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State v Frank [2019] PGNC 138; N7838 (7 May 2019)

N7838

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 607 OF 2016

THE STATE

V

ROMMEY FRANK

Alotau: Toliken, J
2019: 07^th May

CRIMINAL LAW – Sentence after trial – Sexual penetration of child under 16 years of age – Victim and prisoner closely related – Victim 3 months and 28 days shy of the age of consent – Aggravating factors including pregnancy & termination of education, breach of trust, use of force and prevalence of offence considered – Mitigating factors including nil priors, youthfulness, prior good character and lack of sophistication considered – Need for deterrence –Appropriate sentence – 9 years less time in custody – Suspension not appropriate – Criminal Code Ch. 262, ss 229A(1).

Cases Cited:

Avia Aihi v The State (No.3) [1983] PNGLR 92)
Goli Golu v The State [1979] PNGLR 653
Saperus Yalibakut v The State (2006) SC 890
The State v Pastin (2014) N5623
The State v Eric Puropuro (2014) N5959
The State Langer Tonu; CR 405 of 2013 (Unreported and unnumbered judgment dated 04^th October 2016)
The State v Rommy Frank; CR 607 of 2016 (No.1) (Unreported and unnumbered judgment dated 19^th October 2018)
Utieng v The State; SCR 15 of 2000 (Unnumbered judgment dated 23^rd November 2000)

Counsel:

L Rangan, for the State
P Palek, for the Prisoner

JUDGMENT ON SENTENCE

07^th May, 2019

1. TOLIKEN J: Romney Frank, on 19^th October 2018, I convicted you after trial for one count of sexual penetration of a child under the age of 16 years in contravention of Section 229A (1) of the Criminal Code Ch. 262 (the Code).You were charged that on 22^nd July 2015 at Kaloi Hamlet, Ahioma, Alotau District Milne Bay Province, you sexually penetrated one Nori Paliau, a child under the age of 16 years.
   
2. For various reasons I was not able to administer the allocutus and hear submissions until 18^th February 2019. You now return to Court today for your sentence.
   

FACTS

3. The brief facts for the purpose of sentencing you are these. You and victim Nori Paliau are related and had lived together at your family hamlet at Kaloi outside of Alotau Town. The victim is your mother’s first cousin sister. Her mother and your maternal grandmother are biological sisters. The victim and her family moved back to the village from Kimbe in 2012 when the complainant was 12 years old and she enrolled at the Lelehoa Primary School. In 2015 she was doing Grade 7.
   
4. On Wednesday 22^nd July 2015 at about 1.00p.m the victim was on her way to the river to have her bath. She saw you in your house and asked for betel nut. You said you had one. The victim asked if she could have it and then went up to get it from you. You, however, told her that you had left the nut in your room. You told her that you were feeling sleepy and asked her to go up and get the betel nut from you. And so she climbed up and you walked to the room to get the betel nut. She asked you to throw the betel nut down to her but you threw the betel nut just next to your room instead.
   
5. When she went to pick it up you grabbed her by the right arm. She asked you what you were doing and you told her that you wanted to have sex with her. She replied “Are you sick in your brain? Wanem samting i kamap long head bilong yu?” She struggled to get away and managed to get free and ran to the other side, but you blocked her way and grabbed her again, and pulled her back into the room amidst her struggles. You overpowered her, removed her clothes and inserted your penis into her vagina. By then she was weak. After penetrating her you looked at her and laughed and walked out.
   
6. The victim was too embarrassed to tell her mother and it was not until she was 7 ½ months pregnant that she revealed the matter to her. That was after your mother had questioned her (victim). The victim had to leave school soon after that. At the time of the offence she was 15 years 8 months and 2 days old (See The State v Roomy Frank; CR 607 of 2016 (No.1) (Unreported and unnumbered judgment dated 19^th October 2018) for my judgment on verdict)
   

THE OFFENCE

7. Section 229A (1) of the Code relevantly provides for the offence in the following terms:
   

229A. Sexual penetration of a child.

(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.

8. Despite the fact that there may be a relationship of trust between you and the victim, this was not pleaded in the indictment, therefore you may only be sentenced to a period of imprisonment not exceeding 25 years.
   
9. While that is the maximum penalty, it does not necessarily follow that you will get the maximum because where a maximum penalty is prescribed (as normally is the case) it is usually reserved for the worst instances of offending. Each case must also be visited with a sentence that is appropriate to the circumstances of that case. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92)
   

ISSUE

10. So is this a worst case of sexual penetration of a girl under the age of 16 years? At the outset I must say that it is not. Hence I must impose an appropriate sentence for you befitting the circumstances of your case, which essentially is the issue to be determined.
    

ANTECEDENTS

11. You are now 24 years old and come from Kaloi Hamlet, Ahioma, outside of Alotau Town. You were 22 years old when you committed this offence. You are single and are the first born in a family of two siblings. Your father is deceased but your mother is still alive. You are a member of the Kwato Church and were educated up to Grade 5 only. You are a first time offender and have now been in pre-trial/sentence detention for a period of 3 years 1 month and 8 days.
    

ALLOCUTUS

12. You apologised for your offence and also apologised to the victim and her family. You said that your mother had been finding it difficult to fend for herself and your only brother since your incarceration. Your grandparents are old and also depend on you for support. You asked for probation or a bond for good behaviour.
    

MITIGATING FACTORS

13. I find the following mitigating factors in your favour:
    
    • You are a first time offender.
    • You were of prior good character.
    • You are a youthful offender.
    • You have a very low level of formal education and despite being exposed to modern life given the close proximity of your village to town you are essentially a simple unsophisticated villager.
    • You did not occasion bodily injury on the victim.
    • The victim was 3 months and 28 days shy of the age of consent.
      

AGGRAVATING FACTORS

14. However, against you are the following aggravating factors:
    
    • The victim is a close relative of yours. She is your aunt in that your mother and the victim are maternal first cousins, which, in your society is a very close relationship. Even though she is your aunt you were older than her hence a certain degree of trust, authority and dependency was reposed in you. This was, however, not pleaded as a circumstance of aggravation in the indictment hence I treat this as an ordinary aggravating factor only.
    • There was some force involved.
    • Pregnancy resulted. You denied being the father of the victim’s child. That would normally be taken in your favour without proof to the contrary by the State, and if your denial was not just a bare denial according to the principle in Saperus Yalibakut v The State (2006) SC 890. While it was suggested in evidence in your defence that the victim had a boyfriend from Mutuyuwa, the alleged boyfriend was not named nor was there anything said about when they would have had sex. On the other hand Dr. Grace Kariwiga, whose medical report was tendered into evidence by consent, expressed her expert opinion that since the reported sexual intercourse between you and the victim was in July 2015 the victim would have expected to deliver around 17^th April 2016, that is 9 months from conception which is the normal gestation period for humans. That is sufficient for me to conclude that the child is yours.
    • The victim’s education was disrupted which has a disastrous effect on her prospects of a better life from a good education.
    • Your forcing a trial (which of course is your right) has unfortunately forced the victim to relieve her ordeal in court.
    • This offence is very prevalent.
      

PRE-SENTENCE REPORT

15. Your presentence report (PSR) is a balanced one even though non-committal. The author essentially left it to the Court to impose an appropriate sentence for you. Yours and your support group’s views and those of the victim and her support group are captured well. Community leaders such as Pastor Lucas Gabia, Village Court Magistrate Duwoku Manuega and Simon Timo the Manager for Milne Bay Cricket vouched for your prior good standing in your community and have expressed willingness to assist in supervising you should you be given probation.
    
16. Your families are, however, divided. While your support group supported a non-custodial sentence for you, the victim and her mother do not. They are still very bitter about your conduct and want you incarcerated. They are not even amenable at this stage to the idea of reconciling with you. Their attitude is understandable, because of closeness of your relationship with them. Your offence has driven a wedge between the extended family unit and it will take some time for the family to heal. That this is not easy can be seen from the fact that even after 3 years since you were arrested the two families are still bitter and appear to have dug in and entrenched their positions.
    

SUBMISSIONS

17. Your lawyer Mr. Palek submitted that you ought to be given a sentence in the range of 3 – 6 years because of your mitigating factors and the fact that this is not a worst offence.
    
18. Mr. Rangan, on the other hand submitted that this is a very serious offence as the victim’s education was interrupted when she got pregnant and there was breach of trust. A strong punitive and deterrent sentence therefore ought to be imposed. Mr. Palek objected to the State’s submission that you are the father of the victim’s child on the basis that the issue of paternity was not tried. I have addressed this issue already in my discussion on your aggravating factors and I need not say anything more on that.
    

SENTENCING TREND

19. What has been the sentencing trend for this type of offence? The law reports are replete with reported and unreported and unnumbered judgments for this offence. I need only to refer to a few of mine here in Alotau which your lawyer cited in his submission.
    
20. The State v Pastin (2014) N5623: There the offender (aged 18 years) and the victim (aged 15 years and 10 months) were in a relationship. The victim was doing Grade 7 at Boilave Primary School, Suau, Alotau District. On the date of the offence they met behind the victim’s parent’s house in the night for a chat and then later moved into the nearby bushes and had consensual sexual intercourse. The victim became pregnant and her education was terminated as a result. I sentenced the offender on his guilty plea to 5 years imprisonment less time in custody. None of his resultant sentence was suspended.
    
21. The State Langer Tonu; CR 405 of 2013 (Unreported and unnumbered judgment dated 04^th October 2016): The offender there pleaded guilty to sexually penetrating the victim who was 15 years 10 months and 18 days. They were in a boy/girl relationship. The offender had approached the victim as she was bathing in the sea. Upon seeing him the victim waded ashore and they moved to a secluded spot along the beach and had consensual intercourse. The offender pleaded guilty, was a first time offender and there was an element of consent involved. The victim was also less than two months from the age of consent. I sentenced to 5 years less time in custody. None of the balance was suspended.
    
22. The State v Eric Puropuro (2014) N5959: There the offender was 35 years old and his victim 13 years old. He pleaded guilty to two counts of sexually penetrating the victim on two separate occasions over two successive days but within a period of 24 hours. The offender met the victim on the road one evening and took her to his house and had sex with her. Then the next morning he had sex again with her. The victim was sexually active under at 13 years and already had a baby. She was a destitute child whose parents had simply abandoned her to her wayward ways. She also behaved like an adult, had left school and had had a child already. Despite that I was of the view that the offender had taken advantage of her vulnerability and sentenced him to 8 and 9 years respectively which I ordered to run concurrently.
    

DELIBERATIONS

23. There is no doubt that this offence is very prevalent, not only here in the Milne Bay Province, but right around the country and globally. Sexual abuse of children whether girls or boys – paedophilia – is so endemic that it has become a scourge in almost every society in the world.
    
24. The advent of the internet has brought about a new dimension to this despicable crime. The ease of access to pornographic websites has flamed the insatiable and diabolical lust of a good number of people in our society for helpless and vulnerable children. Perpetrators come in every shade and colour irrespective of social status in society. We have had before us in this Court, Village Court Magistrates, Peace Officers, Pastors and School Administrators, in addition to many fathers and close relatives and numerous others.
    
25. Fathers and close relatives, men of the cloth and famous entertainers have been some of the worst offenders. The global news nowadays is inundated with news of abject and sometimes horrific abuse of children. This is a global problem of mammoth proportions which has left behind generations of emotionally damaged survivors. And as we speak hundreds of thousands more children are being abused globally in the sanctity of their homes or in villages, towns and cities and even in their churches by evil men.
    
26. Children have become mere objects of sex sadly to a good number of men in our societies who are supposed to provide support, love and guidance to this most vulnerable and defenceless group of people. To aggravate an already grave, abhorrent and despicable behaviour, there is empirical evidence that the great majority of perpetrators are people who are known to, or related to victims. And it so happens that you have just contributed to these shameful statistics by your offending.
    
27. This province has it fair share of this crime and offenders have included men who stand in very responsible positions in our communities as I have said earlier. Sexual offences, of which over half are offences against children, rank second only to homicide cases. That is a bad indictment against a society and a people who openly and ashamedly profess to be Christian.
    
28. Therefore, this Court has a duty to impose a sentence that will not only punish you personally, but also deter you personally and those with similar inclinations as well. . The Court will be failing in its duty to protect children if it does not mete out appropriate punishment for you.
    
29. Now. it does not matter if the victim had consented to the act as you said at your trial which I discounted as not true. This is because the law – with the best interest of the child in mind – presumes that children are incapable of consenting to any act of sexual nature, and lesser still, understanding the consequences, including premature pregnancy and infection with sexually transmitted infections (STI) to name but a few.
    
30. Your moment of lust to gratify yourself on your close relative has and must cost you your freedom. It has already robbed you of 3 years in which you could have done something good and set a good course for yourself for the future. However, you are now staring down the prospect of a further good number of years behind bars.
    
31. Your moment of lust has caused the victim shame and humiliation, not only from her peers and other members in your community, but as she revealed in the PSR, she also had to withstand intimidation and ridicule from your immediate family members and those relatives who have taken your side. She has to unfortunately live with the stigma of her degradation by you and for all we know this crime will have jeopardized her prospects of a happy marriage later in life. She had to terminate her education and we are not sure if she has gone back to school at all. Like every girl who has been abused she runs the prospect of descending into a state of despondency and her degradation will remain a permanent scar on her psyche.
    
32. Your moment of lust has also driven a wedge between your extended family unit as we have seen – between your immediate family and that of the victim. This is a grave offence indeed in Melanesian societies, more so, in a matrilineal society such as yours. Other relatives have of course taken sides, thus exacerbating an already bad situation. What would have continued to be a happy and cohesive unit has now been fragmented, and for all we know the schism may never be bridged, one reason being that you vehemently denied that you are the father of the victim’s child. If the relationship cannot be mended, then you can thank yourself for that.
    
33. Your offence has left more victims than you probably ever imagined -victims who are totally innocent of your crime. These are your loved ones – your mother, your brother and your grandparents whom you said depended on you for support. They have suffered too because of your offending. Not only did they lose your services, they also now cannot interact freely with or seek support from victim’s family. You cannot blame this on anyone but yourself and you cannot now plead for their welfare because this was something that you ought to have thought about before you committed this offence. (Utieng v The State; SCR 15 of 2000 (Unnumbered judgment dated 23^rd November 2000)
    
34. You have also brought into this world a child who will grow up with the unpleasant knowledge that he is the product of a customarily incestuous relationship. He will of course suffer stigma, humiliation, shame and embarrassment among his peers as he grows older. He will be shielded from this by his grandparents who have adopted him for a time, but that shield will be lifted as soon as he is old enough and starts interacting with other village children and well into his journey into adulthood.
    
35. So what then should be an appropriate sentence for you?
    

APPROPRIATE SENTENCE

36. The circumstances of your case are a bit similar to those of Pastin and Tonu in that the victims there were also just below the age of consent. The parties there were, however, in relationships and the acts of intercourse were consensual even though the victim in Pastin got pregnant and her education was disrupted.
    
37. In your case the act of intercourse was not consensual. There was some force involved. The victim became pregnant and her education was disrupted. You were also closely related, hence there was some of trust involved there which has resulted in a break-down in our extended family unit.
    
38. An appropriate sentence must therefore be similar to that of Puropuro to impress upon you that you cannot take advantage of the vulnerability of an under aged girl and expect that no consequences will befall you. And what especially aggravates your offending is the fact that the victim here was your close relative, got pregnant and had to leave school. And as I said above, your brazen conduct has also driven a wedge between members of your family unit which will take a long time to heal, if ever.
    
39. An appropriate sentence for you then ought to be 9 years. I therefore sentence you to 9 years imprisonment less time in custody being 3 years, 1 month and 8 days. That should leave a resultant sentence of 5 years 11 months and 20 days.
    

SUSPENSION

40. Should any part of the balance be suspended? Suspension is discretionary but must be exercised on proper principle. You do not have a favourable PSR which is one of the things that can qualify your case for a suspension. (Public Prosecutor v Don Hale (1998) SC 564) While there is definitely a need for you to mend your relationship with the victim’s immediate family, there is currently no prospect of that given the position they have taken. Reconciliation and restoration of relationships is a ground for suspending a sentence, but courts cannot, and should not compel unwilling parties to reconcile. (The State v Auduwa (2012) N5169)
    
41. So, if there is to be any reconciliation or restoration of your broken relationship at all, then you, being the cause of this break-down ought to take the lead and not allow your innocent relatives to pick up the pieces for you, as it were. And that you can do when you come out of goal.
    
42. But having said that, this offence is too prevalent and justice demands that offenders like you are appropriately punished. You will therefore not get any suspension.
    
43. You can appeal to the Supreme Court within 40 days if you are aggrieved by your sentence and of course you conviction.
    

Ordered accordingly,

____________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner