State v Kulap [2019] PGNC 179; N7899 (12 June 2019)

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CRIMINAL LAW – Sexual offences against a child – section 229A(1)(2) and (3) – Criminal Code Act Chapter No. 262 – sentencing upon guilty pleas – appropriate sentences – whether suspended sentences should be allowed with imposed conditions

The prisoners had pleaded guilty to one count each of penile penetration of a child who was 6 years and 8 years old, that is, at different times and locations where the offences were committed. This was their hearing on sentence.

State v. John Ritsi Kutetoa (2005) N2814
State v. Joseph Baero (2014) N5925
State v. Amu Aru (2016) N6917
Stanley Sabiu v. The State (2007) SC 866
State v. Kevin Henry (No.4) (2019) N7864

1. ANIS J: The 2 prisoners (prisoners) were indicted separately, with 1 count each, for sexually penetrating a child under the age of 12 years, at different locations and dates. They both pleaded guilty to the offences under section 229A(1)(2) and (3) of the Criminal Code Act Chapter No. 262 (Criminal Code).

3. The prisoners are relatives of the victim. Prisoner Tidoan is the younger biological brother of the victim’s father, or an uncle. The first incident occurred sometimes between 1 January 2014 and 31 December 2014, at Butam Blocks at Warongoi in East New Britain. The victim was then 6 years old. Prisoner Tidoan took the victim and 2 of her cousins to a cocoa patch to harvest breadfruits. From there, the prisoner told the victim to accompany him into the bush to collect firewood. In the bush, prisoner Tidoan removed the victim’s trousers. He then removed his trousers, laid on top of the victim and sexually penetrated her by inserting his penis into her vagina. The child felt pain a cried. After having sex with the victim, prisoner Tidoan told the victim not to tell her parents of the incident. They both then returned to where the victim’s 2 cousins where at.

4. Let me now turn to prisoner Rovie. He is the brother of the victim’s father’s grandmother, or granduncle of the victim. The second incident occurred at a different location at Butam Blocks at Warongoi in East New Britain, and at a different date, that is, between 1 January 2016 and 31 December 2016. The victim was 8 years old then. Prisoner Rovie arrived at the victim’s house. Her parents were not at home. The prisoner placed the victim on a bench in the kitchen. He removed her pair of shorts and sexually penetrated her by inserting his penis into her vagina.

5. The issues are, (i) determining the appropriate sentences for the prisoners, and (ii), in relation to the type of punishments to be imposed, whether each prisoner is suitable for full or partial suspended sentence with imposed probationary conditions.

6. Prisoner Tidoan is 23 years old. He was 18 years old at the time of the first incident. He is not married. His level of education is grade 3 (primary education level). He has not shown interest in education and has indicated in the pre-sentence report that he plans to work on a block of land that he had purchased from the Bainings sometime ago.

8. This is what the prisoner said at allocatus. He said he respects the Constitution of the country. He said he respects the Court. He said that it was his first time to have been arrested by police in relation to the incident. He said sorry to the Court. He said sorry to the community, the victim and her family. He thanked the Court and asked if he could be placed on probation to help him for what he had done.

9. I note both counsels’ submissions on mitigating and aggravating factors for the prisoner. In my view, firstly, the mitigating factors are, (i), first time offender, (ii) guilty plea thus saving the Court’s time and avoid victim from having to retell or recall the ordeal, and (iii), the prisoner’s expression of remorse to the victim and her family. The aggravating factors, in my view, are, (i), tender age of the child, that is, 6 years old at the time of the incident, (ii), big age gap of the prisoner and the victim, that is, by 12 years, (iii), the psychological trauma suffered and experience which will be with the victim for the rest of her long life yet to come, (iv), the victim’s childhood innocence has been taken away from her at such a tender age, (v), the fact that the victim sustained injuries to her vagina, and (vi), the sexual assault involved penile penetration.

10. I now turn to prisoner Rovie. He is 36 years old. I estimated 36 years old based on information provided in the prisoner’s Antecedent Report and from the tendered court depositions. I note however that in the prisoner’s pre-sentence report, he puts down his age as 25 years old. I had preferred to use the prisoner’s age based on information extracted from the Court depositions because the information therein was corroborated. Moving on, the prisoner is married with 3 children. His wife and children separated from him before the incident. They are presently living in the Autonomous Region of Bougainville. The prisoner’s education level is up to grade 3 (primary school level). In his pre-sentence report, he talks of returning home to live as a subsistence farmer.

12. This is what he said at allocatus. He said sorry to the victim’s parents and to the victim, for what he had done. He asked for leniency from the Court. He asked if he could be placed on probation. And he also asked if he could serve his sentence outside of prison.

13. Again, I note both counsels’ submissions on mitigating and aggravating factors for the prisoner. The mitigating factors, in my view, are, (i), first time offender, (ii) guilty plea thus saving the Court’s time and avoid the victim from having to retell or recall the ordeal, and (iii), the prisoner’s expression of remorse to the victim and her family. The aggravating factors, in my view, are, (i), tender age of the child, that is, 8 years old at the time of the incident, (ii), big age gap, that is, by 25 years, (iii), the psychological trauma suffered and experience which will be with the victim for the rest of her long life which is yet to be lived, (iv), the victim’s childhood innocence has been taken away from her at such a tender age, (v), the fact that the victim sustained injuries to her vagina, and (vi), the sexual assault involved penile penetration.

14. The defence presents one argument under the heading Extenuating Circumstances. It argues that given the low level of education both prisoners had, these should be regarded as extenuating circumstance. It submits that persons of a higher education or persons who are well educated, were unlikely to committed such an offence.

15. The submission of course will fail. Firstly, increase in the level of one’s education does not deter one from committing a crime or an offence. In other words, it does not require a primary school certificate or a university degree, so to speak, for one to understand that it is wrong to have sex or sexual relations with children or with a child who is also a family member. Both prisoners in this case were adults at the time they committed their offences. I note that the defence did not cite cases or put forward studies or materials to support this argument. And in regard to this case, the offences by the prisoners involve sexual penetration a child within a family or and extended family. Such act or actions are generally forbidden in civilized societies throughout the world. That has been the practice for centuries. It is also against Christian teachings and principles. In this country, Christianity or Christian principles are enshrined in the Constitution. For example, at the very beginning of the Constitution, it states, and I quote in part, WE, THE PEOPLE OF PAPUA NEW GUINEA—..... pledge ourselves to guard and pass on to those who come after us our noble traditions and the Christian principles that are ours now. See also section 45 of the Constitution.

16. Section 229A(1)(2) and (3) of the Criminal Code states, and I read in part:

(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.

17. The first consideration of course is whether I should exercise my discretion under section 19 of the Criminal Code and impose lesser sentences upon the prisoners. If I refuse to exercise my discretion, then the prisoners shall be sentenced to life years.

18. I have considered submissions from both counsel. In this case, I am inclined to exercise my discretion under section 19. I do not find the present cases to be the worst of cases for offences under section 229A, so in my view, the prisoners will receive sentences other than life imprisonments as I will explain.

19. Let me now consider relevant comparable case authorities to assist me determine the appropriate sentences to impose. I note the submissions from counsel in that regard, and of the case authorities that have been cited. I would firstly refer to the case, State v. John Ritsi Kutetoa (2005) N2814. The prisoner pleaded guilty under section 229A(1)(2) & (3) of the Criminal Code to penile penetration of the victim who was his step-daughter. He was 39 years old and the victim was 10 years old at the time of the incident. He was a first-time offender. He was sentenced to 17 years imprisonment. Time spent in custody was deducted from his sentence. The second case is State v. Joseph Baero (2014) N5925. The prisoner pleaded guilty under section 229A(1)(2) & (3) of the Criminal Code to penile penetration of the victim who was his step-daughter. The prisoner was 40 years old and the victim was 12 years old at the time of the incident. The prisoner was a first-time offender. He was sentenced to 12 years imprisonment. Time spent in custody was deducted, and 5 years 2 months were suspended with imposed conditions. The prisoner was left to serve the first 6 years in custody. The third case is State v. Amu Aru (2016) N6917. The prisoner pleaded guilty under section 229A(1)(2) & (3) of the Criminal Code to penile penetration of the victim who was his first cousin. The prisoner was 23 years old and the victim was 9 years old at the time of the incident. The prisoner was a first-time offender. He was sentenced to 15 years imprisonment less the time he had spent in custody. The fourth case is Stanley Sabiu v. The State (2007) SC 866. The prisoner pleaded guilty under section 229A(2) of the Criminal Code to anal penetration of the victim who was his nephew. The prisoner’s age was not stated but the victim was 6 years old at the time of the incident. He was sentenced to 17 years imprisonment. The prisoner was aggrieved and appealed against his sentence. The Supreme Court dismissed the appeal effectively upholding the sentence of 17 years imprisonment.

20. With these, I ask myself this. What should be the starting point to be imposed on the prisoners? Given the separate circumstances of the offences committed by the prisoners on the victim, and the fact that they had been indicted separately, I am obliged to make separate findings and assessments for their sentences.

21. For prisoner Tidoan, the victim was 6 years old at the time of the incident. In my view, the starting point should be 17 years. I note that the aggravating factors outweigh the mitigating factors, and I say this without regard to the guilty plea which I will address separately. In this case, I will add 3 years onto the 17 years. This will see the sentence increase to 20 years. I also note that the offence, namely, sexual penetration of children, is prevalent in the country and in East New Britain. A punitive sentence is, in my view, required. The Court must, in my view, send out a firm warning to the society at large that persons who are found guilty of committing sexual offences against children will face stiffer penalties or sentences. I will impose 5 years as punitive sentence for the prisoner.

23. Because the aggravating factors outweigh the mitigating factors, I may not consider the mitigating factors. However, there is one factor which I believe should be considered separately and be given credit. This factor is the guilty plea by the prisoner. The factor, in my view, should not be regarded lightly but rather highly, by the Court. There are many reasons for that. This Court must of course and in a similar fashion, send out a message to the society at large that accused persons who plead guilty and make it easy for a victim as well as save the Court’s time, will receive credit or recognition which will be translated to reductions in their sentences. Accused persons who may wish to plead guilty should be allowed to do so, and at the same time, they should know or have confidence that the Court will give due regards to their guilty pleas when it comes to sentencing. Therefore, and in this case, I take prisoner Tidoan’s guilty plea into account separately from my earlier comparisons of mitigating and aggravating factors. And for that, I will reduce prisoner Tidoan’s sentence by 8 years.

25. Let me now address Prisoner Rovie. The victim was 8 years old at the time of the incident. The starting point in my view should be slightly lower than the starting point for prisoner Tidoan. I will start at 16 years imprisonment. Similarly, I note that the aggravating factors outweigh the mitigation factors, and I say this without regard to the guilty plea consideration which I will address separately. I will therefore impose an additional sentence of 3 years and increase the sentence for prisoner Rovie to 19 years imprisonment. I also note that the offence, namely, sexual penetration of children, is prevalent in the country and in East New Britain. A punitive sentence is, in my view, required. Like prisoner Tidoan, I will impose a punitive sentence of 5 years. This will see the sentence being increased to 24 years.

26. I make the same findings for prisoner Rovie as I have made for prisoner Tidoan, in relation to his guilty plea. I will reduce this sentence based on his guilty plea by 8 years. I repeat my reasons as I have done above in my judgment. This will see prisoner Rovie’s sentence being reduced to 16 years.

28. Should I impose only custodial sentences upon the prisoners? Or should I impose full or partial suspended sentences with imposed probationary conditions? The Court’s power in this regard is discretionary under section 19 of the Criminal Code. For the present cases, I am inclined to exercise my discretion. As to what extent, I will now consider.

29. I firstly refer to the pre-sentence reports. The reports in summary recommended probations with imposed conditions. The reports also recommended cautions against the prisoners if the Court was minded to grant probations. I find the reports balanced and I note their contents. The victim’s father was interviewed. He preferred compensation payments for both prisoners for the offences. The victim’s father said he prefers the prisoners to each pay 100 fathoms (shell money) as “bel kol” money. And later, he wants them each to pay 100 fathoms (shell money) and K2,000 in cash. At the outset, I must caution myself because the father of the victim who was interviewed, is not the victim, and the victim herself is a child who is currently 11 years old. The other thing I note is the fact that these were crimes committed within the family setting. The prisoners are directly related to the victim and her family. And I will add this at this juncture. In a recent decision, I remarked that societies in this country use, as an alternative remedy, compensation to settle disputes or violent acts that are committed against women including the young women which was illegal and in breach of the Constitution. In the case State v. Kevin Henry (No.4) (2019) N7864, I stated at paragraph 27 and I quote:

Senseless assaults and killings of women in Papua New Guinea in domestic settings have continued to become a common occurrence. And there is also, my view, a general misconceived view or perception in many societies in the country where compensation payment is seen as an alternative way of dealing with such crimes that are being committed against women or mothers. These perceptions are of course wrong and are contrary to law including the Constitution. Despite our existing laws, women continue to fall victims to senseless assaults and deaths.

30. I adopt the above but in the context of sexual assaults that are committed against young children in the country, that is, crimes under Division 2A.—Sexual offences against children of the Criminal Code. Courts, in my view, should be cautious and have reasonable regard to the interests of child victims in sexual assault cases when considering compensation in sentencing. The Court should ask itself not only whether the granting compensation as part of sentencing will in-fact be in the best interest of the child victim, but it should also ask itself this question, that is, What sort of intended or untended message(s) will the Court be sending out to the community at large if it orders a prisoner to pay compensation to the victim child or the victim child’s parents? Will that deter the commission of such crimes in the future? Or will it have no bearing but rather only increase or encourage commission of such offences in the future? Whether it will be regarded positively or negatively by the community at large. These are real questions the Court, in my view, must ask itself and answer, and the Court should not limit itself to what is presented by the parties. I say these as well to the present context because Justice will be short-sighted if I am only required to consider the prisoners’ capacities to pay compensation with whether the parents of the victim child are happy with compensation.

31. No amount of compensation would repair the physical and psychological damage that has been caused to the victim. This view was also expressed by the probation officer in the pre-sentence reports of the prisoners. The victim is still a child aged 11 years old. In my view, if compensation is awarded herein, it would serve other purposes not directly beneficial to the victim child. It could also send out mix or wrong signals or messages to the community at large that for serious sexual offences against children, that one may get away with a lighter sentence by paying compensation. Should that be the case, it could defeat the purposes of Division 2A, sections 229 A-V of the Criminal Code.

32. I therefore refuse to have regard to compensation as an appropriate type of punishment that I should impose on the prisoners.

33. In relation to suspended sentence, I will say this. For prisoner Tidoan, I take into account his youth status and age. He is presently 23 years old. He was 18 years old when he committed the offence. I have sentenced him to 17 years imprisonment. I will suspend 6 years from his custodial sentence of 17 years. He shall serve 11 years in custody in hard labour before serving the balance of his sentence of 6 years as non-custodial sentence with imposed probationary conditions. Time already spent in custody shall be deducted from his custodial sentence. As to the probationary conditions, the prisoner shall observe these when he is released from custody after serving his custodial sentence of 11 years. He shall, (i), not consume alcohol or drugs for the duration of his suspended sentence of 6 years, (ii), he shall enter into his own recognizance to keep the peace and be of good behaviour for a duration of his suspended sentence of 6 years, and (iii), he shall keep away from as well as he shall not take into custody or care, any female child who is under the age of 18 years old, during the period of his suspended sentence.

34. In relation to prisoner Rovie, he was an adult aged 34 years old, and he not a youth, when he committed the offence. I therefore refuse to grant suspended sentence in that regard. In my view, appropriate or discounted considerations have already been given in favour of the prisoner by this Court. Prisoner Rovie shall serve his full sentence of 16 years in custody in hard labour. Time already spent is custody shall be deducted from his custodial sentence.

Length of sentence imposed	17 years
Pre-sentence period in custody to be deducted	Yes (to be calculated)
Amount of sentence suspended	6 years
Time to be served in custody	11 years less the time already spent in custody
Conditions to observe for the next 6 years after prisoner is released from custody:	(i). He shall not consume alcohol or drugs for the duration of his suspended sentence of 6 years. (ii). He shall enter into his own recognizance to keep the peace and be of good behaviour for the duration of his suspended sentence of 6 years. (iii). He shall keep away from as well as he shall not take into custody or care, any female child who is under the age of 18 years old, during the period of his suspended sentence of 6 years.
Place of custody	Correctional Service, Kerevat

Length of sentence imposed	16 years
Pre-sentence period in custody to be deducted	Yes (to be calculated)
Amount of sentence suspended	Nil
Time to be served in custody	16 years less the time already spent in custody
Place of custody	Correctional Service, Kerevat

____________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Prisoners

National Court of Papua New Guinea

State v Kulap [2019] PGNC 179; N7899 (12 June 2019)