration of a child under the age of 16 years, contrary to s.229A (1) of the Criminal Code. I received both yours and that of the State's submission as on your sentence. You then argued for the sentence of each of the charges to be made concurrent while the State argued for the sentence to be cumulative and reduced to a sentence between 17 and 20 years on the totality principle.

Relevant Issues
2. From the parties' arguments, there are three issues for me to determine. These are: (1) what is an appropriate penalty for the offence you committed? (2) whether the sentences should be made concurrent? and (3) if the sentences are made cumulative, whether they should be reduced on the totality principle?

3. A consideration of the relevant facts or the circumstances in which you committed the offence will help determine most of the issues presented. Also your personal and family backgrounds, the factors operating both in your favour and those against you and the kind of sentences imposed in other similar cases will be of help. Accordingly, I will give consideration to these factors as well as others as they become relevant and necessary. I start that exercise with a consideration of the relevant facts.

Relevant Facts

4. On 22nd April 2007, the victim of your offence (JD) was baby sitting a baby in your house at Kimbe. As she did that, she felt sleepy. So she took the baby to her bed and both went to sleep. At that time, no one else was around. You walked up to where the victim and the baby were sleeping. You got to where the victim was and removed her clothes and went on to have sexual intercourse with the victim. After having satisfied yourself, you told the victim not to tell anyone. Other evidence on file shows that you gave her K20.00 to stop her from reporting you.
   
5. Evidence in the District Court depositions show that you had been making sexual advances and have in fact secured sexual intercourse with the victim both prior to and after 22nd April 2007. By giving the victim money each time you did something against her, you succeeded in causing her not to reveal what you were doing to her. For reasons only known to the State, you have not been charged for any of those instances and have also failed to put those facts to you during your arraignment. The only exception to that is your sexual intercourse of the victim in your poultry house on 1st May 2007. On that occasion, you sent the victim to go and buy cigarettes for you and gave her some money for that. The victim obliged, went and bought cigarettes for you and delivered them to you. As she did, you pushed her into your poultry house, removed her clothes and had sexual intercourse with her. You gave her K10.00 this time and told her not to report you.
   
6. Evidence in the depositions also makes it clear that, the victim was a friend and school mate of your own daughter. Some of your instances of your sexual abuse of the victim were committed when she was together with your own children and after you had either removed the victim from them or after causing your children to leave. For the purposes of sentencing, however, I will take into account only the facts the State alleged, put to you and you pleaded to.

The Offence and Sentencing Trend

7. 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."

8. As I have noted elsewhere aready, 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 offence prior to the amendment prescribed a maximum penalty of 5 years. The amendment thus increased the penalty to 25 years and made it apply irrespective of the sex of the victim.

9. In a number of cases, as in The State v. Eddie Trosty,[1] I 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. I 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. 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 me to arrive at the sentence of 6 years.

10. However, earlier on, in The State v. Peter Lare,[2] I 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. Further, the prisoner infected the victim with a sexually transmitted decease.

11. In arriving at that sentence, I 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".

12. In The State v Kemai Lumou,[3] I had regard to the sentence and the particular circumstances in which the prisoner committed the offence in the above case and what I said there and then imposed a sentence of 17 years. There, the Court convicted the prisoner after a trial. The facts disclosed a rape of a niece by an uncle using a bush knife. The victim was much younger than the offender was. Despite this, the State charged him with sexual penetration and not rape.

13. Subsequently, Mr. Justice Lay had regard to my judgment in The State v. Peter Lare,[4] 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.[5] There, the prisoner 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. 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, causing the victim to leave school prematurely.

14. Sometime later, Cannings J in his judgment in The State v. John Ritsi Kutetoa,[6] cited the judgments in The State v. Peter Lare,[7] and The State v Kemai Lumou[8] and imposed a sentence of 17 years. There, the prisoner in breach of a relationship of trust, got his stepdaughter then aged 11 years old, into a room in their house and sexually penetrated her.

15. Later on, Cannings J., in The State v Paul Nelson[9] in my view, 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. The 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.

16. Recently, the Supreme Court in Stanley Sabiu v. The State,[10] upheld a sentence of 17 years I imposed against the appellant in Vanimo. That was in a case, where an adult male took his young 6 years old nephew into a nearby bush and sexually penetrated him. I had regard to most of the cases I have already cited above before arriving at the decision to impose the sentence of 17 years. The Supreme Court did likewise and in the particular facts of the case and upheld my decision on sentence.

Sentence in Your Case

(i) Mitigation factors

17. In order to determine what sentence is appropriate in your case, I need to take into account and weigh both the factors operating for and against you. Considering first the factors in your favour, I note that, your conviction was on your guilty plea. That saved the State the time and money it could have spent on running a trial. It also spared the victim of the shame and trouble you could have put her through to come and testify against you.

18. Secondly, I note that, this is your first ever conviction. That means, until the commission of the offences here, you have been a good law abiding citizen. All of that has now been tarnished by your own senseless conduct against someone you could consider as your own.

19. Thirdly, you did say sorry in your allocatus for what you have done, appreciating that it was wrong. This is consistent with your early admission of guilt and taking steps to appease the wrong you committed. You have paid K1,500 in compensation. You are yet to pay a further K500. The law allows for a mitigation of your sentence on account of customary compensation but, not a total exoneration of the need for you to be punished for the offences you committed.

20. Finally, I note that, you did not use any dangerous weapon such as a gun, bush knife or an axe or anything like that to secure your two acts of sexual intercourses with the victim. The absence of the use of such weapons usually operates in favour of an offender.

(ii) Aggravating Factors

21. Against the above factors in your favour, I note there are some serious factors against you. Firstly, you engaged in two counts of unlawful sexual intercourse of a child. Fortunately, you have not impregnated her or passed on any sexually transmitted disease.

22. Secondly, you were in a position of a de facto trust. The victim was not a stranger. She was from the same community and friend of your own children. She used to come to your place with your own children and at times stayed over with them. This demonstrates, in my view, the victim trusted you and those that were in your home at the relevant times. She also demonstrated to you as an obedient child by doing some of the things you have asked her to do for you, like going and buying cigarettes for you. Instead of respecting and looking after her as one of your own children, if not your own children's friend, you destroyed the trust she had in you when you committed the sexual offences against her. It is clear to me that, you exploited her with your sexual exploitation of her at the highest. The law allows for severe punishment of people who commit offences in breach of trusts vested in them as in your case.

23. Thirdly, I note that, there is a huge age difference between you and your victim. You are over 40 years while your victim was under 16 years at the time of your offence. Of the two of you, you were in a better position to appreciate that, what you set out to do in terms of having the unlawful sexual intercourses were wrong not only legally but morally too. I note that, it is also against your Engan custom to do the kind of things you did. You could have been easily killed, if not, seriously attacked and injured in retaliation. You were fortunate to escape that. That shows that the victim's relatives have decided to let the formal legal system to take its course, which is commendable. This must be taken into account when determining an appropriate sentence for you.

24. Finally, you committed an offence that is prevalent. It is the prevalence of this offence not only in Papua New Guinea but almost the world over that has caused Parliament to amend the law by increasing the penalty from 5 years previously to 25 years now for an offence under s.229A(1). At the higher end however life imprisonment is a penalty for such offences committed in circumstances described in the other subsections as in the case of a breach of trust. This is necessary because children, young girls and women in our society need the protection of everyone in the society. They have been repeatedly violated and treated by some, only as sex objects as if they have no human dignity and a right to life and a right to live in our various societies without fear of sexual predators like you. The courts have followed Parliament's wish and have imposed stiffer penalties compared to what they used to be imposing prior to the change in the law.

25. In addition to the foregoing, I note and take into account your personal background as ably outlined by your lawyer. In summary, I note you originally come from Silim Village in the Kompiam District of Enga Province but have been living here in the West New Britian Province at Section 21. You are about 45 years old and are married with 3 children and you follow the Lutheran Church faith. You are uneducated and unemployed.

Decision
26. I find that a careful consideration of the factors both for and against you, places your case almost on all fours with the cases of Peter Lare and Thomas Angup. There are, however, few significant differences between your case and those two cases. In those cases, the offenders committed multiple acts of unlawful sexual intercourses and where appropriately charged and dealt with. The victim in the first case was infected with a sexually transmitted decease while the victim in the second case became pregnant and delivered a child.

27. Carefully considering all of the foregoing, I am persuaded that, I should impose a sentence lower than the one imposed in the Peter Lare and Thomas Angup cases but not necessarily substantially lower, given the seriousness of the offence and the other aggravating features of your case as we have outlined above. In that context, I also note that, you have been charged with only two instances of sexual penetration and not the others disclosed in the deposition, which were not put to you during your arraignment and the Court took your plea. I will allow myself to be guided by the fact that you have been charged with only two offences and note the other possible instances of sexual exploitation of the victim.

28. The two different offences should each attract a sentence of over 12 years, in the particular circumstance of your case. I am satisfied that, although you committed the offences against the same victim, it was on two different occasions and location. That warrants an imposition of a cumulative sentence. However, having regard to the kind of sentences imposed in similar cases and the need to avoid imposing against you a crushing sentence, I consider a sentence of 16 yeas is appropriate for both of the counts for which you are before this Court having due regard to the principles concerning the questions of cumulative or concurrency of sentences and the totality principles. Accordingly, I impose that sentence against you. Of that, I order a deduction of the period you have already spent in pre-trial and pre-sentence custody. That should leave you with the balance to serve in hard labour. I further order that you serve your sentence in hard labour at the Lakeamata Correction Services. A warrant of commitment specifying the exact periods deducted and the balance of the sentence you must serve shall issue forthwith.
____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

^[1] (10/09/04) N2681.
^[2] (20/05/04) N2557.
^[3] (23/09/04) N2684.
^[4] Supra note 2.
^[5] (21/04/05) N2830.
^[6] (22/03/05) N2814.
^[7] Supra note 2.
^[8] Supra note 3.
^[9] (25/05/05) N2844.
^[10] (2007) SC866.