State v Tivat (No 3) [2019] PGNC 202; N7986 (3 September 2019)

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CRIMINAL LAW – Sentencing - convicted for sexual offence against a minor - section 229A(1) of the Criminal Code Act Chapter No. 262 - sexual penetration of a minor below the age of 16 years - sentence after trial - mitigating and aggravating factors considered - suspended sentence considered – deterrence sentence considered – time spent in custody considered

State v. Sylvester Tivat (No. 2)(2019) N7914
State v. Francis Reu Xavier (2014) N5789
State v. Kemai Lumou (2004) N2684

1. ANIS J: On 18 July 2019, I convicted the prisoner for sexual penetration of a minor contrary to section 229A(1) of the Criminal Code Act Chapter No. 262 (Criminal Code). The decision was published as an un-reported judgment, that is, State v. Sylvester Tivat (No. 2)(2019) N7914.

3. I have set out the brief facts in my earlier judgment and I would refer to that. But in brief, the victim child was 12 years old at the time. She was alone outside her house when the prisoner grabbed her from behind and carried her over to a Tolai men's house called taraiu. The prisoner is related to the victim. At the taraiu, the prisoner used force and sexually penetrated the victim by inserting his penis into her vagina. He used a bush knife and threatened her against reporting the incident to her mother.

4. At the time of the charge in 2016, the prisoner was 34 years old. The prisoner should be 37 years old this year. He is married with five children. Four (4) of his children are attending school whilst one is not and is at his home. The prisoner said that he and his family survive through monies received from harvests from their cocoa and copra block.

5. In allocatus, the prisoner asked for leniency from the Court. He did not however say sorry or show remorse to the victim and her family for his action. If he had, he did not expressly show that to the Court.

6. The State tendered the antecedent report. The prisoner has no prior conviction.

8. For mitigation, I find the following. Firstly, the prisoner has no prior convictions. Secondly, he is a first time offender and the offence was a one off or an isolated incident. And thirdly, I note that the prisoner acted alone when he committed the offence.

9. For aggravation, I find the following. Firstly, there was a huge age difference of 22 years between the prisoner and the victim, that is, when I compare their age disparities from the time the offence was committed on 8 January 2016. The victim suffered physical injuries to her vagina from the sexual assault. She bled heavily as well after the incident. The victim also suffered and will continue to suffer psychological trauma. I also note the fact that the victim was 12 years old and her innocence and experience as a child was taken from her. And finally, I take into account the fact that a dangerous weapon namely a bush knife had been used to threaten the victim at the time of the assault.

10. Section 229A(1) reads, and I quote, A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime. The penalty for that is, and I quote, imprisonment for a term not exceeding 25 years.

11. In the present case, the parties are at common ground that the victim was above 12 years old at the time of the offence. I also note that the charge did not extend to relationship of trust, authority or dependency, and so it was not an issue that was required and which had to be established at the trial on verdict. With these aside, the prisoner herein is therefore liable to be sentenced to a maximum sentence of 25 years.

12. Let me consider similar case authorities to determine the appropriate sentence for this prisoner. I note the case authorities cited by both counsel. I must say that I did not find most of them closely similar or relevant to the present case. I will, in this case, consider and discuss two cases that I have identified as similar and relevant.

13. The first case I refer to is State v. Francis Reu Xavier (2014) N5789. The prisoner pleaded guilty to one count of sexual penetration under section 229A(1) of the Criminal Code. The victim was 12 years old at that time. The prisoner followed her into the bush where he forced himself upon her and inserted his penis into her vagina. He was sentenced to 9 years imprisonment. Time served in custody was deducted. No suspended sentence was imposed. When I compare the case to the present, I note that the present case is far more serious. Unlike that case, the prisoner herein pleaded not guilty and he was convicted after a trial on verdict. No weapons or use of violence occurred in that case whereas weapons and violence were displayed in the present case. The victim in Francis Reu’s case did not suffer physical injuries. In this case, the victim suffered physical injuries to her vagina and there was evidence that she bled heavily after the incident. When I compare the two cases, obviously this case would call for a higher sentence than 9 years.

14. The second case I find relevant is the case of State v. Kemai Lumou (2004) N2684. The prisoner was convicted under section 229A(1) of the Criminal Code after a trial on verdict. The prisoner was 22 years old at the time of the offence. The victim, who was his niece, was 14 years old. The prisoner in this case used force and a dangerous weapon namely a bush knife in the sexual assault. The prisoner hid himself in nearby bushes to a road and surprised the victim as she was walking to school. He tried to grab the victim into the bushes. The victim refused and a struggle started. The prisoner then used a bush knife to threaten the victim. He also prevented her from shouting by shutting her month with one of his hands. He forced the victim to the ground where he removed her clothes and inserted his penis into her vagina. The prisoner was sentenced to 17 years less the time he had spent in custody.

15. I find the second case similar to the present case. I note that the trial Judge applied various factors which were relevant and were within his discretion under section 19 of the Criminal Code, before arriving at the sentence of 17 years.

16. For the present case, the defence submits that a sentence of less than 10 years would be appropriate under the circumstances. The prosecution on the other hand, submits that a sentence above 10 years would be appropriate for the prisoner.

17. In my view, I will reject the defence’s submission and accept the State’s submission on sentence. I will impose a sentence that will be higher than 10 years. Having made this decision, I will now begin by taking into account the aggravating and mitigating factors. To me, I find that aggravating factors far more serious. I find them to outweigh the mitigating factors. I will add 8 years to the 10 years sentence. This will see the sentence increase to 18 years. As for the mitigating factors, I will allow 5 years. This will see the sentence being reduced to 13 years. I will also say this and thus take that into account as a factor. I note that the prisoner did not say sorry for his actions. He simply asked the Court to impose a lenient sentence on him. For that, or for not feeling sorry for his actions or for not realising his wrong, I will add a further 2 years to his sentence. This will see the sentence increase to 15 years.

18. I note that the State has also called for a deterrent sentence to be imposed. The State submits that the offence is prevalent particularly in the East New Britain Province. However, I note that counsel has failed to assist the Court in this regard, that is, by making references to cases or statistics to support the claim. I will not accept blanket submissions. I therefore decline to pass any sentence terms under this consideration.

19. The prisoner did not request for a pre-sentence report to be compiled. During allocatus, the prisoner did not state whether he has paid any form of compensation to the victim or her family.

20. The defence counsel also did not ask the Court to consider suspended sentence as an appropriate form of punishment. Should this Court therefore discard this consideration? Given the discretion that is bestowed upon the National Court under section 19 of the Criminal Code, I would say, “no, this Court should not ignore or discard this consideration.” In my view, this is a Court of Justice. That being so, the Court should exert justice by asking itself whether imposing a suspended sentence may be a good type of punishment for a prisoner under the circumstances of the case.

21. In the present case, the main factor I see that is acting against this Court from giving due consideration under this sub-heading is due to the fact the prisoner did not show any remorse for his action. In my view, had he said sorry to the victim and her mother for what he had done to them which was devastating, I could have considered exercising my discretion here. The prisoner has not shown that, and for that, I do not believe that he should be given a suspended sentence with imposed conditions so that he could re-join society quickly. His action shows quite to the contrary, and as such, he needs to keep away from the society and serve his full sentence in custody.

22. The prisoner has been in custody since his conviction on 18 July 2019. That would be a period of 1 month 16 days. I also note that before bail had been granted on 15 July 2016, that the prisoner had been in custody as of 29 January 2016. That would amount to a period of 5 months 17 days.

23. Total time spent in custody shall be deducted from the prisoner’s sentence of 15 years.

Length of sentence imposed	15 years
Pre-sentence period in custody to be deducted	6 months 32 days which is equivalent to 7 months 2 days
Amount of sentence suspended	Nil
Time to be served in custody	14 years 4 months and 28 days
Place of custody	Correctional Service, Kerevat

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Office of the Public Prosecutor: Lawyer for the State
Warner shand Lawyers: Lawyers for the Prisoner

National Court of Papua New Guinea

State v Tivat (No 3) [2019] PGNC 202; N7986 (3 September 2019)