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State v Duli [2021] PGNC 228; N9098 (1 September 2021)

N9098

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1199 OF 2018

THE STATE

V

BEN DULI

Waigani: Berrigan, J
2021: 5^th June, 6^th August and 1^st September

CRIMINAL LAW – SENTENCE – GUILTY PLEA - S 229(A)(1) of the Criminal Code – Sexual penetration of a 6 year old child by a 29 year old offender – Sentence of 14 years imposed.

Cases Cited:

Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Sabiu v The State [2007] PGSC 24; SC866
Kumbamong v The State (2008) SC1017
David Kaya and Philip Kaman v The State (2020) SC2026
Goli Golu v The State [1979] PNGLR 653
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Rex Lialu v The State [1990] PNGLR 487
Lawrence Simbe v The State [1994] PNGLR 38
The State v Pennias Mokei (No. 2) [2004] PGNC 129: N2635
The State v Samson (2005) N2799
The State v Solo (2005) N3165
The State v Sabiu [2005] PGNC 223; N3659
The State v Raumo [2007] PGNC 187 N4983
The State v Bangau (2017) N7031
The State v Nokoa [2017] CR NO. 344 OF 2017
The State v Paulus [2018] PGNC 350 N7339
State v Bellamy (2021) N8821

References Cited

Sections 19, 229A(1)(2), 528(3) of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Mr D Digori, for the State
Ms A Peter, for the Offender

DECISION ON SENTENCE

1^st September, 2021

1. BERRIGAN J: The offender pleaded guilty to one count of sexually penetrating a child under the age of 16 years, contrary to s 229A(1) of the Criminal Code, on the basis of the following facts which were admitted on arraignment and supported by the depositions.
   
2. On a day between 1 January and 13 April 2018 the offender led the victim away from the church yard in which she lived with her family into the shack he occupied nearby. He removed her trousers and proceeded to sexually penetrate her by inserting his penis into her vagina, thereafter ejaculating and rubbing his semen onto her vagina. At the time the victim was six years old.
   

Allocutus

3. On allocutus the offender said: Firstly, I apologise to God that I did a terrible thing. Secondly, I apologise to this court. I broke the law. Thirdly, I apologise to the victim. I wronged her. I apologise to my family. I spent three years and two months and they came and visited me. Lastly, I want to ask this court to have mercy on me.
   

Sentencing Principles

4. The maximum penalty for the offences under s 229A(1) of the Criminal Code is 25 years.
   
5. At the beginning of the plea proceedings the State Prosecutor sought to include a paragraph expressly pleading that at the time of the offence the child was under the age of 16 years, namely six years old. That was objected to by the defence. It appears that it was agreed with another prosecutor as part of the plea negotiations that the State would not invoke the maximum of life imprisonment under s 229A(2) but only proceed under s 229A(1).
   
6. Whilst I appreciate that s 528(3) of the Criminal Code requires that if any circumstance of aggravation is intended to be relied on it must be charged in the indictment, the age of the child in aggravation has been clearly and expressly charged in the indictment in this case. No additional paragraph is required. The purpose of the indictment is to provide the accused with notice of the offence with which they are charged. There could be no doubt about the age of the child in this case on the face of the indictment, and in my view no doubt that s 229A(2) applies.
   
7. Whilst I do not wish in any way to compare the offences, it has never been necessary to plead as a separate paragraph the value of monies, or the nature of the employment relationship for the purposes of s 383A of the Criminal Code provided those matters are particularised in the charge.
   
8. Furthermore, it is not appropriate given the nature of the offence of sexual penetration of a child to exclude the maximum that necessarily applies as a result of the age of the child. For obvious reasons the age of the child is at the heart of any offence under s 229A. Moreover, the age of the child is what it is. The court cannot disregard it as it might a matter in aggravation that is in dispute and therefore not pressed by the State on the plea. I appreciate, however, that ultimately the choice of charge is a matter for the State, and there may have been considerations about which I am not aware. It should, however, be avoided.
   

Submissions and Comparative Cases

9. The offender declined to address the Court directly on allocutus as is his right and said that his lawyer would speak for him.
   
10. Defence counsel conceded in aggravation that the offence was prevalent. The offender was living with the victim’s parents who had taken him into to live on their premises. In mitigation he was a first-time offender, illiterate and the sole breadwinner for his aged mother. No weapon was used and there no physical injuries inflicted. She submitted that a sentence in the range of 6 to 8 years was appropriate and that it should be partially suspended in recognition of his guilty plea.
    
11. Counsel referred to the following cases:
    
    1. The State v Bangau (2017) N7031, Miviri J: A 23 year old man pleaded guilty to sexual penetration of his 13 year old sister, contrary to s 229A(1). Both shared the same mother but different fathers. Despite the breach of relationship, trust and authority but having regard to his illiteracy, and lack of parental support growing up, he was sentenced to 7 years in hard labour, less time spent in custody, three years of which was suspended on conditions;
    2. The State v Samson (2005) N2799, Cannings J: a 17 year old juvenile pleaded guilty to sexual penetration of a 13 year old. There was no relationship of trust, authority and dependency. He was sentenced to 5 years, 3 of which was suspended upon conditions;
    100. The State v Solo (2005) N3165, Kandakasi J: the 22 year old offender pleaded guilty to the consensual sexual penetration of a 15 year old child. He was sentenced to 5 years, 4 years, 10 months of which was suspended on strict conditions.
         
12. The State acknowledged that there was no use of threats, extensive force or violence or any offensive weapon, the offender pleaded guilty, expressed remorse and is a first time offender. In aggravation that there was a significant difference in age between the offender, at 29, and the victim, at 6. The offence resulted in injury to the victim, involved penile penetration and therefore more painful, a greater feeling of violation and greater degree of risk of sexually transmitted disease. He denied the allegation in the record of interview. The prisoner had been taken care of by the victim’s family, there had been no attempt at compensation or peace with the victim’s family, the emotional and psychological impact on the victim, and the growing prevalence of such offences. It submitted that a sentence of 10 to 12 years was appropriate.
    
13. The State provided the following helpful table of comparative cases, to which some details have been added.
    

Consideration

14. Having regard to Sabiu v The State (2007) SC866 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. I remind myself, however, that the Court was dealing with an offence under s 229A(1)(2) thus attracting a maximum of life imprisonment.
    
15. I have had regard to the considerations identified in Sabiu v The State (2007) SC866 at [11] where they are relevant.
    
16. As the Supreme Court emphasised in that case, however, every sentence must be determined having regard to the circumstances of the particular case before it.
    
17. I would also note that as has been made clear by the Supreme Court many times, sentencing is not a mathematical exercise: Rex Lialu v The State [1990] PNGLR 487; Lawrence Simbe v The State [1994] PNGLR 38;
    Kumbamong v The State (2008) SC1017; David Kaya and Philip Kaman v The State (2020) SC2026.
    
18. It certainly cannot be reduced as perhaps suggested by defence counsel to comparing on a purely numerical basis a list of aggravating matters on one hand with a list of mitigating ones on the other. It is the weight of those matters that must be balanced. Nor is it a case of identifying a list of matters that did not happen and ascribing them a value in mitigation. They are not matters in mitigation; they are simply not matters in aggravation. That is not to say that those matters, or more particularly the absence of them, may not be relevant when considering the overall seriousness of a matter or when having regard to comparative cases, but as a matter of common sense a list of several matters that are absent do not by that fact alone outweigh the matters in aggravation that are present. See also the discussion in State v Bellamy (2021) N8821.
    
19. In this case the offender is about 31 years of age. He is from Paijaka Village Tari-Pori District, Hela Province. His father died in 2006, when he was just 15 years of age. He comes from a family of 6. He is single. He is educated to Grade 6.
    
20. In mitigation this is the offender’s first offence. He is of prior good character. I place great weight on the fact that he has pleaded guilty before the National Court. I take this into account as reflecting his genuine remorse, which he expressed on allocutus, as well as the fact that it has saved the Court, the State and its witnesses the time, cost and, in particular the young victim, the trauma, of reliving the offence at trial. It is very significant in a case like this one. I also accept that he is not very well educated and appears to have lacked strong family support and guidance growing up. I also take account of the fact that no weapon was used. To date there has been no attempt at reconciliation.
    
21. Any term of imprisonment will of course affect the offender. I do not see any material to support counsel’s contention that he is the sole breadwinner for his aged mother. Even accepting that, however, whilst regrettable, it is well established, that except in very extreme circumstances, it is not ordinarily a relevant consideration on sentence: see for example Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
    
22. Against the matters in mitigation, however, the following matters in aggravation are present. There was a significant difference in age between the offender and his victim, of 23 years. The pre-sentence report refers to him as being 41 but his record of interview states that he was 29 at the time of the offence and I will give him the benefit of the doubt on that matter. In addition, regardless of the fact that the State proceeds only under s 229(A)(1), the child was significantly younger than 16 years of age. Whilst I accept that there was no deliberate physical harm caused to the victim, it is clear from the medical report that the incident resulted in some scarring of the vaginal opening. Such injuries should come as no surprise for obvious reasons.
    
23. In addition, it is now well accepted that the impact on the victim of such offences will be great. Whilst not constituting a relationship of trust, authority or dependence, it appears that the victim’s father, a pastor, had employed the offender earlier that year to run the tuck shop at the church grounds, where the offender was allowed to live, and welcomed into the community. In his victim impact statement he says that he is very distressed about his daughter’s future. The offence has brought shame and disgrace to her and her family, and her future is no longer bright.
    
24. Neither the family nor the victim have anything to be ashamed or disgraced about. They have done nothing wrong. I do recognise, however that whilst attitudes are slowly changing, regrettably victims still have to live with the shame and stigma associated with sexual violence. This stigma can have a very real and devastating impact on a child - on their education, their place in the community, their future relationships, and their ability to simply enjoy their childhood. I also have no doubt that the psychological and emotional trauma of that day will have a profound impact on the victim for the rest of her life, not to mention her family.
    
25. Regrettably, these offences are increasingly prevalent. They are often difficult to detect. As Parliament and the Supreme Court has recognised they call for strong personal and general deterrence.
    
26. I remind myself that the maximum in this case is 25 years of imprisonment. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Whilst serious this case is not in that category.
    
27. Having regard to the general circumstances of the case, the personal circumstances of the offender, the aggravating and mitigating factors, the submissions of counsel, the maximum penalty and comparative cases, I sentence the offender to 14 years of imprisonment.
    
28. I exercise my discretion to deduct the time spent in custody since 22 April 2018.
    
29. Defence counsel has asked the court to suspend the sentence. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. Suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.
    
30. Probation Services does not regard the offender as suitable for probation and I see no basis for suspension. There is no support from the victim’s family or community for him to return there. Several attempts to contact the offender’s relatives were unsuccessful and there is no information to support the view that he has a stable place to return where his rehabilitation can be supported. There is nothing to suggest that the offender will suffer excessively in prison and whilst the offender has demonstrated prospects for rehabilitation through his plea I have already reflected that matter in the head sentence. Only service of the sentence in custody will ensure that the offender is adequately punished for his conduct, that the Court appropriately denounces such offences, and that the offender and others are deterred from committing similar offences in the future.
    
31. In the circumstances I make the following orders:
    

Orders

(1) The offender is sentenced to 14 years of imprisonment in hard labour to be served at Bomana Correctional Institution.

(2) Time spent in pre-trial custody, namely 3 years, 4 months, 9 days is deducted from time to be served, leaving a balance of 9 years, 7 months, 21 days.

Sentence accordingly.

_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused