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State v Glemus [2017] PGNC 239; N6901 (11 August 2017)

N6901

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR No. 875 OF 2014


THE STATE

V

SAVINGU GLEMUS
Kimbe : Miviri AJ
2017 :11th August


CRIMINAL LAW- PLEA - Sexual Penetration S229A (1) (a) CCA - victim 15 years 7 months old – pregnant - offender 24 years old - early admission - compensation K5000 & pig paid -offender willing to look after child born - sentenced to encourage reformation rehabilitation –custodial - non custodial.

Facts
Prisoner had sexual intercourse of the victim leading to pregnancy
Child 3 years old at sentence.
Victim mother new marriage
Welfare of child
Prisoner father intent to look after child


Held


Responsibility by Prisoner
8 years IHL time in custody deducted
Balance suspended on Probation order.


Cases cited:
The State v Apusa, [1988-89] PNGLR 170 (22 May 1989)
The State v Chadrol [2011] PGNC 211; N4648 (23 May 2011)
The State v Hindemba [1998] PGSC 48; SC593 (27 October 1998)
The State v Meaoa [1996] PNGLR 280 (11 August 1995)
The State v Peter Lare (2004) N2557
The State v Rudy Yekat. (22/11/00) SC665.


Counsel:
D.Kuvi, for the State
B Popeu, for the Defendant

SENTENCE

15th September, 2017

  1. MIVIRI AJ: This is the sentence of a 24 year old man who had sexual intercourse repeatedly with a girl who was 15 years 7 months old.

Background facts

  1. Prisoner was a 24 year old man who had sexual intercourse with the victim 15 years 7 months old on the 14th July 2013 at Buvussi and she became pregnant as a result. She delivered a child 3 years old at time of sentence.

Law


  1. The indictment was preferred under section 229A (1) (a) of the Criminal Code which read: “"(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."

(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."

  1. I agree and adopt the views expressed in the State v Chadrol [2011] PGNC 211; N4648 (23 May 2011) where the combined effects of sections 213 and 216 were groomed into the new section 229A:

“To impose a sentence that as much as possible meets the seriousness of the offence, it is useful to start with the maximum prescribed penalty in mind, and next consider the circumstances of the particular case in line with the current sentencing tendency of the court for similar type offences. The use of a sentencing 'scale' or 'range' as a guide in this exercise is preferred because 'starting points' gives the impression of an inflexible sentencing option. It also makes sense to use a structure of ranges of sentences related to the variations of the particular offence most commonly encountered in practice. A sentence that falls outside the permitted range may on appeal be considered inordinately low if it is below the lower range or manifestly excessive if it is over the top range.”


He was considering what sentence should be passed upon a 16 year old who had consensual intercourse with a 13 year old girl. He settled for 6 years IHL wholly suspended.


  1. I consider in accordance with the proposition of State v Chadrol (supra) of the use of sentencing 'scale' or 'range' as a guide and Apusa, The State v [1988-89] PNGLR 170 (22 May 1989) in this regard and I adopt and cite what his honour sets out there;-

“ Acts of sexual intercourse under s 216 between “young lovers”, that is where both parties are of a similar age but under 16 years old, would be in the lower part of the sentencing range. Also, in the lower portion of the permissible range would be those offences committed by young men on girls who are between 14 and 16 years old. When dealing with young offenders the discretions under s 19(1)(f) of the Criminal Code and the Probation Act (Ch No 381) are always relevant, and there may be cases where it is not appropriate to proceed to conviction, but simply to discharge. This is so, in my view, where young participants are involved in those societies of Papua New Guinea in which heavy courting is the norm, and the custom allows a certain amount of sexual licence amongst youngsters, even though older people may formally remonstrate and express moral indignation. Another circumstance which could lead to a discharge without conviction is where the offender is disabled or physically or mentally handicapped and the victim was a consenting party.


  1. The middle of the sentencing range should be reserved for those cases in which mature men offend, without any circumstances of aggravation, and the upper part of the sentencing range should be for those cases in which there are aggravating circumstances. Where there is a relationship of trust or dependency between the accused and the victim there are circumstances of aggravation. The relationship of teacher and pupil is an example. Parents put their trust in the school system when they send their children to school; they do not expect the teachers to sexually abuse their pupils. This factor is particularly relevant in those provinces of Papua New Guinea where girls have been held out of school because of traditional beliefs that schooling will disrupt a girl’s marriage prospects. Formal education is now well recognised as being a vital component in the on-going process of the liberation of women in the Third World, and the criminal law should be used when appropriate to support the State’s objectives in providing educational services to women.

There are other relationships of trust which in my view constitute circumstances of aggravation in these cases. For example, within the medical profession, the relationship between doctor, paramedic, nurse and patient. It is within this broad category of trust and dependency that offences committed by “step-fathers” or “uncles” should fall, for the relationship between a step-father or “uncle” and a young girl may be one of complete confidence and love -- and to break that bond sexually may not only subject the victim to psychological damage, but is a betrayal, a form of personal treason.


Similarly, the defilement of mentally handicapped girls and women may give rise to a breach of trust, although it is now recognised that the handicapped have the right to a sex-life in the same way as all other persons over the age of 16 years. This is a difficult area because there has been a great deal of change in community attitudes since the late nineteenth century when the Criminal Code was formulated.


In summary, the lower portion of the range would go up to about 20 months; the middle of the range would be between about 20 months and 40 months; and the upper portion of the range would be between 40 months and 60 months.”


  1. Applying the categories that Acting Justice Brunton sets out in Apusa, The State (supra) to the facts of the case here, this is a case where he is a young man aged 24 years old and she is 15 years 7 months old where suspension of the sentence is encouraged invoking section 19 of the Code. It also means the application of the Probation Act. Here in accordance a presentence filed is in his favour recommending him suitable for probation supervision.

Maximum Sentence

  1. The maximum sentence here given the facts and circumstances was imprisonment for a term not exceeding 25 years. Which is a very wide discretion, exercise of which is dependent on the drawing of a balance between the aggravation as well as the mitigating facts of the case. Included here too are whether or not there are extenuating or special circumstances. The prisoner made initial early admissions to Police on the 19th March 2014 when he was questioned by Police in a record of interview which he confirmed by this guilty plea on the 11th August 2017 before me. Application was made by defence counsel for a presentence report to be prepared to assist the court. I ordered the preparation of a presentence and means assessment report to be furnished to me in consideration of an appropriate sentence. That report has now been filed 21st August 2017 and is in favour of the prisoner as a suitable candidate for probation. The prisoner has also paid K5000 in cash and a live pig to the parents and the relatives of the victim witnessed by the Arresting officer. The parents of the victim acknowledge payment of the K5000 and the live pig paid June 2017. Reconciliation was done during this time there are no grudges between both families. She has given birth to a child now 3 years old and the prisoner has indicated to look after the child should he be released on probation. As at the date of this sentence the prisoner is 25 years old originally from Waikamuku, Maprik East Sepik Province. He does not have any prior record with the law. The victim was 15 years old and became pregnant as a result of the act. Though consent is not an element of the crime it appears she had contributed to the crime in the end. The presentence report confirms that she is now married to another man. She has settled down in life. As to the fate of the child from that union there is nothing in the pre-sentence report except that the father of the offender wants the offender to be released to look after that child. Which is a very genuine concern in view of the fact that she is now settled in life with another man.
  2. Prisoner has been in custody awaiting this matter since 17th February 2014 which is 3 years 6 months 3 weeks which period will be deducted from any head sentence passed. He pleaded guilty. He was looked after by the parents of the victim when he turned around and committed the offence in breach of the trust that they had placed on him. The fact is he could not have continued without detection of the matter at an early stage without the victim drawing out the matter there and then to the parents. It only came to light because of the pregnancy that culminated. So in all fairness the victim had a big part to play even though the section is intended to protect young girls from themselves. The age gap is 10 years his plea has saved her from coming into court and giving evidence in front of strangers reliving the matter. The prisoner has not waited for a formal court order to right what he has wronged. It is a genuine attempt to settle the matter. And then he has subjected himself to the law. And this is evidenced out by the Probation report that has been filed particulars of which I set out above.

Extenuating circumstances


  1. He was the older of the two and should have exercised control in his behaviour. The act was repeated leading to the pregnancy that culminated. At the time of the sentence the child was 3 years old resident with the grandparents. This child was the immediate result of the act and responsibility to bring him or her up properly could not be brushed aside by concentration on the mother and the father alone. Justice was for all in the matter not select. Here the presentence report highlighted that the victim mother had now settled in life with a new man in marriage. It could not ignore this fact but sentencing should take account so that responsibility for the life that came into being was stressed.
  2. With the mother out it left the father to seriously look at the upbringing of the child. Concern was rightly expressed by the father of the prisoner that he should bear responsibility for that child. The payment of compensation had set straight what had come out between him and the mother victim. To ignore and to send the prisoner defendant to further time in jail would not be justice for the child who had no voice to come into the world. He was an innocent person who should not suffer.
  3. Each case was dependent on the facts before it and justice was served on the facts circumstances there not without. Here the prisoner has indicated positively apart from the payment of compensation made to look after and to care for the child the result of the act that he has set about to commit upon the victim mother. "There is no evidence of the Appellant compensating the victim and or her family in any way for the pain and suffering he brought upon them. He says sorry but what value does a mere utterance of sorry has if it is not accompanied by anything tangible to correct the wrong brought upon the victim and her family and relatives. In our view such utterance are mere utterances, which do not have any real meaning but spoken only in a bid to plead for mercy." Rudy Yekat v. The State (2000) SC665. This is a tangible achievement that must be encouraged by the sanction of the court. It is not a mere utterance to avoid the full impact of the law upon him, but responsibility he has voiced to take a good sign showing a turning around from the wrong committed. Addressing is serving reformation and rehabilitation a necessary component of any process of sentencing. State v Peter Lare (2004) N2557
  4. This is not a case where the prisoner has satisfied his sexual urges and then discarded the victim to bear the consequences that has flowed from it, so much so that it is now the responsibility of the court to enforce with a custodial term. Meaoa v The State [1996] PNGLR 280 (11 August 1995); Hindemba v The State [1998] PGSC 48; SC593 (27 October 1998). Where the aggravation has outweighed the mitigation the court has gone to impose strong punitive and deterrent sentence against, but where mitigation has outweighed the court has encouraged at reforming and rehabilitating the prisoner and these have been based on proper materials filed and set out above and before the court in so acting.
  5. Accordingly you are sentenced to 8 years IHL. I order that time spent on remand of 3 years 6 months 3 weeks is deducted forthwith. The balance of 4 years 5 months 1 week is suspended on a probation order for the same period of 4 years 5 months 1 week on the following conditions:-

Ordered accordingly.
__________________________________________________________________

Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Defendant

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