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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 229 OF 2014
THE STATE
-V-
IRAN GAIRA
Respondent
Popondetta : Toliken, J.
2015 : 03rd, 06th March
CRIMINAL LAW – Sentence - Sexual penetration of a child below the age of 12 years – Digital penetration – Relationship of trust, authority and dependency - Criminal Code Ch. 262, s 22A(1(2)(3).
CRIMINAL LAW – Sentence – Plea - Mitigating factors – plea of guilty – First time offender – Isolated incident – Youthful offender – Aggravating factors – Tender age of victim (4 years) – Huge age different of 18 years – Injuries to victim's vital – Serious breach of trust – Starting point of 10 years - Head sentence of 11 years less period in custody – Suspension – Appropriate case of – 5 years of resultant sentence suspended on condition - Balance of 4 years and 9 months to be served.
Cases cited:
Stanley Sabiu –v- The State (2007) SC 866
Manu Koivi –v- The State (2005) SC789
The Public Prosecutor –v- Don Hale (1998) SC564
Goli Golu –v- The State [1979] PNGLR 653
Avia Aihi –v- The State (No. 3) [1982] PNGLR 92
The State –v- Macy Sigege (2014) N5521
The State –v- John Henry (2014) N5630
The State –v- Standley Konda (2014) N5780
The State –v- Billy Paulo (2013) N5286
The State –v- Ramo (2007) N4982
The State –v- Songones (2007) N5044
The State –v- Taunde (2005) N2807
Counsel:
J. Done, for the State
E. Sasingian, for the Prisoner
JUDGMENT ON SENTENCE
09th March 2015
1. TOLIKEN, J. Iran Gaira on the 06th of March 2015, you pleaded guilty to one count of sexual penetration of a child under the age of 12 years (then 4 years) with whom you stood in a position of trust, authority and dependency. This is an offence under S. 229 A (1) (2) (3) of the Criminal Code Act.
2. You were arraigned on the following facts, which you also admitted. On the 13th day of November 2013 at about 5.00 p.m. you were at Guguna Village, Oro Bay. You were staying with the victim (H.O)'s family at their family home. When H.O was left unattended you called her to the back of the house where you sexually penetrated her with your finger.
3. When the child's mother noticed that she was not walking properly she questioned her and she told her what you did to her. The child was taken to the Popondetta General Hospital for medical examination and the matter was also reported to the police. The medical examination revealed redness of the labia minora and a laceration or graze measuring 0.5cm x 0.5cm. The child is your niece and so you stand in a position of trust, authority and dependency.
4. I confirmed your plea and convicted you after I had read the material in the District Court depositions, and after having satisfying myself that your plea was safe.
5. Your particular offence i.e. sexual penetration of a child under the age of 12 years where there is in existence a relationship of trust, authority and dependency carries a maximum penalty of life imprisonment, and not 25 years as I indicated to you when I administered the allocutus.
ANTECEDENTS
6. You are 22 years old and come from Jinena Village, Ijivitari, here in the Northern Province. You are single and are a simple subsistence village farmer. You were educated up to Grade 6 only. This is your first offence. Your mother recently passed away while you were in custody for this offence. Your father is still alive but is very old.
ALLOCUTUS
7. In your allocutus you told the Court that there are 3 of you in the family - two sisters and yourself. Your sisters had married and moved away, leaving you and your aged parents in the village before you got into trouble. Your mother passed away while you were in custody. Your father is now alone in the village with no one to look after. You said that there is now no one to look after your coconut and betelnut plantations, your pigs, and chickens because your father is very old. You also said that you are the only person to look after these properties. Hence you asked who will look after these if your father passes away while you are in prison and what will happen to those properties.
8. You apologised to God, and the Court for breaking the law. You therefore asked to be allowed to pay a fine and compensation and that you be forgiven. You pleaded to be placed on probation.
SUBMISSIONS
9. Mr. Sasingian, your lawyer, submitted that your case is not the worst instance of this type of case because you penetrated the victim with your fingers only. He said that you are a first time offender, you pleaded guilty to the offence, you made very early admissions, it was an isolated incident, you're a youthful offender and that you also expressed remorse.
10. Mr. Sasingian, however conceded that there is a big age difference between you and the victim. You were 22 years old and she was only 4 years old. There was also a breach of trust, the victim was injured in her vagina and this is also a very prevalent offence.
11. Counsel referred me to the case of The State –v- Taunde (2005) N2807 where the prisoner was sentenced to 10 years for sexually penetrating his niece with his penis. The girl was 13 years old. Though the circumstances are not entirely similar to yours, there was an existing relationship of trust which was pleaded in the indictment in that case.
12. Mr. Sasingian submitted that a starting point for you should be 10 years and your head sentence should be 6 years.
13. Mr. Done, for the State, on the other hand submitted that the Supreme Court, in Stanley Sabiu –v- The State (2007) SC 866, had set the starting point of 15 years for cases involving sexual penetration of girls under the age of 12 years.
14. Mr. Done said that it did not matter whether you sexually penetrated the victim with you penis, fingers, or other objects because the offence is serious and there was a serious breach of trust.
THE LAW
15 As I indicated earlier, the offence which you pleaded guilty to, carries a maximum penalty of life imprisonment. This is because the victim was under 12 years old (only 4 years old) and she is your niece and therefore you stand in a position of trust, authority and dependency towards her. This is contrasted with sexual penetration of a child under the age of 16 years but not below 12 years which carries a maximum penalty of 25 years only.
16. The stiff penalties here reflect the seriousness which Parliament had placed on the need to protect or to prevent our children from sexual abuse of all sorts by adults. Children because they are vulnerable have to be protected. And where the perpetrators of the abuse are people who stand in positions of trust, then Parliament had appropriately decreed that such persons be visited upon with very stiff penalties.
17. The law is, however, clear also that the maximum penalty is always reserved for the worst offences and that each particular case ought to be treated on its own circumstances and merits. (Goli Golu –v- The State [1979] PNGLR 653; Avia Aihi –v- The State (No. 3) [1982] PNGLR 92)
SENTENCING TREND
18. Sexual offences against children, particularly those involving sexual penetration, are very prevalent so there are numerous cases both reported and unreported, from which we can gauge the sentencing trend by this court, that is, the National Court. Most of these cases involve penile penetration, or penetration using the penis. There are very few cases of digital penetration, that is, penetration by fingers, or by means or modes of penetration such as with objects.
19. But despite that, the Supreme Court had set a starting point for sexual penetration of a child under the age of 12 years at 15 years in the case of Sabiu –v- The State which I referred to earlier. The court there, however, did not differentiate between penile and digital penetration. Notwithstanding that I should think that the mode of penetration will be a relevant factor in considering whether it aggravates or mitigates an offence.
20. I have had the opportunity to deal with one matter involving digital penetration, and this is the case of The State –v- Macy Sigege [2014] N5521. This was a sentence I handed down here in Popondetta on the 18th of February 2014. In that case the prisoner sexually penetrated the victim who was under 4 years old with his fingers. The Prisoner was 16 years old and he was an uncle to the victim. There the prisoner pleaded guilty, was a first time offender, was also a juvenile, was illiterate, had co-operated with the police, was of previous good character, had expressed remorse and did not infect the victim with any Sexually Transmitted Infection (STI). However, the aggravating factors against him were that there was a huge age difference between him and the victim (13 years), there was also a serious breach of trust as the victim was a close relative of the prisoner. And the victim had suffered some injuries and trauma to her vagina. I sentenced the prisoner to 11 years IHL, less the pre-trial custody period. I suspended 4 years of the resultant sentence on conditions and placed the prisoner on probation.
21. In The State –v- John Henry (2014) N5630, the prisoner confronted the 9 year old victim at a coconut dryer while she was husking coconuts with her brother. He chased the boy away and then sexually penetrated the victim's anus using his fingers and at the same time touched her vagina. The prisoner was like a grandfather to the victim hence, he was in a position of trust, authority and dependency towards the child. The prisoner there was a first time offender, pleaded guilty to the charge and was remorseful. There was, however, a serious breach of trust in that he was 42 years old while the victim was only 9 years old - a huge age of 33 difference between them. The Court there also took into account that the victim did not suffer any physical injury. His Honour Oli, AJ. sentenced the prisoner to 13 years IHL less time spent in custody. None of the resultant sentence was suspended.
22. In The State –v- Standley Konda (2014) N5780, the prisoner pleaded guilty to two counts of sexually penetrating two 8 year old girls. He had followed the two girls to the garden. And there he pushed one of the girls to the ground and then pushed his finger into her vagina. Then he took the girls to the house and told them to play with him, which they did. While they were climbing over him he pushed his fingers into both girls' vaginas.
23. His Honour Cannings J. took into account the following mitigating factors. The prisoner pleaded guilty, was a first time offender, did not use any weapons or aggravated violence on his victims, he did not infect the victims with STIs and that this was digital penetration as opposed to penile penetration. Against the prisoner, his Honour found that there was an age difference of 12 years between the victims and the offender, the victims were of tender years, there was no consent, and there was an extreme breach of trust. His Honour therefore sentenced the prisoner to 7 years for each count for a total cumulative sentence of 14 years. Based on the totality principle the prisoner was sentenced to 5 years imprisonment for each count which were ordered to be served cumulatively.
24. A couple of earlier cases are The State –v- Ramo (2007) N4982 and The State –v- Songones (2007) N5044. In Ramo (supra) the prisoner penetrated the 6 year old victim's vagina with his finger and then tried to penetrate the victim again with his penis. On a plea of guilty he was sentenced to 10 years IHL. None of this was suspended.
25. In Songones (supra) the prisoner pleaded guilty to sexually penetrating a 12 year girl with his fingers. They were sleeping in the same room in the child's family's house. He inflicted some injury on the girl. In that case he was sentenced to 8 years imprisonment less time spent in custody. None of the resultant sentence were suspended.
26. So as we can see from the few cases surveyed above, sentences for digital penetration of girls below 12 years of age have ranged from 5– 13 years.
27. The Supreme Court had set a general starting point as I said for sexually penetrating of a child under 12 years of age at 15 years. But it has not set a starting point specifically for digital penetration. When acknowledging this fact, His Honour Cannings, J. in The State –v- Konda (supra) set the starting point at 10 years. I think that this is a fair assessment because applying a general starting point for all kinds of penetration of a child under 12 year old at 15 years, would be unfair and would result in excessive and unjust sentences for offenders who digitally penetrate their victims.
28. While the seriousness of sexual penetration of a child cannot be down played it is, I should think, appropriate to compare the sentencing trend for these offences with other offences, more particularly the more serious offences such as homicide offences for which the Supreme Court had also provided sentencing guidelines (Manu Koivi –v- The State (2005) SC789). As I said in The State –v- Sigege (supra) when rejecting the State's submission that the starting point in Stanley Sabiu (supra) should now be increased to 18 years because of the prevalence of the offences under S229A of the Code, the general head sentence of 15 years is high enough already as it is. To bring it any higher would be to bring the tariffs for sexual offences to the same plane as those of category 2 of Manu Koivi for murder which is a more serious offence, notwithstanding that the maximum penalty for both offences is life imprisonment.
29. I am of the same view therefore with my brother Cannings, J. that for digital penetration the starting point for a guilty plea should be 10 years which can then be adjusted upwards or downwards, depending on the circumstances of each particular case.
YOUR CASE
30. Turning now to your case, I find that this is not the worst instance of this particular kind of offence, that is, of sexual penetration of a girl below 12 years. Therefore it does not warrant the maximum penalty of life imprisonment.
31. There are several factors that mitigate your offence. These are –
32. However, against you are the following aggravating factors –
STARTING POINT
33. So what then should be a starting point for you? As I said above the starting point on a guilty plea should be 10 years. I therefore set your starting point at 10 years.
34. While your mitigating factors outnumbered your aggravating factors, what is important is not the number of factors but the quality of those factors and whether they are mitigating or aggravating factors. When assessing the competing factors in your case I find that the aggravating factors against you far outweigh your mitigating factors and this should warrant a sentence that will punish you and also serve to deter you personally, and for general deterrence. The sentence should also serve to give effect to Parliament's intention to protect our children from sexual abuse by abusive men like you. So what should be an appropriate head sentence for you?
35. The circumstances of your case are somewhat similar to those of Sigege. In both cases the victims were very young, and you and Sigege stood in very close relationships of trust with the victims, the respective victims were your nieces and that both victims suffered some injuries to their genitals. The only difference between your case and that of Sigege was that Sigege was a juvenile.
HEAD SENTENCE
36. In the circumstances I feel that an appropriate sentence for you should be 11 years less the period you spent in custody - 1 year and 3 months. I reject your lawyer's submission that a head sentence of 6 years is appropriate for you. I therefore sentence you to 11 years less 1 year and 3 months for which you spent in custody awaiting your trial. So this should leave a resultant sentence of 9 years and 9 months. The next question then is; should I suspend the sentence, whether wholly or partially?
SUSPENSION
37. Suspension of sentence is an entirely discretionary mater. The discretion is, however, exercised on proper principles. Basically a sentence may only be suspended if a Pre-Sentence Report is favourable to the prisoner. (The Public Prosecutor –v- Don Hale (1998) SC564)
38. For sexual offences against children, especially those involving close family members with whom there is in existence position of trust, authority and dependency, I had said in The State –v- Billy Paulo [2013] N5286, that an important objective in sentencing here is the need to separate an abusive parent or relative from the child victim for the best interest and welfare of the child. That was a case of persistent sexual abuse by the prisoner of his biological daughter. The abuse started with sexual touching when the child was 7 years old then continued on until the child was 11 years old when the prisoner finally sexually penetrated her with his penis. I said in that case in paragraph 52, and I quote:
"...an important object of sentencing in sexual offences against children should be and must be separation. That is separating the prisoner from the victim. And where the child victim is of tender years ... it is in the best interest of the child that she is not exposed to an abusive parent. The Court will be failing its duty to the child and to society generally if it does not protect the paramount interest of the child if it does not take into account the likely consequences if the abusive parent were not to be separated from the child."
39. In that case I sentenced the prisoner to 20 years imprisonment. I held further that, in the circumstances, suspension of any part of the sentence was inappropriate.
40. In your case, I do accept that the victim was your niece. I am, however, not certain if you are blood or closely related, or whether you are just classificatory relatives. You have a very good Pre-Sentence Report. While the victim is your niece I have not been told that you live together in the same village or same house for that matter. And while I do not lose sight of what I said in Billy Paulo (supra), of the need for separation of victims from their abusers, I feel that a partial suspension of your sentence is appropriate for the reasons that I have stated above.
ORDERS
41. I therefore suspend 5 years of your sentence and place you on 5 years probation with additional conditions that;
(1) You will not have any contact whatsoever with the victim (HO) for the period of your probation
(2) You will not have any contact whatsoever with any girl under the age of 16 years without the presence of adults.
42. You will serve the balance of your suspended sentence i.e. 4 years and 9 months at Biru Corrective Institution. This is the sentence of this court.
Ordered accordingly.
_____________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner
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