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State v Gurang (No 2) [2021] PGNC 380; N9137 (8 September 2021)

N9137

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1142 OF 2020

THE STATE

V

SONGSONG GURANG
(NO.2)
Prisoner

Madang/Karkar: Geita J
2021: 3^rd, 6^th, 8^th September

CRIMINAL LAW – Sentence – conviction after trial - Sexual Penetration of a Child under the age of 16 years, Section 229A (1) of the Criminal Code.

CRIMINAL LAW – Sentence – child 15 years at the time – crime committed with aggravation – lack of remorse- no compensation paid – maintains innocence after conviction - Personal and general deterrence considered.

Cases Cited:

Goli Golu [1979] PGSC9 PNGLR 653
The State v Anton Tugumar [2013] N5377
The State v Felix Ndrowoh [2013] N6377
The State v Kemai Lumou [200]) N2684

Counsel:

Francis K. Popeu & Deborah Ambuk, for the State
Delilah Ephraim, for the Prisoner

RULING ON SENTENCE

8^th September, 2021

1. GEITA J: This is the decision on sentence for the prisoner Songsong Gurang who was convicted on 29 June 2021 of engaging in an act of sexual penetration of a child under the age of 16 years on Karkar Island.

2. On 1^st of July, 2020 between 3 and 4 pm, the complainant then a grade 5 student from Urugen primary school went to her garden after school with a friend Rose and whilst in the garden harvesting some produce, the accused approached her and sensing that the accused was nearby the victim decided to give way to him In doing so she turned her back towards the accused to allow him room to pass by, In the pretext of walking past her the accused grabbed the victim from behind. At the time he was armed with two knives and threatened the young victim to remove her clothes. He then sexually penetrated her against her wishes. The accused threatened the victim not to tell anyone. If she did, she would be subjected to further harassment or in her own words “your young life would be cut short”.

3. The relevant law contravened in this case is s.299A (1) of the Criminal Code Act. This section provides that a person who engages in an act of sexual penetration with a child under the age of 16 is guilty of a crime. Subject to subsection (2) (3), imprisonment of a term not exceeding 25 years. For the moment sections (2) & (3) are not applicable. It follows that the maximum penalty as provided under section 1 is a term of imprisonment not exceeding 25 years.

4. As regards what would be the appropriate sentence in this case, section 19 Criminal Law also comes into play. Furthermore, the general principle is that the maximum punishment should be awarded only in the worst cases. This case is not one of those in the worst category and so the maximum is avoided. (Goli Golu [1979] PGSC9 PNGLR 653)

5. The prisoner has no prior convictions. A pre-sentence report prepared on his behalf details his family background and his religious affiliations. He left school in 2014 and does not know how old he is. Nonetheless he got married in 2019, so he must be of mature age. His community members were invited to comment on his behaviour, and they have responded with mixed reasons. His suitability for probation was not recommended.

6. As to the administration of allocutus he said he has nothing much to offer save to be considered for probation and for Court to have leniency.

7. In submissions Counsel of defence Ms Ephraim concedes that there was an absence of expression of remorse in his allocutus and in his pre-sentence report. No attempt of reconciliation was recorded. His community and friends however hold him up to be a good law-abiding person. Notwithstanding his aggravating factors Ms Ephraim submitted that this was not the worst type of case and the maximum sentence be avoided. The prisoner is a villager, a first-time offender and no sexually transmitted deceases were transferred. Defence submitted that a sentence of between 8- 10 years be considered less his pretrial custody period of 1 year and 2 weeks to be deducted.

8. Counsel of State Mr Popeu submitted that this case is serious in that the crime was committed from within a close-knit community on Karkar Island. The circumstances under which this crime was committed defies logic in that prisoner has used this crime of rape to retaliate against the victim’s family over a long outstanding land dispute between their two families. He argued that the accused was a sexual predator, and his proper place was the prison. The prisoner has not expressed remorse to the victim. His mitigating factors are few in that he was a first-time offender.

9. The prisoner’s aggravating factors are many. They include the case of a non-consensual sex, force used, age difference, 15 years and an adult of unknown age (Married man), shaming and stigma and her education disrupted, risk of unwanted pregnancy and transmission of STD. Prevalence of such crimes.

10. Mr Popeu submitted that the prisoner’s aggravating factors outweighed his remaining mitigating factors. The prisoner used a knife to execute the act of sexual intercourse on a 15-year-old child, he was found guilty after trial as such a head sentence of between 10 to 12 years was justified. He further submitted that the suspension of any portion of sentence was not justified, under the circumstances.

11. As regards the decision-making process, I consider that the case of The State v Kemai Lumou (2004) N2684 to be the appropriate one as its aggravating factors resonate in this case. The prisoner was found guilty after trial and sentenced to 17 years. In this case I consider a head sentence of 15 years to be appropriate, considering the fact that you are a first-time offender.

12. As regards the prevalence of sexual offence against children there is a limit to what the Courts can do to prevent this sort of crime from happening. One thing the Courts can do is impose higher sentences as a deterrence. I echoed the similar sentiments in the following cases I dealt with in Wewak and Manus Provinces in 2016. (The State v Anton Tugumar (2013) N5377 and The State v Felix Ndrowoh (2013) N6377.) I expressed concern that such offences were on an upward trend then. Five years later in 2021 I am still hearing such cases. This is testament indeed that the crime is increasing hence the need for higher deterrence sentences. As if to rub salt into the wound you did not show any signs of remorse to the victim during trial, during allocutus and even after you were found guilty.

13. Furthermore, in this case you put the victim through distress and anxiety of a full trial. Not to mention that the trial was conducted on your Island in KarKar where you all live in a close-knit family. In the case of The State v Kemai Lumou (supra) Kandakasi J (as he was then) said: “...you denied the charge. That forced the victim...to come and relive the crime you perpetrated against her. She was in that way forced to come into Court and describe your forceful acts of sexual intercourse with her. Given that people in our society do not freely talk about such things as sex, you put her under a lot of unnecessary pressure and shame to come to Court and testify against you.”

14. As to whether all or some of the sentence should be suspended, the Prosecution submitted against it. I am more inclined to agree with Prosecution submissions on this point.

Sentence

15. You Songsong Gurang, having been convicted on one count of engaging in an act of sexual penetration of a child under the age of 16 years, is sentenced to 15 years imprisonment less any pre-trial custody available to you.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner