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State v Polly [2016] PGNC 383; N6621 (24 August 2016)

N6621

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1281OF 2015

THE STATE

V

PETRUS POLLY

Kokopo: Lenalia, J.
2016: 21^st, 27^th July, 16^th&24^thAugust

CRIMINAL LAW – Rape – Digital penetration by fingers – Plea of guilty – Sentence – Section 347 (2) Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

CRIMINAL LAW – Sentencing principles in digital sexual penetration – Circumstances of aggravations – No weapons used –Digital penetration very prevalent – Appropriate penalty – Suspended sentence appropriate.

Cases cited
Maima Sma [1971-1972] PNGLR 518
Stanley Sabiu v The State (2007) SC866
Thomas Waim v The State (1996) SC 519
The State v Pais Steven Sau (2004) N2588
The State v Philip Komo (19.11.09) N3816
The State v Jerome Deila (20.8.09) N3840
The State-v-Donald Poni (2004) N2663
The State v Simon Ilikis (No.2) (17.6.2016) Cr. Nos. 757 &758 of 2016

Counsel:
Mr. L. J. Rangan, for the State
Ms. J. M. Ainui, for the Accused

24^th August, 2016

1. LENALIA J: The accused pleaded guilty to one count of rape with circumstances of aggravations pursuant to s.347 (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. Circumstances of aggravations are pleaded in the indictment pursuant to s.538 of the Criminal Code. Rape is defined by s.347 (1) (2) in the following terms:

“(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15
years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.”

(Emphasis added)

Facts in Brief

2. The agreed facts are that, on 1^st August 2015, between 12 noon and 1pm at Vunamami Ward 1, Kokopo District, E. N. B. Province, the victim D. S. ( Donald Sherry), and her small cousin brother were inside her uncles’ house watching TV. The victim’s bigger cousin sister went out to the store to purchase top-ups.
   
3. The offender came and stood outside the house and called out for the victim and her cousin brother to come outside. The victim did not want to go outside and told her cousin to go out and see who was calling. When the offender did not see the victim, he walked inside the house direct to where the victim was sitting and grabbed her by her hand and they came out from the house. Outside the house, the offender asked the victim if she was a boy or girl.
   
4. She answered that, she was a girl and he took her and her cousin brother to an adjacent incomplete house. The prisoner then asked the victim to remove her clothes. She refused and the accused then immediately pushed his fingers into her vagina. He did this in full view of the little cousin brother who watched what the accused was doing to the victim as watching a pornography movie.
   

Addresses on Sentence

5. On his last say, the prisoner said, he is sorry for what he did to the victim. He said, he is not from this Province and he is working to support his family. He said, his wife is a sick woman with ulcer condition and it is hard for her to look after their children. He asked for mercy.
   
6. For the prisoner, Ms. Ainui, submitted the following mitigations:
   
   • ➢ the prisoner’s guilty plea to the serious charge,
   • ➢ first time offender,
   • ➢ she asked the court to consider the prisoner’s expression of remorse,
   • ➢ his cooperation with police,
   • ➢ the court to consider comments by those persons contacted in the pre-sentence report,
   • ➢ prisoner willingness to pay compensation,
   • ➢ no serious injuries received by the victim, and
   • ➢ the prisoner’s wife cannot perform heavy duty.
     
7. Counsel submitted that this case was not a worst type case as the offence was a one off incident. She referred to cases of The State v Simon Ilikis (No.2) (17.6.2016) Cr. Nos. 757 & 758 of 2015and that of The State v Nanas Libai (asked the Court to consider similar penalties on the instant case.
   
8. For the State, Mr. Rangan submitted that this case is one of those very serious cases because it was committed with a number of aggravating factors defined in s.347 (2) and s.349A of the Code on the interpretation of circumstances of aggravations. Counsel further submitted further that this case involved breach of trust because, the offender was employed by the uncle of the victim to complete carpentry work on their units. The age difference was big as the victim was 9 years and for the court to consider the prevalence of the crime of rape and other sexual crimes. Counsel referred to the same case referred to by the defence counsel the case of The State v Simon Ilikis (supra).
   

Pre-Sentence & Means Assessment Reports

9. A number of people were contacted by the Probation Officer following directions from this court. They include:
   
   1. Mrs. Mary Aser – she is the owner of the house where the offence was committed. Mary and her family contracted the offender to complete a unit owned by her family. Expressed concern about what prisoner did. Confirm that the offender was permanently on his right eye by her relatives following commission of this offence.
   2. Ms. Joyce Donald, she is the sister of Mr. Henry Aser who employed the prisoner and mother of the victim. Asked for compensation.
   3. The victim Sherry ToRur – she gave contradicting stories to her mother about the incident. She is feeling sorry for the prisoner and she wants compensation.
   4. Mrs. Susan Polly – She is the wife of the prisoner. When contacted, she expressed concern about her illness and the offence. No medical report was produced as there is none in the P/S/R.
      

Application of Law

10. The crime of rape on this case was digital sexual penetration. A number of serious aggravations present on this case. They include:
    
    • ➢ Victim was under statutory limit of 12 years.
    • ➢ She was 9 years on date of offence.
    • ➢ Big age different, accused was about 30 years.
    • ➢ Breach of trust, according to statement of mother of victim dated 6.8.15, the offender works with victim’s uncle as a carpenter.
    • ➢ The offence was committed when the cousin brother of the victim was looking at what the offender was doing.
      
11. Mr. Rangan referred to the definition of circumstances of aggravations as defined in s.349A of the Code. A note table factor on current trends of sentencing on rape cases is that penalties awarded in rising. The reason for this is because, sexual crimes are very prevalent in our time. When an offender is indicted for a sexual offence which carries the maximum penalty of life such as s.229A (2) (3), s.229D (6) or s.347 (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act, they fall under the worst type category: Maima v Sma [1971-1972] PNGLR 518.
    
12. On the instant case, a young girl was abused. Victims of sexual abuse are supposed to be at the mercy of those who call themselves their protectors. But people like the offender take advantage of little girls like the one of this case was only 9 years. The offender pushed his finger into her vagina. The medical report done on the victim on 8^th August 2015 records the following injuries:
    

“Vaginal examination showed bruises x2 on her external vagina, tender +, no bleeding.

Hymen was bruised and slightly torn posteriorly, tender + +, no bleeding.”

13. This case is one of digital penetration meaning not by penile penetration but by pushing of fingers into the victim’s vagina. Whatever penalty the court will impose today will not justify the pain, suffering and psychological traumas caused to infant child or teenage victim of this case. The prisoner must realize that you have caused psychological and physical damage to the victim.

16. She has suffered and will continue to suffer and endure until she is old. Today, sexual abuses whether by rape, touching or other sexual crimes, are so prevalent indeed.

14. The call for severe penalties on rape cases because it is violent and so prevalent has been echoed in many cases both by the Supreme Court and National Court Judges: I endorse what the Supreme Court said in Thomas Waim v The State (1996) SC 519 that there had been escalation in the prevalence of the crime of rape by penile penetration. Because, the crime of rape or any sexual offences breaches respect, love and is totally inhuman to the dignity and respect due to women it only makes sense that any penalty imposed must be gauged towards deterrence and elimination of sexual violence: Stanley Sabiu v The State (2007) SC866.
    
15. On penile penetration rapes case, in The State v Philip Komo (19.11.09) N3816, the offender was charged with aggravated rape of his step-daughter breaching the relationship of trust, authority or dependency. The case went by trial and the offender was found guilty. He was sentenced to 18 years imprisonment. In The State v Jerome Deila (20.8.09) N3840 a similar case as the one before me, aggravated by existing relationship of trust, authority or dependency. The offender was sentenced to 15 years imprisonment.
    
16. In The State v Pais Steven Sau (2004) N2588, a case of rape, on a plea of guilty, the prisoner was sentenced to 15 years. In The State v Flotime Sina(No.2) (2004) N2541, he was sentenced to the maximum of 15 years for rape with aggravations.
    
17. I have considered all addresses first by the prisoner and his lawyer on mitigation and that by the State Prosecutor on aggravations. I have also considered the terms of the pre-sentence report. The case before me is one of digital penetration. I am of the view that, penalties imposed for penile rape cases should differ from digital sexual penetration, be this case is one of those very serious cases. That is due to the fact that, the victim is related to the accused by custom and he breached the trust reposed on him by the victim.

18. Your case is similar to the case of The State v Simon Ilikis (No.2) (17.6.2016) Cr. Nos. 757 &758 of 2016 a case at Molot, Kibil Patrol Post, where the offender was found guilty of persistent digital penetration of his step-daughter. He was charged under s.229D (6) of the Code. He abused the victim from 2012 to early 2015. This court found that that case was serious because the abuse was committed with breach of trust. He was sentenced to 12 years imprisonment with 5 years suspended.
    
19. To deter this animalistic attitude exhibited to young victims like the complainant of this case, penalties imposed by the Judges of this Court must equalize the pain and suffering experienced by young girls.
    
20. On the plea for compensation, I am of the view that, the court should consider compensation be paid to the victim and her parents. The means assessment report indicates that the offender is willing to pay compensation. I consider all addresses by the prisoner and lawyers.
    
21. I consider the prisoner’s guilty plea to this serious charge. The maximum penalty is usually reserved for the worst type case: Maima v Sma [1971-1972] PNGLR 518. I consider the fact that, the prisoner had been brutally assaulted by relatives of the victim. The court imposes the head sentence of 6 years. The court suspends the whole sentence on the following conditions.
    
    1. You shall keep the peace for 2 years.
    2. To restore your relationship with the victim and her family members, the court makes the following orders for compensation.
    3. You shall pay K1, 000 compensation to the victim and her parents,
    4. K500.00 of the above amount shall be paid to the victim that should be paid into her trust fund account.
    5. The remaining shall be paid to the parents and other children in the family.
    6. You shall also pay a total of 100 fathoms of shell money to the parents of the victim.
    7. You are given two months to pay the whole compensation.
    8. After you have satisfied the orders, you shall report to Mr. Nigel Amos who is the Senior Community Base Correction Office here at the Kokopo Office who shall report to the Court on the status of payments.

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