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State v Morris [2020] PGNC 492; N9220 (3 December 2020)

N9220

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 393 OF 2019

THE STATE

-V-

HENRY MORRIS

Alotau: Toliken, J.
2020: 08^th July, 06^th November, 03^rd December

CRIMINAL LAW – Sentence - Sexual penetration of a child – Guilty plea – Brother-in-law/sister-in-law relationship – Child 12 years old – Prisoner 23 years old - Penile penetration of vagina – Relationship of trust – Breach thereof –Mitigating and aggravating factors considered – Effects of abuse on children considered – Appropriate starting point and head sentence considered – Starting point of 12 years – Head sentence of 11 years less period in pre-conviction/sentence detention – Partial suspension – Good behaviour with conditions – Criminal Code, s 229A(1)(3).

Cases Cited
Aihi v The State (No.3) [1982] PNGLR 92
Golu v The State [1979] PNGLR 653
Stanley Sabiu v The State (2007) SC866
The State v Raumo (2007) N4983
The State v Tapin (2017) N6626
The State v Steven Leleno; CR No. 1268 of 2018 (Unnumbered and unreported judgment of 13 November 2019)

Other Sources Cited:
www.qld.gov.au/community/getting-support-health-social-issue/support-victims-abuse/child-abuse/what-is-child-abuse/child-abuse-effects)

Counsel
R Luman, for the State
N Wallis, for the prisoner

JUDGMENT ON SENTENCE

03^rd December 2020

1. TOLIKEN, J: On the evening of Saturday 09^th June 2018, between 6.00 and 7.00a.m, the child Rhonda Bogwasawa Bunuvagola (Rhonda) was playing with her friends at the back of her house at Kabwaku village on Kiriwina Island when you, Henry Morris, called her to follow you into the nearby bushes to collect firewood. Rhonda and her smaller sister followed you. And while you were in the bush you told Rhonda’s sister to go further in to look for firewood. When alone with Rhonda, you grabbed her and pushed her onto the ground. You then lifted her skirt and sexually penetrated her by inserting your penis into her vagina. Rhonda was about 12 years old and was doing Elementary 2 at Kabwaku Elementary School. She was your sister-in-law, being your wife’s biological small sister.
   

THE CHARGE

2. On 08 July 2020, the State indicted you with one count of sexual penetration of a child under the age of 16 years and with whom you stood in a position of trust, authority and dependency pursuant to Section 229A(1)(3) of the Criminal Code.
   

PLEA

3. You pleaded guilty to the charge and admitted the above supporting facts. A Pre-sentence Report (PSR) was ordered on request. Due to difficulties faced by the Probation Service, the report was not filed until 28 August 2020. I administered the allocutus and heard submissions on sentence from counsel on 06 November 2020.
   

THE OFFENCE

4. The offence of sexually penetrating a child under the age of 16 years without circumstances of aggravation attracts a penalty of not exceeding 25 years imprisonment. Where circumstances of aggravation, such as the existence of a relationship of trust, authority or dependency, or that the child was below the age of 12 years, are pleaded, then, subject to the Court’s discretion to impose a lesser or an alternative penalty under Section 19 of the Code, an offender may be sentenced to life imprisonment.
   
5. In your case, you are liable to be sentenced to life imprisonment. That will, however, depend on whether yours is a worst case because the maximum penalty is often reserved for worst cases. I will also have to consider the circumstances and facts of your own case when deciding what an appropriate sentence for you ought to be. (Golu v The State [1979] PNGLR 653; Aihi v The State (No.3) [1982] PNGLR 92;)
   

ISSUE

6. What falls to be determined therefore is what an appropriate sentence for you ought to be.
   

SENTENCING RATIONALE

7. I must say at the very outset that sexual offences against children are probably the most abhorrent of sexual offences because offenders target the most vulnerable members of society – children - who deserve to be loved, nurtured and guided by parents and guardians so that they grow into stable and morally upright members of society. Homes are supposed to provide security for children. Unfortunately, most of the abuse happen in the safety of the family home. Abusers are usually persons who are known or related to victims, persons who in most cases stand in positions of trust in respect of these children. When abuse happens in the safety and sanctity of the home or other places where children are raised, educated, or offered spiritual guidance for instance, perpetrators must be severely punished for this grave dereliction of moral and legal duty and obligation.
   
8. Sexual abuse is a global issue hence the United Nations Convention on the Rights of the Child (CRC) obligates member countries to legislate for the protection of children from sexual abuse, among others. Our Parliament had ratified the Convention and accordingly introduced new offences into the Criminal Code, one of which is offence you pleaded guilty to. (Criminal Code (Sexual Offence and Crimes Against Children Act 2002). This amendment to the Code provided very stiff penalties for sexual abuse that are committed by persons who stand in positions of trust - life imprisonment. This reflects Parliament’s intention, which is clearly that persons who abuse children, more so, those who stand in positions of trust and abuse that trust must be severely punished.
   
9. To that end, it is well worth repeating what the Supreme Court said in Stanley Sabiu v The State (2007) SC 866 (Mogish, Manuhu, Hartshorn JJ) when dismissing the appellant’s appeal against a sentence of 17 years for sexually penetrating his 6-year-old nephew. The court said at paragraph 10:
   

... 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 maximum 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 15 years imprisonment.

10. It is against that backdrop that I will determine an appropriate sentence for you.
    

ANTECEDENTS

11. You were 23 years old when you committed this offence. You are now 25 years old. You come from Kabwaku village on Kiriwina Island (Trobriand) in the Kiriwina/Goodenough District of Milne Bay. You are married with 1 child and are a member of the United Church. You were educated up to Grade 8 after which you completed a Carpentry Course at the Ubuya Vocational School on Normanby Island. You were employed by KB Development as a carpenter from 2013 to 2017. Both your parents are still alive and are living in the village on Woodlark Island. You are the second of five siblings. You are a first-time offender. You have been in custody since your apprehension on 09 June 2018.

ALLOCUTUS

12. You apologized for breaking the law. You also apologised to the victim and her family and said that you now realized that it was wrong for you to commit such an offence against children under the age of 16. You also apologized to your family for bringing shame upon them, and you promised never to re-offend. You said that you are a first-time offender and that you are married with a child who was 1 month old when you were apprehended by the police. You expressed concern about the welfare of your wife and child because you do not know who will take care of them. You therefore asked for probation so that you can make peace with the victim and your family.
    

SUBMISSIONS

13. Mr. Wallis submitted in your behalf that whilst your actions cannot be excused your case is not necessarily a worst case. Counsel cited several mitigating factors which he said outweighed your aggravating factors. Your PSR is not a balanced one as the views of the victim and her family and those of your own family and community leaders were not gauzed due to the difficulty in reaching them.
    
14. Mr. Wallis also cited several decided cases which he urged the Court to consider in determining an appropriate sentence for you. He said that the circumstances of your case are similar to those in The State v Steven Leleno; CR No. 1268 of 2018 (Unnumbered and unreported judgment of 13 November 2019) where I sentenced the offender to 8 years imprisonment for sexually penetrating his 14 year old niece – his wife’s sister’s daughter during a night fishing trip where he deliberately moved away from two other fishermen and sexually penetrated the victim. The victim fell pregnant and also had her education disrupted.
    
15. Mr. Wallis submitted also that the victim in your case did not have her education disrupted or get pregnant as was the case in Steven Leleno nor did she suffer any serious injuries. Counsel, however, conceded that your victim bled after you penetrated her, which, of course means that she suffered some injury.
    
16. Counsel submitted therefore that an appropriate sentence for you ought to be in the range of 8 – 10 years from which the time you spent in custody ought to be deducted. The balance may then be suspended so that you will not only be deterred but also rehabilitated.
17. Mr. Luman submitted on the hand for the State that the range of sentences imposed on your type of case i.e., sexual penetration of a child between the ages of 12 and 16 range from between 7 – 15 years. Counsel cited a few cases to show this.
    
18. Mr. Luman submitted that your aggravating factors – (i) breach of trust, (ii) huge age difference of 10 years, (iii) penile penetration of the victim’s vagina and (iv) heavy bleeding and of course (v) the prevalence of the offence make you case very serious. This is notwithstanding the fact that you pleaded guilty, are a first-time offender and have expressed remorse.
    
19. There is no knowing what the impact of the offence on the victim because no Victim Impact Statement was tendered in her behalf. She may have left school for all we know, and her mental health is also not known. Whatever the case, these are serious aggravating factors over which the Court should be slow to give too much benefit of a doubt to you, counsel submitted.
    
20. Mr. Luman submitted therefore that an appropriate sentence for you ought to be 12 to 15 years.
    

STARTING POINT

21. The Supreme Court in Sabiu v The State (supra) set the starting point for sexual penetration of a child under the age of 12 years at 15 years. If that is the case, then it should follow naturally that for a child of 12 years or above, the starting point ought to be below 15 years. Where a child is 12 years old or slightly above that then the starting point ought to be just slightly below 15 years, perhaps 14 or 13 years. A lower starting point will of course be justified where the child is a couple of years or just months below the age of consent.
    
22. A starting point is usually arrived at by objectively considering the culpability of the offender. This is done through an assessment of the seriousness of the offence and the harm done, or that which can be reasonably foreseen.
    
23. Your case is not necessarily a worst case. However, your culpability is not low because the victim was somebody in respect of whom you stood in a position trust. There is no definitive proof of her exact age at the relevant time, but it was put to you on arraignment that she was about 12 years old – a fact which you did not contest. What is clear, however, is that she was not under 12 years of age so, a starting point for you cannot be 15 years. It must be slightly below that. Given what I have said above, while giving you the benefit of a doubt as to the victim’s exact age, I will fix a starting point for at 12 years. What then should be a head sentence for you?
    

APPROPRIATE SENTENCE - CONSIDERATIONS

(i) Mitigating Factors

24. I accept the following factors in your favour:
    
    • You pleaded guilty very early to your offence and in so doing you not only saved time and money for the state had you forced a trial but most importantly you saved the victim the trauma and embarrassment of reliving her harrowing and demoralizing experience in the face of a trial.
    • You co-operated with the police by making early admissions both in a confessional statement and in your Record of Interview.
    • You are a first-time offender.
    • You are an unsophisticated villager.
    • You were of prior good character.
    • You did not impregnate the victim.
    • You did not infect the victim with a Sexually Transmitted Infection (STI).
    • You did not use any weapons or subject her to any aggravated physical violence.
    • It was an isolated incident.
    • You acted alone.
    • You expressed what appeared to me to be genuine remorse and offered to pay compensation in cash and kind.
    • You were 23 years old when you committed this offence, hence, in essence you were a youthful offender by local standards.
      
    • (ii) Aggravating Factors
      
25. Against you, however, are the following aggravating factors:
    
    • You stood in a close relationship of trust. The victim was your wife’s baby sister. Your breach of trust was therefore a serious one.
    • The victim was 4 years below the age of consent.
    • There was an age difference of 11 years between you and the victim.
    • The victim suffered pain and was injured when you penetrated her.
    • You not only broke her hymen. The medical report shows that she sustained a graze measuring 2cm on the posterior of the vagina, which, if I might add, is indicative of forced entry into the victim’s small vaginal orifice. This may have contributed to the heavy bleeding the victim sustained, a fact alluded to by Mr. Wallis in his submissions.
    • The psychological and emotional effects of the experience will no doubt negatively impact on the victim, if not now, later on in life.
      
    • (iii) Comparative Sentences
      
26. Apart from these factors, I also need to consider the type of sentences which have been imposed in other cases with similar circumstances. This is essentially to ensure that there is consistency in sentencing.
    
27. As I indicated earlier, both counsel cited several cases to me in their submissions. A few of these are quite similar to yours. These are The State v Steven Leleno (supra), The State v Raumo (2007) N4983 (Cannings J) and The State v Tapin (2017) N6626 (Lelania J).
    
28. I have already canvassed the brief facts and the sentence imposed in Leleno’s case. Leleno sexually penetrated his 14 years old niece. I sentenced him 8 years imprisonment.
    
29. In The State v Raumo (supra) the 25-year-old offender took a 6-year-old girl and sexually penetrated her under a breadfruit tree by a riverbank. He got her to lie down and then penetrated her vagina with his fingers and attempted to penetrate her with his penis. On a guilty plea he was sentenced 10 years imprisonment.
    
30. In the State v Tapin (supra), the 38-year-old offender pleaded guilty to sexually penetrating his 13-year-old adopted daughter with his penis on three separate occasions within a period of one month in their family home when the wife was absent. It appeared that the acts were consensual. The offender there was sentenced to 12 years, two of which were suspended with conditions including payment of compensation. He was ordered to serve the balance of 10 years less the period spent in pre-sentence detention.
    
31. Coming back to your case, there is no question that you must be punished with a custodial sentence. It has to be long enough to keep you away from the victim and other young girls in your village. The girl was your wife’s younger sister and was a mere child who needed protection from you, even if she was only related by marriage and not by blood. Having sexually penetrated her, you will of course now view her very differently, and for all we know may continue to lust after her. So, you must be kept away her until such time she is big enough to defend herself from you and other like-minded paedophiles and predators in your village.
    
32. In my opinion any man who has sexually penetrated or abused a child is a danger to every girl in his society or community. Girls are no longer safe, even in the family home or around relatives because men who are supposed to care for them and their welfare are increasingly becoming predatory.
    
    • (iv) Effects of Abuse
      
33. The Official Queensland Government Website gives a concise summary and insight on the effects of child abuse on survivors. It says that while children respond differently to abuse, the effects on them can be very significant and long lasting. And while it should be noted that the impact of abuse will not be noted in some children, most may experience a range of emotional, psychological and physical problems including –
    
    • low self esteem
    • increased fear, guilt and self-blame
    • distrust of adults or difficulty forming relationships with others
    • disrupted attachments with those who are meant to keep them safe
    • mental health disorders such as anxiety, attachment, post-traumatic stress and depression disorders
    • self-harming or suicidal thoughts
    • learning disorders, including poor language and cognitive development
    • developmental delay, eating disorders and physical ailments
    • permanent physical injuries or death
    • violent, aggressive or criminal behaviour or other behavioural problems
    • drug and alcohol abuse and high-risk sexual behaviour.
      

(See www.qld.gov.au/community/getting-support-health-social-issue/support-victims-abuse/child-abuse/what-is-child-abuse/child-abuse-effects)

34. We can therefore appreciate the devasting effects sexual abuse can have on children and the intention behind child abuse legislation such as those introduced into our Criminal Justice System and Criminal Law.
    
35. I have considered the circumstances of your case and took particular note of your mitigating factors which are quite significant. I am, however, not blind to the aggravating factors of your offence and the effects the offence has on your victim.
    
36. You have committed a despicable offence and so any sentence for you should serve three things – (1) punish you (2) deter you and any like-minded persons in your community, and (3) if possible, rehabilitate you. You are not an unskilled village. Rather you are a carpenter by trade and certainly you can be a useful resource person in your village and community. I will therefore impose a sentence that will not only impress on you the seriousness of your offending but also help you to turn around from your wrongful course.
    

SENTENCE/ORDERS

37. In the circumstances, I think that an appropriate sentence for you ought to be 11 years. I therefore sentence you to 11 years imprisonment. The time you spent in conviction/sentence detention, which is 2 years, 4 months and 24 days will be deducted. That should leave you with a resultant sentence of 8 years 7 months and 6 days. You will serve 4 years of that at Giligili Corrective Institution while the balance will be suspended upon your entering into your own recognizance to be of good behaviour for a period 3 years with conditions that:
    
    • (1) You will keep the peace especially toward your victim Rhonda Bogwasawa Bunuvagola and be of good behaviour.
      
    • (2) You will not be alone with any girl under the age of 16 years who is not your biological daughter or sister.
      
    • (3) You will not consume and form of intoxicating liquor or narcotics such as marijuana.
      
    • (4) If you breach any condition of your good behaviour bond, you will be arrested and imprisoned for the balance of your sentence which is 4 years 7 months and 6 days.
      
38. That is the sentence of the Court. You have the right to appeal against your sentence within 40 days from today.
    

Ordered accordingly.
________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for The State
L B Mamu, Public Solicitor: Lawyer for the Prisoner