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State v Malken [2015] PGNC 129; N6022 (10 July 2015)

N6022

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1183 OF 2014

THE STATE

V

PAUL MALKEN

Lorengau: Geita J
2015: 8,9,10 July

CRIMINAL LAW – Sentence – Particular offence – Sexual penetration of a girl under 12 years –Victim 8 years at the time, taken into a secluded bush track and sexually penetrated – Bruises and tears in her private parts – No priors –Permanent psychological scar in her life as a result -Trial - S. 229A (1) (2) of the Criminal Code Act.

CRIMINAL LAW – Sentenced to 17 years' imprisonment with hard labour – Probation and or suspended sentence considered inappropriate– Criminal Code, Section 229A (1) (2).

Cases Cited

State v Chris Awin (2001) SCR 55 of 2005 29 June 2008
State v John Ritsi Katetoa (2005) N 2814
State v Klom (2014) N5833
State v Lucas Yovura (2003) N2366
State v Olwin Noel (2012) N4664
State v Peter Lare (2004) N 2557
State v Taulaola Pakai (2010) N4215
State v Thomas Agaup (2005) N2830

Counsel
Mr.Anthony Kupmain, for the State
Ms. Jan-Marie Ainui, for the accused

JUDGMENT ON SENTENCE

10th July, 2015

1. GEITA J: The prisoner has been found guilty of sexually penetrating a child under the age of twelve (12) years with his penis on 3rd July 2014 at Papitalai village, Manus Province. The offence comes under Section 229A (1) (2) of the Criminal Code Act, as amended to date and attracts a maximum penalty of life imprisonment.

The facts

2. The facts as found by this court on the conviction following the trial are these. Between 9am and 10am on that day you met the victim in front of Papitalai Secondary High School Canteen and detoured into an unused secluded bush road or track to go to the sago beating area, a distance of approximately 19 kilometres, where her mother and your sister had gone earlier in the morning. Along the way you forced her into removing her clothes and sexually penetrated her in her vagina and anus. At the time of the incident the victim was 8 years old and attended the local school nearby. After assaulting her sexually you both got dressed and continued on following the bush track and exited onto the main road where her mother and others were waiting. Immediately her mother became suspicious and questioned her when she told her everything that you had done to her. The matter reported to police and the victim also subjected to medical examinations which confirmed disturbances to her private parts.

Allocutus

3. When you were given the opportunity to address the court, after being found guilty you said you were sorry to the court for what you had done and asked to be put on probation. You said you were now worried for your aged mother as your father had already died. You also asked for courts leniency.

Mitigating factors

4. The factors in mitigation are:

a) No prior convictions

b) No weapons used

c) This was a one off incident

d) Expressed remorse

Aggravating factors

5. The factors in aggravation are:

1) Age disparity: victim 8 years, prisoner 24 years

2) Trial - Victim subjected to giving evidence thus reliving the bad experience and trauma she was put though.

3) Victim threatened at the time of the assault

Defence Submissions

6. Your Lawyer told me about your personal particulars and also made submissions on what the appropriate sentence ought to be in your case. In her submissions, on your behalf your lawyer urged Court to consider applying its sentencing discretion under Section 19 of the Criminal Code and argued that a partial sentence be considered. You are 24 years old and come from a family of 9 children with you being the third born in the family. You do not have any formal education and follow the Catholic faith. Furthermore you have been in custody for over twelve months and six days awaiting your trial. Ms Ainui drew the court's attention to two National Court decisions. The first was The State v Olwin Noel (2012) N4664, a decision by Cannings J. In that case a sentence of 9 years was imposed following a guilty plea. The victim a 9 year old boy was sexually assaulted through his anus by an adult male. In the second case of The State v Klom 2014 N5833, a sentence of 11 years for three counts of sexual penetration following a guilty plea. Your lawyer was unable to assist court with cases other than the two guilty plea cases now before me however urged court to be guided by those two cases and impose a sentence of up to 9 years in this case with partial suspension.

Pre Sentence Report

7. None was requested for by defence counsel on your behalf.

State submissions

8. Counsel for the State, Mr Kupmain submitted that the court disregard the prisoners call for probation and his family concerns as they remain meaningless. The offence is very serious. Furthermore no evidence was led to assist court in making findings on the mental state of the prisoner at the time of the crime, whether he was drunk, suffering from substance abuse or such like illnesses. In the absence of those findings, probation was considered inappropriate in this case. Secondly the prisoners call for the welfare of his mother was not genuine. Mr Kupmain submitted that the prisoner should have put his family concerns first before getting himself into this trouble. Thirdly State submitted that the prisoner's remorse during allocutus was self serving and not genuine. He denied the charge throughout investigations until he was found guilty by court.

9. Mr Kupmain drew the court's attention to the following cases which I tabulate hereunder for ease of reference: Sexual penetration of children under 16 years and less.

10. Mr Kupmain made observations in the huge drop in sentencing in similar cases from a high 12-25 years in 2005 to a low 7-9 years in 2014. The court is unable to verify his observations as I am currently on circuit and library resources are hard to come by. Based on the cases he referred to court he submitted that a deterrence sentence be imposed to deter others and the general public for committing similar crimes. He submitted that the prisoner was in his early twenties and the repeat of such behaviour if released on probation was very high. A sentence between 17 to 25 years was considered appropriate, he submitted.

Court Observations

11. The community's attitude was not gauged as there was no pre sentence report available before me. In any event it is generally true that all forms of crimes which go against the moral fabrics of society is abhorred with disdain by any community including the community here in Manus Province. The prevalence and sudden upsurge of sexual crimes against the female population especially young children has brought about the introduction of new laws with very high penalties. I am here referring to the amendments passed in 2002: Sexual Offences and Crimes Against Children Act 2002. Unfortunately you now find yourself victim of the new laws introduced to try and protect women and young girls.

12. Your case involves sexual penetration of a child under 8 years. The victim was no stranger to you. Your exerted some form of pressure or threat when she protested your advances. The victim was taken out on and old unused secluded bush track, a distance of approximately 19 kilometres to her destination. Besides other reasons in following the route taken said to be much shorter in distance, the thought of taking an 8 year old young girl along that secluded, unused bush road is frightening. Her ordeal could have turned nasty or fatal. The young victim was made to come to court and give her evidence and relive her ordeal during trial. The damage done to her will leave a permanent scar throughout her lifetime.

13. Those considerations suggest to me a sentencing range in this case of between 17 and 25 years. I am being urged to take into account that this is your first time in court and you could be regarded as a youthful first offender. Be that it may you have brought it upon yourself and should not expect any leniency or pity from others. I have taken into account your personal background and your family background as told to me by your lawyer and your antecedent report. Your mitigating circumstances are outweighed by your aggravating circumstances. All in all I am of the view that the appropriate sentence in this case, having regard to the circumstances of the offence and the circumstances of the offender, is imprisonment with hard labour for 17 years. Had it not being your first time in court, the sentence considered above would be much high. I have been urged by your lawyer to consider the two cases referred to me however those two cases are distinguished in that they were guilty pleas. In your case your pleaded not guilty.

Court remarks on sentence

14. Your pleas for leniency and your remorse in allocutus do not appear to be genuine in my view. You maintained your innocence all along until you were found guilty by court when the victim was forced to come to court and relive her ordeal by giving evidence. Furthermore the call for your family concerns is flimsy and should not be taken seriously. This is what the courts have said in cases when offenders pray for lenient sentences based on the welfare of their families. In the case of The State v Lucas Yovura (2003) N2366 Kandakasi J had these to say:

"..., it is a little too late to talk about an offender's personal background including the needs of his family concerns once he is 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."

15. The similar sentiments were expressed by Hartshorn J in the case of the State v Taulaola Pakai (2010) N4215:

"An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered."

16. I too share the same views in the two judgments and will adopt and apply the sentiments in this case as they bear a resemblance in your pleas for leniency.

17. I agree with State submissions that this case is not a suitable one for either a suspended sentence or for probation. You are a single man in the prime of your age, an age grouping normally considered to be active in their sexual lives. I also agree with Mr Kupmain that to have you released into the community would pose real dangers to other innocent your girls and women in society. To this end a custodial sentence in my view is warranted in order to send a very strong message to others not to commit similar crimes on young innocent children. You are therefore sentenced to 17 years. From that term will be deducted a period of 1 year 1 week to take into account the time you have already spent in prison. That leaves a term of 15 years 11 months and 3 weeks to be served from today.

Sentenced accordingly.

Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused