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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR.NO.889 OF 2014
THE STATE
-V-
ROCHUS LEO
(No.2)
Kokopo: Lenalia, J
2015: 9th, 10th, 11th & 23rd December
2016:3rd, 8th, 15th & 18th February
CRIMINAL LAW – Sexual penetration of underage girl – Sentence after a finding of guilty –Criminal Code (Sexual Offences and Crimes Against Children) Act s.229A (1).
CRIMINAL LAW –Sentencing guidelines – Sexual intercourse was not denied – Appropriate erm of imprisonment – Five (5) years.
Cases cited.
Goli Golu v The State [1979] PNGLR 653
State v Penias Moke (2004) N2635
Stanley Sabiu v The State (2007) SC866
The State-v-Peter Lare (2004) N2557
The State-v-John Ritsi Kutetoa (2005) N 2814
The State v James Yali (2006) N2989
Counsel:
W. Paka, for State
J. Ainui, for the Accused.
18th February, 2016
1. LENALIA, J: The prisoner was found guilty on 23rd December last year for the charge of sexual penetration of the victim under the age of 16 years. This is an offence against Section 229A (1) of the Criminal Code (Sexual Offences and Crimes against Children) Act. What is left for the court to do is sentence the prisoner for the crime he committed.
2. In this case, sexual intercourse was not denied as according to the evidence, the prisoner said in evidence and cross-examination that, he completed his Grade 7 in 2007 and the victim was doing her Grade 4. The victim disputed this and said, the accused only completed Grade 4 and he left school. The evidence by the prosecution is that, the victim was born on 21st July 1998. On the afternoon of the date on which she was sexually penetrated, namely 10th March 2014, she was about 15 years 4 months 1 week and 4 days old. The court found the accused guilty because he did not make out a case of reasonable belief. (See Judgment dated 23.12.2015).
Addresses on Penalty
3. We could not reach this stage last year so we adjourned this case to this year (1st, 3rd, 8th, 15th & 18th February 2015). When allocutus was administered to the prisoner, he said, he is sorry for what he did. He said sorry to the victim and her relatives and his own. He asked for leniency on sentence.
4. Ms. Ainui submitted the following mitigating factors:
- Previous good character,
- He is young is not married and the Court to consider the prisoner's good character and that this case does not deserve imposition of the maximum penalty of 25 years,
- There were no injuries caused to the victim and no sexual deceases were passed on to the victim as this was the case sexual intercourse has not been denied.
5. Counsel submitted that the court should consider this case involved sexual penetration in which the two may have had some kind of relationship. Counsel rightly submitted that may be the only issue was the age which his client believed that the victim was above the age limit.
6. Mr. Teko stood in for Mr. Paka the lawyer who prosecuted the offender. He submitted on aggravating factors as this was like a rape case. Counsel submitted that the court ought to consider a deterrent penalty to curb the crime of sexual penetration particularly of small victims like in this case where the victim was younger than the prisoner.
7. Counsel asked the court to consider the fact that force was applied against the victim by the prisoner using a piece of wood to block the knife and in the course of the ordeal, she was forced down to the ground. Counsel submitted that due to the seriousness of this crime, the offender should be sentenced to a term of years. On that note, I thank Mr. Paka for the written submission on sentence.
Applicable Law
8. The prisoner was charged under s.229A (1) (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. The maximum penalty provided by the provision concerned is 25 years imprisonment. This applies to ordinary sexual penetration cases. The prisoner's case comes under Subsection (1) of the above Section. I quote that provision in the following terms:
"(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.
9. Sentences imposed for crimes of sexual penetration under the Section vary from case to case. Penalties imposed on these crimes are entirely dependent on whether such offence was committed with aggravations or not. I consider the sentencing guidelines set by Justice Cannings in State v Penias Moke (2004) N2635 and in consideration of what ought to be an appropriate penalty: The State v James Yali (2006) N2989.
10. The offender ought to realize that, you could be sentenced to the maximum penalty of 25 years imprisonment. This Court has the discretion to impose a term lower than the prescribed term. (See s.19 of the Criminal Code. The principle on sentencing also involves consideration of aggravating factors and mitigating circumstances.
11. The issue of determining appropriate penalty is vested on a trial Judge to consider any cases on their own merits and impose whatever penalty as it considers appropriate: Stanley Sabiu v The State (2007) SC866.
12. As earlier alluded to sentences vary from case to case. Examples of this practice may be seen in cases such as in The State-v-John Ritsi Kutetoa (22.3.05) N 2814, the victim was 12 years. The offender was sentenced to 17 years for a similar offence. In The State-v-Peter Lare (2004) N2557, the prisoner in that case breached the trust because he was an uncle to the victim. The two had a long relationship for about four years and over. There was substantial age difference, the prisoner may have been 40 years older than the victim. The prisoner did not express any remorse for what he did and to the victim and her parents. The prisoner also infected the victim with a sexually transmitted decease. He was sentenced to 20 years.
13. In the circumstances of the instant case, I found from the evidence that after the victim was sexually assaulted, she did not
immediately report the matter to her parents. I consider factors like your case went through a trial which is your right under s.37
of the Constitution. It was a fair trial but it was lengthened due to calling of witnesses. Sexual intercourse is not denied.
The accused raised the defence that he had reasonable belief that the victim was above the limited age.
14. On the instant case, I have considered all addresses by the prisoner and his lawyer on mitigations and that by the State Prosecutor on the aggravations. I have considered contents of the pre-sentence report and the means-assessment report. The mother of the prisoner indicated the parties agree to pay K1, 000.00 cash and kind and 150 fathoms of shell money.
15. Only 100 fathoms of that agreed amount has been paid. I consider all the above factors and early payment of compensation done to restore relationship. The father of the victim says, he wants the prisoner to pay K2, 000.00 compensation for his daughter. I consider the fact that the maximum penalty ought to be reserved for the worst type case: Goli Golu v The State [1979] PNGLR 653.
16. The prisoner is a young man. If the court imposed a term of imprisonment, it will produce a lot of bad impacts and consequences of him turning out to be a hard-core criminal. I consider an appropriate penalty should be a suspended sentence. The prisoner is sentenced to 5 years imprisonment. The sentence is wholly suspended on the following conditions:
_______________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.
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