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State v Panut [2019] PGNC 103; N7787 (4 April 2019)

N7787

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 135 OF 2017

THE STATE

V

HENRY PANUT

Kokopo: Susame, AJ
2019: 4^th April

CRIMINAL LAW – Sentence After Trial - Offence – Sexual Penetration Of A Girl Under 16 Years Of Age With Circumstances Of Aggravation – S. 229a (1)(3) Of Criminal Code (Sexual Offences And Crimes Against Children) Act 2002

CRIMINAL LAW – Aggravating Factors Far Outwieghed Mitigating Factors – Prisoner 31 Years Of Age – Victim 14 Years Of Age – 17 Years Age Difference – Prisoner An Uncle To The Victim – Breach Of Relationship Of Trust, Authority Or Dependency – No Reconciliation –Nothing Tangible Done To Compensate Victim – Abuse Of Alcohol – Mitigating Factors- First Time Offender - No Pregnancy – No Sti Contracted – No Weapons Used - Lone Perpertrator – Isolated Incident.

CRIMINAL LAW – Sentencing Range – 15 -20 Years– Effective Sentence 18 Years Imprisonment – No Special Or Extenuating Circumstances To Justify Partial Suspension – No Order For Compensation – Order Made For Prisoner To Attend All Reformation/ Rehabilitation And Church Ministry Programs In Prisoner While Serving His Term.

Cases Cited:

Goli Golu v The State [1988-89] PNGLR 653
Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510
Veen v The Queen (1979) 53A.L.J.R 305
R v Hodgson (Unreported Judgment) SC 137 25 October 1978
Stanley Sabui v The State [2007] PGSC 24; SC866
The State v Lemek Jubin (2018) N7523,
The State v Andrew Pora [2019] PGNC 14; N7672

Counsel:

Miss. J. Batil for the State
Ms. Pulapula, for the Prisoner

DECISION ON SENTENCE

04^th April, 2019

1. SUSAME AJ: Prisoner was convicted after trial on 01 March 2019. Decision on sentence was deferred which is being delivered.
   

Facts

2. Facts are found in the judgement on verdict delivered after trial. Basic facts found in judgment will be relied on for sentencing of the prisoner.
3. The prisoner is a cousin to complainant’s biological father. He would be regarded as an uncle (blood relative) to the complainant. Therefore, there exists an uncle niece relationship between the two. The prisoner was 31 years of age when he committed the offence. His niece was then 14.
4. The prisoner had been drinking with his friends at his house the previous night till morning of 6 April 2015. At about 8:00am he decided to leave his friends to go to the nearby shop in the community to buy himself a coke and cigarette. He walked down the road that runs close to Brigit’s (complainant’s aunt) house.
5. As he approached the house he saw his niece and her girlfriend playing a card game outside. The prisoner approached them and got hold of his niece from behind. He asked the girls to go to the store but both refused. With aggression the prisoner pulled his niece into the house and locked the door from inside. Therein, he forced his niece onto the ground. Then he proceeded to remove her clothes and his own clothes. The prisoner slept onto of her and insert his penis into her vagina and had sex with her. After the first round he sexually penetrated her second time. His niece pleaded with him to let go of her but to no avail. Fortunately, her other Uncle Francis Gaius who had been alerted came to her rescue shortly after. He kicked opened the door and took the girl out of the house to safety. The girl was medically examined same day. Notable injuries found were that she had a bruised hymen with blood stains and whitish vaginal discharge.
   

Prescribed Penalty

6. The mandatory prescribed penalty for the offence involving sexual relations between family members or close blood relatives in breach of relationship of trust, authority or dependency is subject to s 19, imprisonment for life. [s 229A (3)]
   
7. With regard to maximum penalty it is the general principle of sentencing it should be reserved for the most serious instances of an offence, the worst possible cases normally encountered in practices. (Goli Golu v The State [1988-89} PNGLR 653). That is to uphold the fundamental principle that sentence must be proportionate to the crime committed or sentence must fit the crime. The courts have a wider discretion to impose a penalty lower than the maximum by invoking s 19 sentencing discretion. (Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510).
   
8. What factors should the court look for in a case to justify the maximum penalty?
   
9. Mason J in Veen v The Queen [1979] HCA 7; (1979) 53 A.L.J.R 305 at p.309 stated:
   

“The court imposes a sentence of life imprisonment on taking into account of the Offender’s record, his propensity to commit a violent crime, the need to protect the community and the very serious offence of which he stands convicted...”

10. To justify a life imprisonment sentence, the Court of Criminal Appeal (Lord Denning M.R Widgery and MacKenna JJ) in R v Hodgson, Unreported Judgment S, C, 137 25 October 1978) laid down the following conditions:
    

“1. Where the offence or offences are in themselves grave enough to require a very long sentence;

2. Where it appears from the nature of the offence or from the defendant’s character that he is a person of unstable character likely to commit such offences in the future; and

3. Where if the offences are committed the consequences to others may be specifically injurious, as in the case of sexual offences or crimes of violence.”

11. The above conditions were endorsed by the Supreme Court in Goli Golu v The State (supra). The conditions are lacking in this particular case so maximum penalty is not being considered.
    

Characteristics of the Offender

12. Prior to counsels addressing the court on sentence, the prisoner was given the opportunity to be heard first. He said he respected the court and the people. Court has found him guilty and hand down its decision. He accepts that. He said in God’s eye’s he is innocent. For that reason, he refused to sign the record of interview. He respects the mother law (Constitution) of the country. He is of mix parentage of Tolai and Morobe parents. He is the first born in the family. His parents are old. He is married and has 2 children. He lives with his parents and support them. He has 5 brothers and 3 sisters. That was all he said.
    
13. The means assessment and pre-sentence reports provided further information about the prisoner and views expressed by the prisoner’s father and the victim’s father. The author of the reports provided his brief assessment of the prisoner. He was of the opinion the offender was a potential risk to others in the community and that release of the offender on probation was not recommended.
    
14. My remarks on the pre-sentence report. The report is brief and shallow. It does not capture the victim’s view and other respectable members of the community who may be quite familiar with how the prisoner conducts himself in the community. Is he known for anti-social behaviour in the community? Has he been in trouble with the law before but never been arrested and brought to court? Only when such information is provided of the prisoner author will be in a better position to justify his assessment of the prisoner. That said though, the report is unfavourable to the prisoner for probation to be considered as an alternate.
    

Sentencing Guidelines

15. Guidelines in sentencing of offenders in all sexual offence cases were laid down by the Supreme Court in Stanley Sabui v The State [2007] PGSC 24; SC866. These guidelines are frequently used by the courts. They 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 the police in their 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 and reconciliation ceremony, personally or publicly apologizing for what he did?

12. Has the offender not caused 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? Ans. Yes, but no

reconciliation.

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?

Factors in Mitigation and Aggravation

16. First the characteristics in prisoner’s favour. Prisoner does not have prior convictions. He was the only perpetrator. Offence was committed during the day. No weapons were used. It was an isolated incident.
    
17. Other than that all other factors weigh heavily against the prisoner.
    

Comparable Judgments on Sentence

18. Examination of the type of sentences imposed by the courts in recent times is valuable. They are invaluable to show the current sentencing trend by the courts. Not only that but also there is parity or uniformity in sentencing. It also puts the court into perspective in the proper exercise of judicial discretion. That said though no past sentence should put restrictions on the court from free exercise of its unfettered powers in deciding a sentence in a case under consideration.
    
19. Of course each offender is sentenced in accordance with its own merits taking into account all relevant factors some of which have been considered above. Some other factors that are often considered are: seriousness of the offence, prevalence of the offence, greater interest of the community etc. That no offender is punished severely than the merits of the crime and his or her personal characteristics. That is to say sentence must be proportionate to the crime.
    
20. Counsels have assisted the court with a number of cases from the large volume of decided cases. I have considered them all though I will not list them.
    
21. What is worth noting by each and every one of us is that there is an upward trend in sentencing of sexual offenders in our jurisdiction in this day and age. Sentences imposed vary from 10 years to 18 years in the cases. There are few decided cases over and above 18 years sentence.
    
22. In a recent case of The State v Andrew Pora [2019] PGNC 14; N7672 (14 February 2019) the prisoner was sentenced after trial on a charge of persistent sexual abuse/penetration of his very own biological daughter over period of two years. His Honour Salika CJ presiding examined the types of sentence in few decided cases in the National Court. Sentences varied from 20 years, 25 years, 26 years and 28 years. Guided along by those judgments the court sentenced the prisoner to 30 years prison term.
    
23. In the cases His Honour Salika CJ made reference to prisoners were convicted and sentenced for offence of persistent sexual abuse/penetration over period of time in breach of relationship of trust, authority or dependency between close family members. The present case being decided is different.
    
24. The message is clear. The world community and PNG Society is against all forms of sexual abuse and violence against children and women. That is being demonstrated by the courts who hold in trust the judicial power of the people in the punitive lengthy sentences that are being imposed.
    
25. It is no longer a matter of judicial rhetoric. Courts are coming down hard on perpetrators of such detestable crimes. All for the common good and protection of our womenfolk and children. That they must feel they are being protected by the law against male aggressors. Their basic right of protection of the law against all forms of abuse and violence and is guaranteed by the Constitution. Come to think of it, it is even worse and aggravating when sexual relations occur between close family members as is in this particular case. It simply goes against good conscience and logic; it offends Christian values and customary values. The offence no doubt is predominantly prevalent in East New Britain Province.
    
26. The Supreme Court in its deliberation on an appeal in Stanley Sabui v The State (supra) expressed:
    

“In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that the sexual penetration of children under the age of 12 years is the more serious, hence the larger penalty. .... We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than the 15 years imprisonment.”

27. I shared similar strong sentiments in The State v Lemek Jubin (2018) N7523, when imposing a 17 years prison term on an adult prisoner who sexually penetrated an 8 year old girl. The significant difference is that there was no existing relationship of trust, authority or dependency in that case like the present case.
    
28. Aggravating factors far outweigh the mitigating factors in this case. Prisoner got himself intoxicated with alcohol the whole night. He came upon the two girls and because he was under influence of alcohol he used aggression and forcefully pulled his niece away from her friend into the house. He locked the door from inside and sexually penetrated her twice without her consent. As a matter of fact, prisoner raped her.
    
29. At no time he expressed any remorse verbally or tangibly to his niece and her immediate family. He still thinks he is innocent of any crime. The reality is that he has been lawfully convicted and he stands to be sentenced by the people through this court.
    
30. As I allude to earlier in the judgment facts that would justify the maximum life sentence are not present in this particular case. In my considered view sentence should fall between 15 years and 20 years with the aim for personal and general deterrence. The prison term should also provide an opportunity for prisoner to participate in the rehabilitation and transformation programs run in prison. A specific order to that effect is necessary rather than leaving it open for the prisoner to decide.
    
31. Accordingly, prisoner is sentenced to 18 years imprisonment with hard labour. Next question. Should the court suspend portion of the sentence? Section 19 provides residual powers of the court to make such an order. I am reminded though exercise of that discretion must be done properly and not capriciously or arbitrarily.
    
32. Are there special considerations, factors or extenuating circumstances in this case to justify a suspended sentence? Needless to say there are none. Finally, but not the least, compensation order is not being considered (even though prisoner and his father had indicated to pay some form of compensation) firstly because victim’s view was never obtained. And secondly, the victim’s father is not willing to accept any form of compensation.
    

Summary

1. 18 years imprisonment term imposed.
2. Pre-trial custody period to be discounted.
3. The balance of the sentence to be served with hard labour at the Kerevat Goal.
4. Further I order that the prisoner attend all rehabilitation/reformation programs run by the Goal Command including Christian Ministry Programs while serving his sentence.
5. No further orders made.

____________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Prisoner