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State v Konda [2014] PGNC 171; N5780 (22 September 2014)

N5780

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1016 0F 2011

THE STATE

V

STANLEY KONDA

Kimbe: Cannings J
2014: 6, 21, 22 August

CRIMINAL LAW – sentence – two counts of engaging in sexual penetration with children under the age of 16 years – circumstances of aggravation – children under the age of 12 years – existing relationship of trust – Criminal Code, Section 229A – guilty plea.

A mature aged man pleaded guilty to two counts of engaging in an act of sexual penetration with a child under the age of 16 years. This is the judgment on sentence.

Held:

(1) The maximum penalty for engaging in an act of sexual penetration with a child under the age of 16 in circumstances of aggravation (the child being under the age of 12 years) is life imprisonment.

(2) A starting point of 10 years imprisonment was used.

(3) Mitigating factors for each offence: the offender acted alone; he used no weapon or aggravated violence; it was an isolated incident; he has caused no further trouble to the victims; he is a first-time offender; no permanent physical injury to the victims; no sexually transmitted disease passed on; digital penetration.

(4) Aggravating factors for each offence: the large age gap (12 years) between the offender and the victims; the tender age of the victims; there was no consent; the breach of trust was extreme; broke bail and had to be arrested.

(5) A sentence of seven years imprisonment was imposed for each offence, to be served cumulatively, a potential total of 14 years imprisonment, which was reduced to ten years under the totality principle. The pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State (2006) SC890
The State v Arnold Kulami (No 2) (2009) N4473
The State v Biason Benson Samson (2005) N2799
The State v George Taunde (2005) N2807
The State v John Ritsi Kutetoa (2005) N2814
The State v Pennias Mokei (No 2) (2004) N2635
The State v Titus Soumi (2005) N2809
The State v Willie Dominic (2005) N2938

SENTENCE

The offender was sentenced for two counts of engaging in an act of sexual penetration with a child under the age of 16 years.

Counsel

F K Popeu, for the State
D Kari, for the accused

22nd August, 2014

1. CANNINGS J: This is a decision on the sentence for Stanley Konda who pleaded guilty to two counts of engaging in an act of sexual penetration with children under the age of 16 years, contrary to Section 229A(1) of the Criminal Code, in circumstances of aggravation in that the children were under the age of 12 years.

2. The offences were committed at Kapore, West New Britain, between 10.00 am and 1.00 pm on 6 July 2011. The offender followed two 8-year-old girls, T and M, who he knew, to the garden. He pushed the girl T to the ground and then pushed one of his fingers into her vagina. From the garden he took the girls back to their house. He told them to play with him, which they did. They were climbing over him and while they did that, he pushed one of his fingers into T's vagina (again) and also into M's vagina.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender said:

I am a first time offender. I have agreed with the victims' relatives to sort out this problem through payment of compensation, in addition to the K700.00 I have already paid. I apologise for what I have done and promise that I will never come before the court again.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty, he is entitled to benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). Here there are none. The offender made no admissions in his record of interview.

PRE-SENTENCE REPORT

6. The court was presented with a report prepared by the Kimbe office of the Community Based Corrections Service.

Personal details of Stanley Konda

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Kari asked me to place a lot of weight on the guilty plea and the expression of remorse; that the offender has no prior conviction and is considered suitable for probation. This was a case of digital penetration, not penile penetration (which would be much more serious). There should be at least a partial suspension of the sentence.

SUBMISSIONS BY THE STATE

8. Mr Popeu stressed that this is a very serious crime in view of tender age of the victims. A deterrent penalty is required; 10 to 12 years should be imposed for each offence, and the sentences should be served cumulatively.

DECISION MAKING PROCESS

9. The following process will apply:

• step 1: what is the maximum penalty for each offence?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?
• step 9: what should the place of detention be?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. Engaging in an act of sexual penetration with a child under the age of 16 years, in circumstances of aggravation (the child was under the age of 12 years): Criminal Code, Sections 229A(1) and (2): the maximum is life imprisonment. I have discretion, of course, to impose less than the maximum term and suspend part or all of the sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS THE STARTING POINT FOR EACH OFFENCE?

11. The Supreme Court has yet to give sentencing guidelines for these sorts of offences but based on sentences that have been imposed by the National Court and some sentences that have been reviewed by the Supreme Court, I will use a starting point of 10 years.

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

SENTENCES FOR ENGAGING IN SEXUAL PENETRATION WITH CHILD

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

12. I refer to the list of sentencing considerations set out in The State v Arnold Kulami (No 2) (2009) N4473 and highlight the following mitigating and aggravating factors.

13. 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 victims;
• he is a first-time offender;
• no permanent physical injury to the victims;
• no sexually transmitted disease passed on;
• digital penetration.
  

14. Aggravating factors:

• the large age gap (12 years) between the offender and the victims;
• the tender age of the victims;
• there was no consent;
• the breach of trust was extreme;
• broke bail and had to be arrested.
  

15. There are more mitigating factors than aggravating factors. However, it is not the comparative number of mitigating and aggravating factors that solely determines the sentence. It is the strength of each factor that is crucial. I impose a head sentence of seven years imprisonment for each offence. The total potential sentence the offender is facing is:

7 years + 7 years = 14 years.

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

16. The question is whether the sentences should be served concurrently (at the same time) or cumulatively (sentences are added together). In Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 the Supreme Court held that in deciding whether sentences should be made concurrent or cumulative the following principles apply:

(i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

(ii) Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.

(iii) When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

17. There were two separate victims, therefore the sentences should be served cumulatively.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

18. I now look at the total sentence the offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence. I consider that 14 years would be excessive. I will reduce the total sentence to 10 years; five years for each offence.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. 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 two years, one month.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20. No. The pre-sentence report does not warrant suspension. The attitude of the victims and their families must be taken into account.

ORDER

21. Stanley Konda, having been convicted of two counts 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 under Section 229A(2) of the Criminal Code in that the child was under the age of 12 years, is sentenced as follows:

Sentenced accordingly.
_________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender