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State v Sepo [2013] PGNC 77; N5079 (20 February 2013)

N5079

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO.196 OF 2012

THE STATE

V

JONATHAN SEPO

Kokopo: Lenalia, J.
2013: 11th, 15th 18th & 20th February

CRIMINAL LAW – Sexual offences – Sexual penetration of minor – Aggravations – Under age victim – Age 13 years – Penetration of minor and underage child – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.s.229 (A) (1)

CRIMINAL LAW – Sexual offence – Penetration of child under 16 years – Substantial age differences – No pattern of abuse - Aggravation – Punitive and deterrent sentence called for – Sentence of 5 years appropriate fully suspended with conditions.

Cases cited.

The State-v-Thomas Angup (2004) N2830
The State-v-Peter Lare (2004) N2557
The State-v-Kaminiel Okole (2006) N3052
The State-v-Penias Mokei (No.2) (2004) N2635
The State-v-Kemai Lumou (2004) N2684
The State-v-Eddie Trostie (2004) N2681
The State-v-Biason Benson Samson (2005) N279
The State-v-Titus Soumi (2005) N2809
The State-v-George Taunde (2005) N2807
The State-v-John Ritsi Kutetoa (2005) N2814
The Stat-v-Ndrakum Pu-Uh (2005) N2949
The State-v- Danny Makao (2005) N2996
The State-v-Tiama Esrom (2006) N3054
Stanley Sabiu-v-The State (2007) SC866

Counsel

Mr. L. Rangan, for the State
Mr. G. Kerker, for the Accused

SENTENCE

20th February, 2013

1. LENALIA, J: The prisoner entered a guilty plea to one count of sexual penetration pursuant to s.229A (1) an offence under of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The offence was aggravated by the age of the victim who at the time of the commission of the offence was at the age of 13 years. I quote the whole Section because it carries the message of how serious the offence of sexual penetration of underage girls is and secondly, those provisions provide for the maximum penalty of life imprisonment. The above provision states:

"(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.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life."

Facts

2. When the victim made her statement to the police, she gave an account of what happened to her on 27th October 2011. She was sleeping in her parents' house and when the prisoner came to the house of Anita he saw the victim sleeping. After being to that house he came to where the victim was sleeping and invited her to come to his house to get a betel nut. The victim obeyed and followed the prisoner to his house. She climbed up onto the verandah to the prisoner's house and sat down. He gave her betel nuts and she chewed.

3. While she was sitting on the steps, the prisoner asked her to scratch his back. The victim got up and told the prisoner that, he had children there and he should ask them to scratch his back. He walked into his house and when he returned he lifted the victim up and carried her into his house where he placed her on a mattress and put a blanket over her mouth then sexually penetrated her.

4. The Health Extension Officer at Keravat Rural Hospital who examined the victim a day after the incident said the vagina:

➢ Was open,
➢ Could admit one or two fingers,
➢ There was redness and blood seen on the vulva,
➢ No sperm was seen as she had had a wash prior to being medically examined.

Allocutus

5. In his address on his last say, the prisoner said sorry to the victim and her family. He said sorry to the Almighty God, to the Court and his community. He said, he is married with five children, three of them in school two of whom are in Primary school while one is in Elementary and two have not gone to school because they are small. He asked for leniency on sentence.

6. Mr. Kerker spoke to his written submission and submitted the following mitigations:

➢ The prisoner's expression of remorse.
➢ He pleaded guilty.
➢ His previous good record with police with no prior conviction.
➢ He had paid some compensation of K600.00 wants to pay another K400.00.
➢ That this case was an isolated incident.
➢ His cooperation with the police during the investigations.
➢ He is the first time offender.

7. Counsel submitted that this case is not the worse type case and cited cases supporting his line of argument. Counsel submitted that, on this case there was no threat of violence, no force or intimidation were used and no injuries were sustained makes this case less serious than other cases such as The State-v-Kaminiel Okole (2006) N3052 or the case of The State-v-Thomas Angup (2004) N2830.

8. Mr. Rangan of counsel for the State submitted on the serious nature of the offence of sexual penetration of underage girls. He conceded with the defence counsel that this case is not serious and the court should consider a term of years to be imposed on the prisoner due to the prevalence of this crime and secondly as a means of deterrence to the public.

Pre-Sentence & Means Assessments Reports

9. The court had the privileged of reading the pre-sentence report and the means assessment reports. The prisoner's wife Kellyn Joel Jonathan confirmed that, her husband and she had paid compensation of K600.00 cash from their hard earn money. Such compensation was paid in July 2012. The prisoner and his wife are active members of the PNG Revival Church. The couple had made a further undertaking to pay K400.00 cash as part of the compensation and as a token of remorse for what the prisoner did to the victim.

10. Monica Kasiel, the victim's mother and the victim herself, Roselyn Kasiel were contacted for their comments by the Provincial Community Correction and Rehabilitation Officer Mr. David Simiriong. In the case of the mother, she agreed that on the afternoon of the date of the offence, she was surprised when she heard about the incident.

11. She confirmed the prisoner had paid compensation of K600.00 and handed over cooked food to the victim and her parents and the family members. That he had apologized to the victim and her parents and that they have then reconciled.

12. The victim expressed the effects of what the accused did to her when boys tease her by saying that the accused spoiled her and every time, she is teased, she feels really down-hearted and shame. She further added that the family of the prisoner and her parents and other children live a normal life.

13. A community leader Mr. Joel Michael was contacted who confirmed that in July 2012, the victim's family and the prisoner and his family had reconciliated and the community at Tavilo Plantation and the CCI plantation management and staff were really happy about the reconciliation had between the families of those who were affected.

Application of law and Sentencing Trends

14. The prisoner is charged with one count of sexual penetration against s.229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. At the introduction of the offending proviso, the prisoner heard the court say that the maximum penalty provided for the above offence is 25 years imprisonment.

15. Where the offence is committed with circumstances of aggravations as defined by s.6A (2) (d) of the Act, the prescribed maximum penalty is life imprisonment. Subsections (2) & (3) of s.299A do not apply on the current case. The maximum penalty provided by the Section concerned is 25 years imprisonment. If the offence is committed with aggravation of a victim under the age of 12 years, an offender could be liable to life imprisonment subject to s.19 of the Criminal Code.

16. The offence of sexual abuse of children in this country is very prevalent. In this particular case, the victim was aged 13 years when she was penetrated. The circumstances under which this offence was committed could also amount to rape. This is because, Mrs. Eremah David says in her statement that she saw the prisoner holding on to the victim's shirt and pulled her into the house where sex took place.

17. In this Province alone there is a very significant increase in sexual cases. Nobody knows what would be the reason for such increase. In this case there may be an element of breach of trust involved, because the prisoner is the father of five children.

18. This Court has discretion to impose a term of years below the prescribed maximum of 25 years pursuant to the sentencing discretion given to this Court by s.19 of the Criminal Code.

19. The sentencing trend varies from case to case depending on the circumstances of each case. To illustrate the sentencing trends by the National Court Judges, I refer to a number of cases such as The State-v-Peter Lare (2004) N2557. In that case, the Court imposed a sentence of 20 years. In that case, the prisoner was the 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 parents and relative. Further, the prisoner infected the victim with a sexually transmitted decease.

20. In The State-v-Penias Mokei (No.2) (2004) N2635 Cannings, J. set out certain considerations which should be considered as a guide to sentencing offenders on charges of sexual abuse under the Act. One of the aggravating factors covered in that case is the age difference. On this case, the prisoner was 29 years while Roselyn Kasiel was 13 years on the date when the offence was committed. Other relevant cases of sexual penetration of underage girls under s.229A (1) include cases such as The State-v-Biason Benson Samson (2005) N2799, The State-v-George Taunde (2005) N2807, The State-v-Kemai Lumou (2004) N2684 or the case of The State-v-Titus Soumi (2005) N2809. All those cases were sexual penetration in terms of s.229A (1) by definition of s.6 (a) of the Act.

21. I have considered the sentencing guidelines set out in The State-v-Penias Moke (supra) and in The State-v-John Ritsi Kutetoa (2005) N2814. In the earlier case, Cannings, J: set out nine relevant considerations to consider when sentencing an offender in sexual penetration cases where the offender was sentenced to 15 years. In the latter one the prisoner was imprisoned to 17 years.

22. In The State-v-Tiama Esrom (2006) N3054 the prisoner pleaded guilty to one count of sexual penetration of an underage victim aggravated by an existing relationship of trust, authority and dependency. This Court sentenced him to 12 years imprisonment. In The State-v-Peter Lare (supra), the prisoner was sentenced to 20 years for sexual penetration aggravated by physical violence and a big age difference.

23. In The State-v-Kaminiel Okole (2006) N3052, the prisoner pleaded guilty to two counts of sexual penetration aggravated by abuse of trust and authority which was the third charge. For the first and second counts, he was sentenced to consecutive terms of 17 years. The third sentence of 5 years was ordered to be served concurrently upon the 17 years. Two years were suspended with conditions and he served the balance of 15 years.

24. In The State-v-Penias Mokei (supra) Cannings J suggested some factors to be taken into account when deciding an appropriate sentence for these types of offences. Those factors were adopted by retired Judge, Justice Lay in The State-v-Ndrakum Pu-Uh (2005) N2949.

25. They were also cited by the Supreme Court in the case of Stanley Sabiu-v-The State (2007) SC866. The considerations discussed in the above case are:

1. Is there only a small age difference between the offender and the victim?

2. Is the victim not far under the age of 16 years?

3. Was there consent?

4. Was there only one offender?

5. Did the offender used threatening and not used aggravated physical violence?

6. Did the offender cause physical injury or pass on sexually transmitted disease to the victim?

7. Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship was it a distant one?

8. Was it an isolated incident?

9. Did the offender give himself up after the incident?

10. Did the offender cooperate with the police in their investigation?

11. Has the offender done any thing tangible toward repairing his wrong such as offering compensation for reconciliation with the family of affected victim?

12. Has the offender caused any further trouble to the victim or the victim's family since the incident?

13. Has the offender pleaded guilty?

14. Has the offender genuinely expressed remorse?

15. Is this his first offence?

16. Is the accused a youthful offender or are the circumstances which the court will take and regard as mitigations?

17. Are there any other circumstances of incidents which warrants mitigation of the head sentence?

26. I adopt the relevant questions or factors raised in the above case and apply them to the circumstances of the instant case. There is no need for this Court to answer to the considerations posed above, as I have answered some of the relevant factors which I consider appropriate to the circumstances of the present case.

27. Considerations in favour of the prisoner are:

- The prisoner's guilty plea.
- His cooperation with police.
- His previous good character.
- He had paid compensation prior to coming to court.

28. Aggravating circumstances.

- The age difference when the prisoner was 29 years old and the victim was 13 years.
- Breach of trust, the prisoner is the father and he should know better than the vcitm.

29. In weighing carefully the factors for and against the prisoner, the Court finds that the factors against Jonathan outweigh those in his favor. Nevertheless, they do not bring your case any closer to some of those cases like the case of The State-v-Peter Lare (supra) or that of The State-v-Kaminiel Okole (2006) N3052 or the others. The Court instead accepts your lawyer and that of the State lawyers' submission that, your case comes closer to the case of The State-v-Eddie Trostie (2004) N2681 but not exactly because there a few factors that clearly distinguishes the current prisoner's case from that case.

30. On the prisoner's plea for the Court to be lenient with him on sentence and for the Court to consider the fact that he is a married man with five children, the case of State v Danny Makao (2005) N2996 is discussed. In the case of The State-v- Danny Makao (supra), Justice Kandakasi made the following observations on the personal particulars of the offender in that case:

"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."

31. So in your case, it was a broad daylight sexual penetration of an underage girl. I consider the comments made in the above cases and I am of the view that, this case was not a serious case warranting imposition of the maximum or even a long term imprisonment. I consider the prisoner's guilty plea to this serious charge. I also consider the submissions by the defence counsel on the extenuating circumstances and the aggravating features raised by the prosecuting counsel.

32. I consider that, if the prisoner is sent to jail, he will return home a hard-core criminal. I have considered the contents of the pre-sentence report made by the wife of the prisoner and their community leader.

33. I have also given consideration to the victim and her mother's concession made in relation to the reconciliation made between the victim and her parents and the prisoner and his wife. I am of the view that, in this case a suspended sentence would be an appropriate penalty.

34. I consider the fact that this was an isolated incident. The prisoner is young with a young family. The medical report shows that the victim's private part was open as it could admit insertion of two fingers. There was redness but there were no other signs of injuries.

35. That is beside the point. The prisoner Jonathan Sepo is charged with an isolated incident of sexual penetration of the victim who was under the age of 16 years. I would sentence the prisoner to a term of 5 years. I order that the whole sentence be suspended on the following conditions:

(a) The whole sentence is fully suspended.

(b) He shall keep the peace and be of good behaviour for 2 years from today to 20 February 2015.

(c) He shall pay an amount of K400.00 cash money to the victim and her parents. The terms of Orders (c ) shall be satisfied within three months. The bail money shall be converted into payment of that order.

(d) The prisoner shall not take alcohol within the period of his probation.

(e) The Probation Officer in this Province shall supervise the payment of the compensation and file necessary documents to show that the offender has complied with the compensation order.

____________________________________________________________
The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused.