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State v Noel [2012] PGNC 20; N4664 (10 May 2012)

N4664

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 381 0F 2011

THE STATE

V

OLWIN NOEL

Madang: Cannings J
2012: 15 March, 12 April, 10 May

CRIMINAL LAW – sentencing – engaging in act of sexual penetration with a child under the age of 16 years in circumstances of aggravation – guilty plea – offender a 21-year-old man; victim, a 9-year-old boy – Criminal Code, Section 229A(1),(2), (3) – sentence of 9 years.

The offender, a young man, pleaded guilty to sexually penetrating a nine-year-old boy, a close relative, in a rural area close to their village. The victim's parents wanted to see the offender punished but were prepared to accept compensation and engage in customary reconciliation with the offender. This is the judgment on sentence.

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 permanent physical injury to the victim; no STD passed on; isolated incident; no further trouble; first-time offender; pleaded guilty; expressed remorse; willingness to compensate and reconcile.

(3) Aggravating factors are: large age gap; tender age of victim; no consent.

(4) A sentence of 9 years was imposed. The pre-sentence period in custody was deducted and, because of the willingness of the offender's family and victim's family, who are related, to seriously attempt a customary reconciliation of the matter, six years of the sentence was suspended subject to payment of K4,000.00 compensation and a formal reconciliation, which is to occur within six months after release from custody.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
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

J Morog & S Collins, for the State
W Dogura & G Peu, for the offender

10 May, 2012

1. CANNINGS J: This is the decision on sentence for a 22-year-old man, Olwin Noel, who has pleaded guilty to engaging in an act of sexual penetration with a child under the age of 16 years, a 9-year-old boy, "T", his nephew. The offence was committed near their village, Aouns, in the Aiome area of Middle Ramu District, Madang Province, on 6 January 2011. The offender met the victim, who was with some other young boys, in the bush near a river. He told the other boys to go in a different direction and took the victim along another track. When they were alone, he grabbed the victim, forcefully removed his clothes, then penetrated his anus with his penis. He told the victim not to tell anybody what happened but later that day the victim experienced anal pain and had difficulty sleeping and the next day he reported the incident to his mother.

2. The offender has been 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.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. 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 say sorry to the victim and his family and to the court. I ask for the mercy of the court.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). I will take into account that there was no aggravated physical violence used in the assault on the victim. The medical evidence (the boy was examined four days later at Aiome Health Centre) shows that he suffered no permanent injury. No sexually transmitted disease was passed on to the victim.

PRE-SENTENCE REPORT

6. Olwin Noel comes from Aouns village and was raised in the village. He lives with his parents and he is the eldest of four children. He was educated to grade 10 at Aiome High School. He has been living in the village since completing his education and earns an income from the sale of cash crops such as cocoa and betel nut. He is a member of the Anglican Church. His health is sound. He is strongly supported by his parents despite what he has done. They acknowledge that he has committed a very serious offence against a close relative but they want the chance to, in some way, solve the problem by customary reconciliation with the victim and his family. They say they will pay compensation of K4,000.00 if given time. The victim's family want to see the offender punished for the terrible thing he did. The victim's mother is very concerned about the psychological impact of the ordeal on her son. Nevertheless they are willing to attempt reconciliation subject to payment of K5,000.00 cash and at least one pig. The report concludes that the offender is an intelligent young man, he is educated and literate and understands the gravity of his crime. He is an introvert. He keeps to himself much of the time. He is not known to have done anything of this sort before. He has led a peaceful life until commission of the offence. He is considered suitable for probation. A suspended sentence subject to strict conditions including payment of compensation of K5,000.00 is recommended.

SUBMISSIONS BY DEFENCE COUNSEL

7. Ms Peu highlighted a number of mitigating factors: the victim, although of tender age, did not sustain serious physical injuries; the offender has no prior convictions; he pleaded guilty; it was an isolated incident; he co-operated with police. Eight to 12 years imprisonment would be an appropriate sentence, some of which should be suspended.

SUBMISSIONS BY THE STATE

8. Mr Collins submitted that a sentence of at least 12 years was required. There has to date been no effective reconciliation. He referred to the similar case of The State v Charles Rome CR No 502/2007, 13.07.07 where a male offender aged in his 20s pleaded guilty to sexually penetrating a boy aged 10 and the sentence of 12 years was imposed.

DECISION MAKING PROCESS

9. 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?

10. There were two circumstances of aggravation charged in the indictment: the child victim 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?

11. 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?

12. I will summarise in the following table some sentences I have imposed for offences of this nature where the victim has been less than 12 years old.

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

STEP 4: WHAT IS THE HEAD SENTENCE?

13. 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.

14. 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;
• no permanent physical injury to the victim;
• no STD passed on;
• he has, through his family's representations, shown a genuine willingness to compensate and reconcile.
  

15. Aggravating factors:

• the large age gap (12 years) between the offender and the victim;
• the tender age of the victim;
• there was no consent;
• the breach of trust was extreme.
  

16. Given the number and strength of the mitigating factors the sentence will be below the starting point. The case is not as serious as those in which sentences of 17 years were imposed. I agree with the prosecutor's submission that, in light of the decision in Rome, a 12-year sentence should be considered. However there are important differences between this case and Rome. In Rome the offender was being sentenced for multiple offences committed against the same victim. The offender came from another province and the victim and his parents had no interest in reconciling with him or accepting compensation. They just wanted him imprisoned in his home province. Here, the pre-sentence report suggests that there is a real prospect of reconciliation. This is a significant mitigating factor. I fix a sentence of nine years.

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

17. 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 1 year, 3 months, 3 weeks.

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

18. The pre-sentence report is generally favourable, and the prospect of reconciliation is real. The fact that the offence was committed within the family and within the village community makes it a very serious crime. But on the other hand because both the offender's family and the victim's family are willing to reconcile, I think the court should provide them with the opportunity for this to happen. So I will suspend a substantial part, six years, of the sentence. That means that the offender will have to spend some more time in custody, which will reinforce the gravity of the crime. Then upon his release from prison he and his family will have six months to pay compensation of K5,000.00 + 1 pig and to reconcile properly and formally with the victim and his family. That will be one of the conditions of the suspended sentence. If it cannot be met, the offender will go back to prison to serve the balance of the sentence.

19. Six years of the sentence will be suspended on condition that the offender:

(a) must appear before the National Court and have the conditions of the sentence fully explained to him before being released from custody;

(b) must report to the Probation Office within three days after the date of release from custody;

(c) must, within six months after the date of release from custody, with his family, participate in a reconciliation ceremony with the victim and his family, supervised and witnessed by the Police, the Village Court and the Probation Office, and:

• pay compensation of K5,000.00 cash + 1 pig + foodstuffs to the victim;
• the victim's family must contribute 5 chickens + foodstuffs;
  

and, within one week after the reconciliation ceremony, the Probation Office shall provide a report of the reconciliation ceremony to the National Court in Madang;

(d) must appear before the National Court at Madang within seven months after the date of release from custody to prove compliance with condition (c);

(e) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

(f) must not leave Madang Province without the written approval of the National Court;

(g) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;

(h) must attend his local Church every weekend for service and worship and submit to counselling;

(i) must report to the Probation Office at Madang as and when required;

(j) must not consume alcohol or drugs;

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

(l) must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody;

(m) if he breaches any one or more of the above conditions, 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

20. Olwin Noel, 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
Public Solicitor: Lawyer for the Offender