National Court of Papua New Guinea

(3) If, at the time of the offence, twas asting relationshionship &#1p &#16trust, authority or depr dependency between the accused and the &#hild,ffe oer ader againstainst Subsection (1) is guilty of a crime, and & is liable, sub, subject to Section 19, to imprisonment for life.&;

On his allocutus, the prisoner sner said, aid, he ishe is sorry for what he did to the little victim Kongle Marake. He said sorry t victd her parents ands and thei their relatives. He said, he had been found guilty and asked for mercy.

3. On the prisoner’s antecedents, he is about 33 years according to the District Court Information Sheet. He comes from a family of two brothers and six sisters. He is from Bain village in Pomio District. He has had no –
-formal education,
-no formal employment,
-he grows tobacco and processes it for sale,
- he is a simple villager.

Mitigations

4. Extenuating circumstances include as submitted by the defence counsel:
-no prior convictions,
-expression of remorse,

-bread winner of his family and his younger brothers, 2 of whom are in school

Aggravations

5. The following are the aggravating factors:
-victim at the time the 1^st offence, age 6 years 2 ½ months,
-at time of 2^nd offence 7 years 4 months
-was under age of 12 years,
-breach of trust, the prisoner and victim’s family lived close to each other and he use to come and eat in the victim’s parents’ house,
-big a gap age difference,
-psychological trauma caused to victim,
-impact of offence on victim’s social life

Defence Counsel Submission

6. The court considers counsels’ submission on sentence. Ms. Ainui for the prisoner submitted that, the court should consider no injuries were caused to the victim and cited the case of The State v Magugu Kapinias (6.5.2016) Cr. No.1208 of 2014 where this court sentenced the offender to 25 consecutive sentences for the crimes of aggravated rape under s.347 (2) of the Criminal Code Amended. Ten (10) years of the sentence was suspended with conditions.

Prosecution Counsel Submission

7. Mr. Rangan cited the case of The State v Alios Padik (3.5.2016) Cr. No.1453 of 2014. On that case the offender charged with one count of persistent sexual abuse under s.229D (6) of the Criminal Code. The victim was under the age of 12 years. He was tried and found guilty. He was sentenced to 20 years imprisonment. Counsel asked the court to consider the deterrent aspect of sentencing in criminal cases because the case involved the victim on the instant case was under the age of 12 years.

Recent Sentencing Trends

8. The maximum penalty for the two crimes of sexual penetration of a victim under the age of 12 years pursuant to s.229A (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act is subject to s.19 of the Criminal Code, life imprisonment. The maximum penalty is usually reserved for the worse type cases encountered in practice: Maima v Sma [1972] PNGLR 49.

9. The court observed the victim of this case when she gave her evidence. I accept the fact that she was well under age for anyone to sexually penetrate her. The medical report was tendered by consent (see Ex. “5” & “5A”) shows the hymen was absent (torn). The court’s view is that, the victim was so small, not capable of having sex with anyone. Stiff penalties have been consistently imposed in sexual penetration cases because, this is reflected by the legislators of this nation to protect or prevent our children from sexual abuse of all sorts.

10. Because children are so vulnerable, they have to be protected and the Parliament took the right direction on determining rights of young girls. Where perpetrators of any sexual or physical abuse stand in the position of trust, authority and dependency, the Parliament had appropriately considered that such persons be visited with very stiff penalties.

11. Sexual offences against children particularly, sexual penetration is very prevalent and there are numerous case law authorities both reported and unreported from which a sentencing Judge in a particular case may gauge the sentencing trends by National Court Judges and decide on an appropriate penalty to be imposed depending on the merits of each case.

12. The Supreme Court set a starting point in sexual penetration cases in Stanley Sabiu v The State (2007) SC 866 and said the starting point for sexual penetration of a child under the age of 12 years should be 15 years imprisonment.

13. The case before me was committed with a number of very serious aggravations. In the victim’s evidence, she revealed that the prisoner’s house is just next to her parents and the prisoner eats with them and chew betel nuts with her parents. I find the prisoner breached the trust between him and the victim and her parents.

14. This court has dealt with a number of sexual penetration cases where offenders have been indicted under s.229A (1) & (2) of the Criminal Code. An example of such cases is 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.

15. In that same year, in The State-v-Kaminiel Okole (18.4.06) N3052, the prisoner pleaded guilty to three counts of sexual penetration aggravated by abused of trust and authority. For the first and second counts, he was sentenced to consecutive terms of 17 years. The 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.

16. Another case of that year in The State v Waira Nason Tomar (9.10.06) CR.No.534 of 2005, the offender was charged for sexual penetration of the 14 year old victim. There were two acts of sexual penetration, he pleaded guilty. Four years were imposed for the first count and three years for the second making a total of 5 years imprisonment. Sentences were ordered to be served consecutively. Then in The State v Paul Wakara (2006) CR.No.914 of 2006, it was a case where the offender was charged for one count of sexual penetration of a ten year old child. The offender forced the victim into sex. Though no injuries were found, he was sentenced to 10 years imprisonment.

17. In other cases like in The State v John Henry (2014) N5630, the offender confronted the 9 year old victim while husking coconut in a coconut dryer with her brother. He chased the boy away, and sexually penetrated the victim’s anus and at the same time sexually touched her vagina. The offence was committed with breach of trust because, he was like a grandfather to the victim. There was a huge age gap of 33 years. He was sentenced him to 13 years imprisonment.

18. In The State v Stanly Kondo (2014) N5780, the prisoner pleaded guilty to two counts of sexually penetrating two 8 year old girls. After seeing the two girls gone to the garden, he followed them. As soon as he reached them, he pushed one down to the ground and held on to the other one and pushed his fingers in and out of her vagina. He took the victims to the house where he told them to play with him. While they were climbing over him, he pushed his fingers in and out of their vaginas. He was sentenced to 14 years consecutive sentences. Due to consideration on the totality principle, the offender was sentenced to 5 years consecutive sentences.

19. On the current case, there was a big gap age between the little victim Kongle Marake and the offender. Kongle was merely 6 years old on the act of sexual penetration and 7 years and three month on the second time she was sexually penetrated. The offender’s estimated age then was 33 years old. The age gap was 26 years. In the National Court case of The State-v-Penias Mokei (No.2) (2004) N2635 Cannings J suggested some factors to be taken into account when deciding an appropriate sentence for sexual violence crimes. Such considerations were re-stated by the Supreme Court case of in Stanley Sabiu-v-The State (2007) SC866. The consideration enunciated in the above case are:

1. Is there only a small age difference between the offender and the ;&#16tim?
2.br>2. Is thIs 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 aggrd

ph physicaysical 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? &wrong as offeriffering comg compensation for reconciliation with the
family of aed vtctim?
br> 12.the offender caused any further trouble to the victim or the
&1600;#16ctimim’s 17;s family since the inci
1s the offender pleaded guilty?
14. H14. Has the offender genuinely expressed remorse?
15. Is thisfirstnce?
16. 16. Is the accused a youthful offender or are the circumstances
which the coill take and rand regard as mitigations?
17. Are there any other circumstances of incidents which warrants
҈ mitigation of the head sentence?