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State v Aru [2016] PGNC 424; N6917 (14 March 2016)

N6917

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1305 OF 2015

THE STATE

V

AMU ARU
Prisoner

Kainantu: Polume-Kiele, J
2015: 4^th & 18^th November
2016: 29 February & 14 March

CRIMINAL LAW - Sentence – Plea – Guilty - Sexual penetration of a child under the age of 16 years, Criminal Code, s 299A (1) (2) (3) - Division IV.2A - Sexual Offences Against Children, Section 229A(1), engaging in an act of sexual penetration of a girl under the age of 16 years

CRIMINAL LAW – Sentence – Mitigating factors – Early guilty plea – Cooperation with police – Aggravating factors - Close relationship – Serious breach of trust – Age difference of 13 years- factors relevant to sentence – application of factors – assessment of sentence – decision on sentence

Brief Facts:

The State alleged that on the 18^th of June 2015, the mother of the victim, Elis Max send her daughter namely Rose Max, a child under the age of 16 years old (aged 9 years then) to go to the prisoner’s house to get his lighter to light a fire to cook food. The victim on following her mother’s instructions did as she was told and went to her cousin’s house (the offender, Amu Aru’s house) and asked him for a lighter and the offender gave her a lighter which the victim took to her mother and she lit a fire. The victim then returned the lighter to the offender’s house. Upon returning the lighter, the offender however grabbed the victim and pulled her into the house, took off her clothes and sexually penetrated her. The victim did not tell her mother of the incident but on the same afternoon when she was having a bath, bathing became very painful and that was when the mother checked the victim and found that she was bleeding and blistered. She then reported the matter to the police and the offender was arrested and charged with the offence of sexual penetration of a child under the age of 16 years under s 299A (1) (2) (3) of the Criminal Code, this offence carries a maximum penalty subject to s 19 of imprisonment to life

Held:

(1) The range of sentences determined in relation to sexual penetration of a child under 16 years old varied from 2 years to 20 years depending on the given facts and circumstances of a case.

(2) In considering what is an appropriate sentence to be imposed in the light of the present case, this court will give due consideration to circumstances where aggravating facts exist such as:

• (i) Use of lethal weapon such as a bush knife or axe on an unarmed victim;
• (ii) Offender is in a position of trust;
• (iii) The offender inflicts physical violence on the victim;
• (iv) Where there is pre-planning;
  

(3) The prisoner’s mitigating factors are: he pleaded guilty early, he is a first time offender, cooperated with the police and is remorseful.

(4) The aggravating factors against the prisoner are that he is in a position of trust and there is an element of pre-planning and prevalence of offence.

(5) A head sentence of 15 years imprisonment imposed, less period of 8 months 8 days that the prisoner has been held in custody.

Cases Cited:
Papua New Guinea Cases

Avia Aihi v the State [1982] PNGLR 92
Golu v the State [1979] PNGLR 635
Maima v. Sma [1972] PNGLR 49
Public Prosecutor -v- Don Hale (1998) SC564
State v Biason Benson Samson (2005) N2799
SCR No. 1 of 1984: Re Maximum Penalty PNGLR 418
The State v George Taunde (2005) N2807
The State v Pennias Mokei (No.2) 2004 N2635
The State v Peter Lare (2004) N2557
The State v Eddie Trosty (2004) N2681
The State v Kemai Lumou (2004) N2684
The State v Titus Soumi (2005) N2809
The State v John Ritsi Kutetoa (2005) N2814
The State v Tiama Esrom (2006) N3054,
Ure Hane v the State [1984] PNGLR 105

Overseas Cases

R. v. Harrison [1997] UKHL 5; (1909) 2 Cr. App. R. 94

Counsel:

B Gore, for the State
S Ifina, for the State

JUDGMENT ON SENTENCE

14^th March, 2016

1. POLUME-KIELE J: On the 4^th of November 2015, Amu Aru, male aged 23 years old appeared before me charged for the offence of one count of sexual penetration of a child under the age of 16 years under s 229A (1) (2) (3) of the Criminal Code. The offence of sexual penetration of a child under s 229A (1) (2) (3) of the Criminal Code attracts a maximum penalty of subject to s 19, imprisonment for life.
   

Section 229A (1) (2) (3) of the Criminal Code reads:

"(1) A person who engages in an act of sexual penetration with a child under the age of 16 is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life."

2. The indictment presented was that on the 18^th day of June 2015 at Kemefa Village, Kainantu in Papua New Guinea, the prisoner engaged in an act of sexual penetration with a child (Rose Max) under the age of 12 years then aged 9 years. The indictment also alleged that there was an existing relationship of trust, authority and dependence between the prisoner and the complainant (Rose Max). In that the prisoner and Rose Max are first cousins. Their parents are siblings (brother and sister).
   
3. The prisoner pleaded guilty and after perusing the Kainantu Committal Court depositions; I confirmed the plea and convicted the prisoner on the charge of sexual penetration of a child under the age of 16 years under s229A (1) (2) (3) of the Criminal Code
   
4. This is my decision on sentence.
   

Committal Court Disposition

5. The Committal Court Disposition presented by the Kainantu District Court alleged the particulars of the offence as follows: the accused, Amu Aru and the complainant Rose Max are first blood cousins (in that the mother of the complainant is the biological small sister of the father of the accused). Both families live at Kemefa Village.
   
6. The State alleged that around 2 to 3 pm on the 18^th of June 2015 at the said Kemefa Village, the complainant’s mother send her to the accused’s house which is just close to theirs to get a gas lighter. When the complainant went to his house, the accused grabbed her and took her into his own mother’s house, removed her clothes and sexually penetrated her by inserting his penis into her vagina. After that, he let her go. The complainant reported the incident to her mother, later it was reported to the police and the accused was arrested and charged for sexual penetration of a child under the age of 16 years under s 229 (1) (2) (3) of the Criminal Code. The State further alleged that the accused sexually penetrated a child who was only 9 years old and further breach the relationship of trust, authority and dependency that existed between them as first cousins.
   
7. The State relied on documentary evidence which comprised mainly of statements from the witnesses including the victim and the Police Record of Interview which were contained in the Kainantu District Court Deposition that had been tendered into evidence by consent.
   

(a) The Confessional Statement of Amu Aru dated 24^th June 2015 which made before PWC Catherin Arre (Corroborator) and PWS/C Aru Asime (Investigator) which commenced at 11.35a.m at the CID Kainantu Police Station; (both the original Tok Pidgin and English Version) in which the accused admitted to committing the offence of sexual penetration of a child under the age of 16 years old.

(b) The Police Record of Interview comprised both the original Pidgin and English Version dated 3^rd of July 2015eptember 2014 which was marked as Exhibit "A" relating to the allegations of sexual penetration of a child under the age of 16 years old during which the accused, Amu Aru had admitted to have committed “the offence of sexual penetration of a child under the age of 16 years old on the 18^th of June 2015 at Kemefa Village, Kainantu contrary to s 229A (1) (2) (3) of the Criminal Code.

(c) Medical Report prepared by Dr T Koimbu of Kainantu Rural Hospital dated 23^rd June 2015 which showed that Rose Max, nine year old child was alleged to have been sexually assaulted by a known male on Wednesday 18^th June 2015. She arrived at the hospital complaining of pain in the anus and upon examination, he saw whitish fluid from the vagina. The child was in pain when walking, and felt pain when passing urine. The examination indicated tear from the vagina to clitoris and the vaginal opening was red and inflamed. Dr Koimbu’s conclusion in his medical assessment are as follows:

• (i) This is a young child not yet matured;
• (ii) There is trauma in the vagina;
• (iii) There was forceful penile penetration of the vagina;
• (iv) There is evidence of deposit of semen in the vagina
• (v) The victim to be reviewed again on 17^th of July 2015.
  

(d) The Statements of State witnesses namely Rose Max, the complainant dated the 19^th of June 2015, including the statements of Elis Max, complainant’s mother dated 19^th June 2015 and Police Investigator Aru Asime and Corroborator Catherine Arre respectively of the Kainantu Police CID Office. All these statements respectively confirmed the identity of the accused and the circumstances and his demeanour at the time of the commission of the offence including the interrogation and the laying of the charge against the prisoner.

8. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted. The prisoner was convicted on the charge of sexual penetration of a child under the age of 16 years old under s 229A (1) (2) (3) of the Criminal Code Act (Ch No 262).
   

Antecedent Report

9. The prisoner has no prior convictions.
   

Pre-Trial Detention

10. The prisoner was committed to stand trial on the 6^th of July 2015. He has been held in custody for a period of 8 months 8 days to the date of this ruling on sentence.
    

Allocutus

11. When administering the allocutus, you were asked if you had anything to say on penalty. You stated that you wished to speak to the Court on the issue of penalty. You were then given the opportunity to speak and in your statement on penalty, you said that you were sorry for what you did. You apologised to the court and court staff and all those people present in the court room for what you had done. In addition, you asked for leniency from the Court and that you asked this Court that you be placed on probation.
    

Pre-Sentence Report

12. Because you had asked to be placed on probation and to pay compensation, your lawyer, Mr Ifina requested that this Court direct the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report and a Means Assessment Report for purposes of assessing your suitability as a candidate for supervisory probationary orders and capacity to make compensation payments if so ordered and also to assist this Court determine penalty. This process is now a necessary component of the Court process where prisoners have exercised their right to ask the Court to be placed on probation (given the principles established in the case of Public Prosecutor -v- Don Hale (1998) SC564 . To facilitate this process, this Court had directed the Probations Officer, (Kainantu) to prepare and file a Pre-Sentence Report and Means Assessment Report which was compiled and filed prior to the 16^th of November 2015. These Reports were promptly provided by the Probation Officer.
    
13. According to the Pre- Sentence Report, you have two sisters and four brothers. You are the second child in the family. You are educated up to 9 at Kainantu Secondary School and had been enrolled at the Maria Hill Community College however due to this trouble, you did not graduate. All your other siblings including your parents are all living in Kemefa in Kainantu. You were unemployed and depend entirely on your parents for financial support, although married with a child. With regard to the issue of payment of compensation, your father has indicated his willingness to accept the hardship to raise money to say sorry to Rose Max (victim) and her family and to reconcile with the victims whatever the outcome of this proceeding.
    
14. This Court also notes your father however has asked that the court give him a grace period of three months to pay compensation. Aside from your father’s commitment to making reconciliatory matters with the victim and her family; the community was also consulted as to your suitability for supervisory probationary orders and the community hold the view that payment of compensation is necessary for purposes of reconciliation with the victims and encourage the payment of compensation to the victim and her family. Overall, the Pre-Sentence Report compiled by the Probation Officer, recommended that you are a suitable candidate to be placed on Probationary supervision with certain terms and conditions and these are:
    
    • (1) You be placed on 100 hours at the Community Work to be supervised by the CBC Office, Kainantu on the site the Kainantu Rural Hospital, District Administration and Urban LLG;
      
    • (2) The time frame of 3 months should be given to the offender to pay compensation and reconcile with the victim’s relatives;
      
    • (3) If the court pleases no custody sentence should be imposed to the offender;
      
    • (4) The offender shall not change his address or move to other Province until the completion of your Probationary Supervision Orders.
      

Mitigating Factors

15. The relevant mitigating factors in your favour are your early plea which has resulted in saving Court’s time and State’s expenses which has resulted in this early outcome. In addition, this Court also noted that you are a first time offender and that you have co-operated well with the police including your explanation relating to the offence as recorded in the Record of Interview.
    

Aggravating Factors

16. The aggravating factors against you are that you engage in acts of sexual intercourse with the victim on the 18^th of June 2015 which took place at your home. At the time that you engaged in this acts, you and the victim are blood relatives. You were in a position of trust and authority and as such the victim depended on you to protect her but instead, you sexually assaulted her and by doing so, you have broken a law of this country. This type of offence is prevalent; an offence for which you have to face the consequences of your actions.
    

Elements of the Offence - s 229A (1) (2) (3) of the Criminal Code

17. In order to prove the offence of sexual penetration of a child under the age of 16 years old under s 229A (1) (2) (3) of the Criminal Code, the elements of the offence must be established by evidence under s 229A (1) (2) (3) of the Criminal Code. In that the State must prove the following:
    

(a) This element of offence under s 229A (1) of the Code. Under this subsection, evidence must be adduced to establish that the prisoner engaged in an act of sexual penetration with a child under the age of 16 years old. In applying this element to the present case, the relevant documents that is the Statement of the victim’s mother stating that the complainant, Rose Max is her last daughter and that she was born in September 2006 although she cannot recall the exact date confirmed that the child was under the age of 16 years and at that the time of the incident was under the age of 12 years, then only 9 years old. Furthermore, the medical report dated 23^rd June 2015 do indicate that the victim is a young female child not yet matured. This is further confirmed by your own confessional statement, all documents that had been tendered into evidence by consent. Relying on those evidence, the count found that you had engaged in an act of sexual penetration with Rose Max, who was at the material time, a child under the age of 16 years then aged 9 years. This element of offence under s 229A (1) of the Code has been proven by the State.

(b) In relation to the element of offence under s 229A (2), where the child is under the age of 12 years, this is a factor that determines the severity of sentence and for this case, the child (victim) in this case is a child under the age of 12 years then 9 years at the time of the offence. The age of the child is not disputed.

(c) With regard to determining the element of offence under s 229A (3) of the Code, that is whether or not when the act of sexual penetration occurred there was an existing relationship of trust, authority and dependence between you and the victim under it is established you and the victim, Rose Max are first cousin (that is, your father and her mother are brother and sister). At the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child.

18. Overall, all the elements of s 229A (1) (2) (3) of the Code, have been proven and are applicable to your case. In that at the time of the offence, the victim Rose Max was under the age of 12 years, then 9 years old and there was existing relationship of trust, authority or dependency between you, the offender and the victim.
    

Submission on Sentence

19. Mr Ifina on behalf of the prisoner submitted that although the prisoner had pleaded guilty upon indictment to the charge of one count of sexual penetration break, enter and stealing an offence for which the maximum penalty prescribed under s 229A (1) (2) (3) of the Criminal Code Act (Ch No 262) subject to Subsection (2) imprisonment for a term not exceeding 14 years. He submitted that this is not the worst type case of sexual penetration and said that this case should be considered on its own set of facts and merits and referred to SCR No. 1 of 1984: Re Maximum Penalty PNGLR 418; Avia Aihi v the State [1982] PNGLR 92, Golu v the State [1979] PNGLR 635 and Ure Hane v the State [1984] PNGLR 105 in support of his submission. He submitted further that by operation of s 19 of the Criminal Code, the Courts have wide discretion to impose a lesser penalty and on that basis, this exercise of powers gives this Court wide discretion in making the maximum sentence discretionary. A number of case authorities were also referred to in support of his submission on sentence and some of these case authorities are referred to in this judgment.
    
20. Mr Ifina also urged this Court to also consider other factors in its determination of penalty which include the fact that the prisoner had pleaded guilty early saving court time and expenses to the State including the fact that this act was not pre-planned and the prisoner acted alone. He did not use any weapons to commit the offence. Furthermore, the prisoner is a first time offender with no prior convictions. He had cooperated well with the Police and is remorseful and has apologised for his behaviour to this Court, the victim and her family through this Court.
    
21. Mr Ifina submitted that this Court in the exercise of its discretion impose a prison term between 8 and 12 years however, deduct the period that the prisoner has been held in custody and consider suspension of the term of the sentence on conditions that the prisoner pay compensation in the sum of K1000.00 and food stuff to the victim within 3 months.
    
22. Ms Gore for the State; in reply, submitted that this is a case where, the prisoner had breached the trust that had existed between the victim as himself. He is in a position of trust and authority and the victim depended on him to protect her. They are blood relations. Instead of protecting the victim, he violated that trust and abused her sexually. This type of offence is prevalent. Ms Gore impressed upon this Court that such offence should not be allowed to go unpunished. There is an increase trench relating to offences relating to the abuse of vulnerable and innocent young girls, women, mothers and this Court should impose a custodial sentence as this would be seen as having a deterrent effect on offenders from re-offending and to others from committing such offences.
    
23. In addition, Ms Gore submitted that whilst the prisoner has stated that he is willing to pay compensation, there is really no genuine attempt or efforts made to do so nor there being any serious attempt made to reconcile or to pay compensation to the victim and her family. Furthermore, other factors which should be taken into account include the fact that there is age difference of the prisoner and the victim which is about 14 years. That is the prisoner is 23 years and the victim then 9 years old.
    
24. With regard to sentence, Ms Gore submitted that this Court has wide discretion under s 19 of the Criminal Code to impose an appropriate penalty; including discretion to also impose conditions as to the payment of compensation and to reconcile and make peace with the victims and their family.
    
25. Overall, Ms Gore submitted that there was a serious breach of trust because the prisoner and the victim who is a cousin sister and that there was an age difference of 14 years between the prisoner and the victim. This type offence is also becoming prevalent and a deterrent sentence must be imposed to protect vulnerable children despite a favour PSR. She submitted that the Court exercise discretion to impose a custodial sentence of 12 to 15 years as a deterrent factor.
    

Determining sentencing

26. "The general principle is that the maximum punishment should be awarded only in the worst cases." (see Maima v. Sma [1972] PNGLR 49 which quoted the principle applied in R. v. Harrison [1997] UKHL 5; (1909) 2 Cr. App. R. 94 where his Honor Prentice J also stated "The Court must not substitute its own opinion in regard to the possible inadequacy of the statutory range of punishment allowed it, but must act judicially within that range. In other words it could not impose the maximum punishment merely on the basis that the top limit is in its opinion inadequate." Also taken into consideration are the principles established in (SCR No. 1 of 1984: Re Maximum Penalty; Golu Golu –v- The State (supra); Avia Aihi –v- The State (No3) (supra) and Ure Hane v the State (supra) that each case should be considered on its own set of facts and circumstances.
    
27. The Court has considerable discretion whether to impose the maximum penalty or a lesser sentence under Section 19 of the Criminal Code. Section 19 of the Criminal Code provides among others, the following penalty that can be imposed: a shorter term may be imposed [subsection (1)(a)], a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (1)(b)], a good behavior bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d)], the offender can be discharged and the sentence postponed [subsection (1)(f)] or a part of or all of the sentence can be suspended subject to conditions [subsection (6)].
    
28. In this present case, the State relied on the oral statements of witnesses and the Police Record of Interview including your own confessional statement as evidence to corroborate the charge of sexual penetration of a child under the age of 16 years old which had been tendered into evidence by consent. Particular note is given to the medical report which concluded that injuries had been sustained by the victim and that this young child not yet matured; that there is trauma in the vagina; there had been forceful penile penetration of the vagina and there was evidence of deposit of semen in the vagina. Furthermore, you have by your own admission pleaded guilty to the charge.
    
29. The issue before the court is whether you should be sentenced according to the penalties prescribed under s 229A (1) (2) (3) of the Criminal Code Act (Ch No 262)? Mr Ifina submitted that the maximum sentence 14 years imprisonment, subject to s 19 is not applicable in this case because of a number of reasons and outlined these reasons to be as follows: Firstly, the facts of the case is peculiar and different thus this court should consider imposing sentence on a case by case basis and the maximum penalty should be reserved for only the very worst case type of sexual penetration of a child under the age of 16 years old citing the principles established in SCR No. 1 of 1984 (supra); Avia Aihi v the State (supra) and Ure Hane v the State (supra) to support his submission on penalty.
    
30. In applying this principle to the current case; this Court found the victim is a child under the age of 16 years old; that is she was under 12 years old then 9 years old when the prisoner engaged in acts of sexual intercourse with the victim on the 18^th of June 2015. This incident occurred within the prisoner’s home. Furthermore, there is an existing relationship of trust, authority or dependency. The prisoner and the victim are close blood relations; first cousins. The prisoner’s father and victim’s mother are siblings.
    
31. Whilst Dr Koimbu of Kainantu Rural Hospital was not called to give evidence, the medical report prepared by him and dated 23^rd June 2015 was tendered into evidence by consent. The Medical Report showed that Rose Max, nine year old child was alleged to have been sexually assaulted by a known male on Wednesday 18^th June 2015. The examination indicated tear from the vagina to clitoris and the vaginal opening was red and inflamed. Dr Koimbu’s conclusion in his medical assessment are outlined in [7 (c)] above.
    
32. By your own admission, you have pleaded guilty to sexual penetration of a child under the age of 16 years old who was then 9 years old, a young child who saw you as someone who stood in a position of trust, authority and dependency. That is someone who will protect her and not abuse her. Under the Criminal Code, such an offence attracts the maximum penalty subject to s 19 imprisonment for life. However, given that the maximum penalty is always reserved for the worst offences and every case is different therefore sentences very much depend on the circumstances of each case as established in (Golu Golu –v- The State; Avia Aihi –v- The State (No3) and Ure Hane v the State (supra))
    
33. This Court is therefore tasked to consider and determine an appropriate sentence to be imposed on you. In order to determine such a penalty, I have to firstly determine whether your case is such a case that warrants the imposition of the maximum penalty. This means that I would have to determine whether the facts of this case are so serious that the maximum penalty must be imposed, than I may take that into consideration and impose the maximum penalty. On the other hand, if the facts and circumstances of this case are not so serious, than this Court may consider imposing a sentence below the maximum penalty. Having stated all of the above, this Court also has a very wide discretion to impose a sentence below the maximum penalty under Section 19 of the Code based on proper judicial principles.
    
34. Other matters which are also taken into consideration when determining penalty include the Pre-Sentence Report and views of the community where you come from including the overall justice administration relating to sentencing principles and its objective in making our society safe and secure in which every man, woman and child is free to live and not be afraid. Whilst this Court notes that the Pre-Sentence Report is favourable to and that there is a willingness to pay K1000 compensation the victim and her family, it also recommends probation supervision and a non-custodial sentence.
    
35. Equally, important to the consideration of severity of sentence is the recognition that sexual offences are on the increase. More so, such offences occurred in family settings or situations where offenders in such cases stood in positions of trust, authority and dependency towards their victims. In order to address these problems, our law makers had introduced amendments to the Criminal Code by enacting the Criminal Code (Sexual Offences and Crimes Against Child) Act 2002 purposely to deal with such offences. This amendments also have prescribed tougher penalties for these offences and the circumstances of aggravation. This Court’s role in dealing with offenders who breached such laws are to give effect to the intentions of our Legislators (Parliament) and that is to impose appropriate sentences on offenders who breach this law and must be punished for their doing wrong. It is equally important for offenders to realize that such wrongs will not go unpunished and where warranted offenders are incarcerated to prevent them re-offending. At the same time and most importantly, the imposition of tougher punishment is seen as a deterrent to others so that they do not commit the same offence or (any other offence) that you have committed.
    
36. Counsels have assisted this Court in citing relevant cases in order to determine penalty and provided a table adapted from decided cases involving s 229A - Sexual penetration of a child under the age 16 years offences. I have in this regard, outlined a summary of these cases (in a table) below in this judgment to assist this court determine sentence.
    
37. Summary of Sentences imposed on s 229A – Sexual Penetration of a child under the age of 16 years.
    

38. The sentences imposed in the cases cited above ranged from a term of 2 years to 20 years imprisonment. In the case against you, you have admitted to the sexual penetration of a child under the age of 16 years, an offence under s 299A (1) (2) (3) of the Criminal Code attracts a maximum penalty subject to s 19, imprisonment for life. This Court is now tasked to determine whether it will impose the maximum penalty on you given the circumstances and facts of your case or whether it will impose a lesser penalty.
    
39. In order to arrive at a decision as to whether to increase or decrease the head sentence; I have taken into account the considerations which were identified in the case of State v Biason Benson Samson (2005) N2799 which is also a sexual penetration case (per Cannings J) and the rationale applied in that case and have adopted that rationale in determining sentence in this present case.
    
40. The relevant considerations are:
    
    1. Is there only a small age difference between the offender and the victim?
       
    2. Is the victim not far under the age of 16 years?
       
    3. Was there consent?
       
    4. Was there only one offender?
       
    5. Did the offender not use a threatening weapon and not use aggravated physical violence?
       
    6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?
       
    7. Was there no 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 police in the investigations?
        
    11. Has the offender done anything tangible towards repairing his wrong, e.g. offering compensation to the family of the deceased, engaging in a peace reconciliation ceremony, personally or publicly apologizing for what he did?
        
    12. Has the offender not cause further trouble to the victim or the victim's family since the incident?
        
    13. Has the offender pleaded guilty?
        
    14. Has the offender genuinely expressed remorse?
        
    15. Is this his first offence?
        
    16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
        
    17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
        

Rationale

41. The rationale here is that if the answer to any of the 17 considerations is answered in the affirmative that is “yes” than this answer would be regarded as a mitigating factor in your favour. On the other hand, an answer in the negative, that is a “no’ to any of the above considerations would be regarded as an aggravating factor against you. In situations where there is no answer at all, than this consideration will remain a neutral factor. Overall, if there are more mitigating factors then this will likely result in a more lenient approach and a reduction of the head sentence. However where there are more aggravating factors, then this will more likely result in the head sentence being lifted above the starting point.
    
42. Given that rationale, the process of sentencing is not governed by any definite process. It is a discretionary exercise and thus the weight given to all these considerations are not measured by a measuring tool. The standard of assessment given to any of the mitigating or aggravating factor depends entirely on the prevailing circumstances and facts of a case. For instance, in this case, the age of the victim and the age difference between the offender and the victim are important considerations. Where there is a small age difference, then this may be regarded as a mitigating factor.
    
43. Overall, where the victim is of tender age, then the offence is more serious. Also important to these considerations are whether there is consent or no consent. Whilst the absence of consent is not an element of the offence, this can still lead to an offender being found guilty of the offence (the State v Eddie Trosty (supra)) where there was real consent to sexual penetration. In a case where there was no consent; then this is a serious aggravating factor, particularly where a weapon (e.g. a bush knife) is used (the State v Kemai Lumou (supra)) or if there is aggravated physical violence or physical injury caused to the victim. It is also necessary to determine whether this is an isolated incident or part of a pattern of abuse (the State v Peter Lare (supra)) who was labeled a sexual predator.
    
44. Other matters which are also taken into consideration are the conduct of the offender and how the offence has been dealt with. Has there been any compensation and or reconciliation attempts made to express remorse for the wrong done and what are the personal circumstances of the offender and are there any other considerations which should be taken into account that have been overlooked and should be taken into consideration?
    

Application of considerations

45. I now turn to the application of those considerations to your case and answer these as follows:
    
    • (1) No – there is a large age difference. The offender was 23 years and the victim 9 years at the time of the crime, that being a difference of 14 years;
      
    • (2) No – the victim was of tender years well under the age of 12 years;
      
    • (3) No - there was no consent;
      
    • (4) Yes - the offender acted alone, not in a group;
      
    • (5) Yes - the offender did not use a threatening weapon and did not use aggravated physical violence;
      
    • (6) The medical report stated the victim suffered trauma in the vagina and that there was forceful penile penetration of the vagina. With regard to whether any sexually transmitted disease is passed to the victim, that fact is unknown as the result of a review to be done on the 17^th of July 2015 is not before this court;
      
    • (7) No - there was a relationship of trust, dependency or authority between the offender and the victim;
      
    • (8) Yes - this was an isolated incident;
      
    • (9) No - the offender did not give himself up after the incident;
      
    • (10) Yes - the offender did cooperate with police in the investigations;
      
    • (11) No - there is no evidence that the offender offered compensation to the victim or her family or of the offender engaging in a peace reconciliation ceremony;
      
    • (12) Yes - the offender has not caused further trouble to the victim or the victim's family since the incident;
      
    • (13) Yes - the offender pleaded guilty;
      
    • (14) Yes - the offender did express remorse;
      
    • (15) Yes - this is the offender's first offence;
      
    • (16) Yes - the offender is a youthful offender. He was 23 years old at the time he committed the crime;
      
    • (17) No - there are no other circumstances of the incident or of the offender that warrant mitigation of the head sentence.
      
46. While it is apparent that the list of mitigating factors and aggravating factors are the about same, these factors should not be seen as diminishing the gravity of your crime. You have committed a serious breach of trust, the age difference between you and the child does call for the need for you to protect this young child. Instead you have abused her sexually. On the same token, there is also that need to protect young vulnerable children from people like you. This is a factor that outweighs any mitigating factor in your favour and calls for a penalty to be imposed that is within the bounds of reason and principle of decency and trust. This type of offence and similar offences against children are on the increase and these calls for tougher sentences to be imposed to deter such detestable practice by men who have respect for human dignity and practice such disgusting acts on young children of tender age. Children who should be protected irrespective of whether they are your flesh or blood just to satisfy their sexual satisfaction. I wonder if he ever thought that his actions are very destructive to the young child’s life nor even considered that his actions were unlawful or that this incident will be repeated.
    
47. Out of the 17 considerations, there are 9 mitigating and 8 aggravating considerations. However that there is not much of a difference in number between the mitigating and aggravating considerations, it makes it all the more difficult to determine the issue of penalty. Particular attention is however given to the age difference (14 years) and the most alarming of all is the fact that the offender stood in a position of trust, authority and dependency. This court also noted that the offender has a young child of his own, aged 3 years old. He is a parent and as such is expected to show greater compassion and protection of his own blood let alone, young vulnerable and innocent children of tender age. Instead he committed this despicable act on this 9 year old girl, a very close relative.
    
48. In his confessional statement he stated that he was tempted by the evil spirit. The offender has pleaded guilty to the charge, expressed remorse and asked that he be placed on probation. Having considered all of the above and in determining penalty, I am convinced that the aggravating factors are significant such as to warrant an increase in the starting point. I also find that the mitigating factors also are adequate to balance the sway from the aggravating factors and I fix the head sentence at 17 years.
    

The next question is “Should all or part of the head sentence be suspended?

49. Counsel for the prisoner submitted that this Court suspension of the sentence either partly or wholly after passing sentence. Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report as held in the case of the Public Prosecutor –v- Done Hale (1998) SC 564). This court notes that the prisoner is 23 years, has a wife and a young child. A case on this similar charge is that of The State v Tiama Esrom (2006) N3054, in which the Court suspended 2 years from a head sentence of 12 years imprisonment imposed on the offender who pleaded guilty on a similar charge. He was between 50 and 60 years old. The balance of 10 years sentence was served in prison.
    
50. Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships (Public Prosecutor –v- Tardrew [1986] PNGLR 91). For your case, the PSR favourable. Whilst this court agrees that some form of punishment be imposed as a deterrent factor, there is also a necessity to encourage reconciliation and peace between the parties. This will be seen as a reinforcement of the prisoner’s genuineness of being remorseful.
    
51. This court’s approach (my view) as expressed in the case of the State v Albert Kavena (CR No.1444 of 2014) (21 September 2015) (Unreported; I echoed the sentiments that “the traditional form of compensation payment is important to maintaining peace and harmony within families, communities and the public at large. This is a gesture that should be voluntary and not Court ordered. It indicates a genuine show of remorse for the harm occasioned on a victim” and similarly in the State v Epo Matao (CR NO. 168 OF 2015) (21 of September 2015) Unreported which also reinforced the view that “payment of compensation is a means through which an accused or offender says ‘sorry’ to the victims and their families. This act of goodwill must be done voluntarily (‘willingly’) by the offenders/accused”. However this Court is also aware that payment of compensations is also dependent on the circumstances of each and every particular case.
    
52. A number of factors will have to be taken into account and these relate to the mitigating and aggravating factors that either go in your favour or against you. Furthermore, the payment of compensation in this case would not in any way, compensate for the trauma that the young victim has endured. Besides, even when these parties are closely relatives, it appeared that no genuine attempts have been made by parties to reconcile nor express genuine and real remorse for the crime perpetrated on the young child. As I have already expressed in a recent judgment on the State v Albert Kavena (CR No.1444 of 2014) (21 September 2015) (Unreported)), “...payment of compensation should be an expression of genuine remorse and should be a voluntary; not court ordered...”
    
53. By reasons of all the matters discussed above, I sentence you to 15 years imprisonment less the period of 8 months that you have been held in custody. You will serve the balance of the term of sentence of 14 years 3 months 22 days in custody at CIS, Bihute.
    
54. None of the sentence is suspended.
    

Orders accordingly

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