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State v Imina [2021] PGNC 424; N9196 (23 August 2021)

N9196

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 573 0F 2018

THE STATE

V

MOSES IMINA

Bomana: Sambua, A J
2021: 12^th, 18^th & 23^rd August

CRIMINAL LAW – sentencing – engaging in act of sexual penetration with a child under the age of 16 years in circumstances of aggravation – guilty plea – offender a 35-year-old man; victim, a 6-year-old girl – Criminal Code, Section 229A(1),(2), (3) – The pre –trial custody period of 3 years 10 months 1 week and 4 days is deducted- The prisoner is to serve the balance which is 11 years 1 moth 2 weeks and 3 days.

CRIMINAL LAW – PRACTICE AND PROCEDURE - S. 229A(1)(2) & (3)of the Criminal Code – engaging in act of sexual penetration with a child under the age of 16 years in circumstances of aggravation – Elements of offence – Duplicity – The rule against duplicity prohibits the prosecution alleging two or more offences arising out of the same set of circumstances -State Prosecutor to elect which charge to pursue and which not to pursue.

The offender is a 35-year-old man who pleaded guilty to sexually penetrating a six -year-old girl, a close relative, in an urban settlement setting. This is the judgment on sentence.

Held:

(1). The rule against duplicity prohibits the prosecution alleging two or more offences arising out of the same set of circumstances.

(2). The State Prosecutor must elect on which charge to be pursued and which not to be pursued.

(3). The maximum penalty in this case is life imprisonment and a useful starting point is 20 years imprisonment.

(4) Mitigating factors are: offender acted alone; no weapon or aggravated violence; no permanent physical injury to the victim; no STD passed on; isolated incident; no further trouble; first-time offender; pleaded guilty.

(5) Aggravating factors are: large age gap; tender age of victim; no consent.

(6) A sentence of 15 years was imposed. The pre –trial custody period of 3 years 10 months 1 week and 4 days is deducted. The prisoner is to serve the balance which is 11 years 1 month 2 weeks and 3 days.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Arnold Kulami (No 2) CR No 737 of 2007, 26.06.09
The State v Charles Rome CR No 502/2007, 13.07.07
The State v David Kisiluvi Buso CR No 310 of 2003, 17.02.09
The State v Francis Guandi Borie CR No 289/2007, 16.10.07
The State v John Ritsi Kutetoa (2005) N2814
The State v Kolton Duen Songones CR No 778/2007, 22.11.07
The State v Paul Gule CR No 686/2006, 24.08.07
The State v Sawan Raumo CR No 876/2007, 18.09.07
The State v Timothy Bipi (2009) N3608
The State v Joshua Yawijah & Dennis Aviupa [2019] PGNC 52; N7767
The State v Solis Ima [2020] PGNC 419; N8676
The State v Amu Aru [2016] PGNC 424; N6917
Stanley Sabiu v The State [2007]SC866

SENTENCE

Counsel

A Kaipu, for the State
F Timbi, for the offender

23^rd August, 2021

1. SAMBUA, AJ: This is the decision on sentence for a 35-year-old man, Moses Imina, who was then 31 years old who pleaded guilty to one count of engaging in an act of sexual penetration with a child under the age of 16 years, a 6-year-old girl, "M", his second cousin brother’s daughter.
   
2. Initially the State presented an indictment containing two counts of sexual penetration arising out of the same act. First by digital (finger) penetration and the second charge by penal penetration. The charges are:
   
   1. MOSES IMINA of SIMBARI VILLAGE, MARAWAKA, EASTERN HIGHLANDS PROVINCE stands charged that he on the 12^th of August 2017 at Kaugere in the National Capital District in Papua New Guinea sexually penetrated a child under the age of 16 years, namely Melita Dickson with his fingers
      
   2. MOSES IMINA of SIMBARI VILLAGE, MARAWAKA, EASTERN HIGHLANDS PROVINCE stands charged that he on the 12^th of August 2017 at Kaugere in the National Capital District in Papua New Guinea sexually penetrated a child under the age of 16 years, namely Melita Dickson with his penis
      
3. The first count was discontinued and deleted after several exchanges were made with the State Prosecutor as to the nature and the circumstances giving rise to the two counts as it was bad for duplicity in my view which I will allude to in the course of this judgement.
   
4. The brief facts that gave rise to this charge were that sometime between 6.00am and 7.00am on the 12^th August 2017, the prisoner was at Dodo Heights in Sabama NCD. The victim was the daughter of the prisoner’s second cousin brother and they live in the same house. On that morning the prisoner was under the influence of liquor and saw the victim at the place where they used to have shower. The prisoner approached and told her to go with him, but she refused. The prisoner then lied to her by saying that her father was waiting for her at Kaugere with a juice and bun. The prisoner then took the victim to Kaugere. From there he took her towards a hill near Kaugere rugby field and told her to lay down on the ground face up and removed her clothes. The prisoner penetrated her with his penis, but the victim cried out in pain and he stopped. He then brought the victim onto the road and sent her home. When the victim arrived at the house, her mother suspected something was wrong with the victim and she checked the victim and discovered that the victim’s vagina was swollen. She questioned the victim and the victim told her that the prisoned put his finger and penis into her vagina. She then took her to the hospital for medical check and then reported the matter to the police.
   
5. Clearly the two counts arose out of the same set of circumstances. In my view it does not matter which took place first and which took place after. It was during the same course of action or the chain of events. Hence there cannot be two different charges but one. Hence the indictment was not accepted and endorsed. It was handed back to the State Prosecutor to correct the indictment.
   
6. After the State Prosecutor had corrected the indictment by deleting the first count which contained the charge of digital sexual penetration, he handed up the amended indictment which contained the penal sexual penetration charged. The amended indictment was accepted and endorsed, and the plea hearing continued.
   
7. In cases similar to this, the State Prosecutor must decide or elect which charge to pursue and which not to pursue instead of lumping all possible charges arising out of the same set of circumstances. After all the penalty will be same and ordered to be served concurrently.
   
8. This is similar to a case of an armed robbery of a motor vehicle. In order for a crime of armed robbery of a motor vehicle to be completed, the motor vehicle has to be driven away. Similarly, State cannot indict the accused with two charges i.e. one for armed robbery of a motor vehicle and one for illegal or unlawful use of a motor vehicle. The State Prosecutor must decide which of the two charges he wants to proceed with. In this case it will be desirable for the State to proceed with the armed robbery of the motor vehicle charge instead of the illegal or unlawful use of a motor vehicle. The State can indict for illegal or unlawful use of a motor vehicle only if the motor vehicle is being used to commit another offence or is being driven around at another location after it has been robbed.
   
9. In the case of State v Joshua Yawijah & Dennis Aviupa [2019] PGNC 52; N7767 (11 March 2019) CR (FC) 266 and CR 910 of 2017 Waigani Berrigan, J, 2019: 15, 18 and 20 February; 11 March, both accused persons pleaded not guilty to the following charges contained in the indictment, namely that they Joshua Yawijah and Dennis Aviupa:

Count 1: “on the 29^th day of December 2016 at 3 Mile, National Capital district in Papua New Guinea stole from one Billy Kauri with actual violence, a bag containing K420 in cash and 14 packets of cigarettes valued at K202, and a bag valued at K20, all the property of the said Billy Kauri.

And at the time the aforesaid were armed with a dangerous weapon namely an M16 rifle and were in the company of each other and that of other persons,” contrary to s. 386 (1) (2) of the Criminal Code (Ch. 262) (the Criminal Code).

Count 2: “on the 29^th day of December 2016, at Jack Pidik Park, National Capital District in Papua New Guinea stole from one Billy Kauri with actual violence, K287 in cash and one Alcatel mobile phone valued at K360, and a pair of KT shoes valued at K75, all the property of the said Billy Kauri.

And at the time the aforesaid were armed with a dangerous weapon namely an M16 rifle and were in the company of each other and that of other persons,” contrary to s. 386 (1) (2) of the Criminal Code.

Count 3: “between the 29^th day of December 2016 and the 1^st day of January, 2017 at Badili, National Capital District in Papua New Guinea, unlawfully detained one Billy Kauri in the Badili Police Station cell, against his will,” contrary to s. 355 of the Criminal Code.

Count 4: “on the 29^th of day of December 2016 at 3 Mile General Hospital and Jack Pidik Park, National Capital District in Papua New Guinea whilst being employed in the Public Service as Police Officers, did in abuse of their authority of their office, forcefully commanded, searched and stole K707 in cash, one Alcatel mobile phone valued at K360, 14 cigarette packets valued at K202, a pair of KT shoes valued at K75, and a bag valued at K20, all the property of one Billy Kauri, prejudicial to the lawful rights of the said Billy Kauri,” contrary to s. 92(1) of the Criminal Code.

Count 5: “between the 29^th day of December 2016 and 1^st day of January 2017 at Badili Police Station, National Capital District, Papua New Guinea whilst being employed in the Public Service as Police Officers, did in abuse of their authority of their office, unlawfully detained one Billy Kauri at the Badili Police Station cellblock, prejudicial to the lawful rights of the said Billy Kauri,” contrary to s. 92(1) of the Criminal Code.

10. Prior to the close of the prosecution case, she advised counsel for the State that, it was her view that Count 4 on the indictment was duplicitous. The rule against duplicity prohibits the prosecution alleging two or more offences in a single charge: Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 applying DPP v Merriman [1973] AC 584.
    
11. In that case counsel declined the opportunity to either amend it or elect on which aspects he wished to proceed. Whether or not a charge is duplicitous is always a question of degree: Walsh v Tattersall, supra. Where a charge is duplicitous the prosecution is expected to apply to amend the charge, see R v Radley (1974) 58 Cr App R 394. In some instances, it may be necessary to prefer an additional charge. In that case, however, the count revealed numerous issues of duplicity and would not have been readily cured. The count referred to the offence taking place at two separate locations, and through at least three different modes, namely that the accused “forcefully commanded, searched and stole”. At least one of those, stealing, is an entirely separate offence with its own elements. Counsel conceded on submissions on verdict that the count should fail.
    
12. She stated that it was not necessary for her to decide but, in general terms, whether or not an offence under s. 92 could properly be regarded as a “continuing offence” will in her view depend on the circumstances of the case concerned. As will whether or not the failure to prove certain particulars would necessarily be fatal. In most cases it would not, provided they are not essential particulars. In that case, however, the reference in Count 4 to two separate locations, in combination with items from both locations, was on its face duplicitous. As was the reference to the multiple arbitrary acts alleged, which were also by their nature unclear. The count was therefore bad for duplicity and cannot stand. The accused were each acquitted of Count 4 in the indictment.
    
13. She further stated that in considering the terms of a charge under s. 92 of the Criminal Code in the future it may be helpful to note that the provision recognises that those who are entrusted to exercise the power and authority of public office must be accountable to the public. The offence involves, broadly speaking, a wilful abuse of the authority of office that amounts to an abuse of the public trust: see Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868 (UK). Thus, the arbitrary act prejudicial to the rights of another for the purposes of s.92 must have a sufficient connection with the accused’s public office: Attorney General’s Reference No 3 of 2003.
    
14. And furthermore she stated that in that case the gravamen of the offence alleged in Count 4 was arguably the arbitrary exercise of a police officer’s right to lawful seizure, or in other words, the unlawful seizure of items in the possession of the complainant.
    
15. She also noted there that it was unnecessary in her view to allege in Count 4 that the property belonged to the complainant. Ownership of the items taken is an element of the robbery charged under Count 2 but as above, an offence under s. 92 of the Criminal Code has a different focus, namely the abuse of the rights associated with public office and not the usurpation of property rights as such. Whilst not an issue in this case the averment of ownership adds a potentially unnecessary complication and additional burden on the State for the purposes of s.92.
    
16. In the case of State v Solis Ima [2020] PGNC 419; N8676 (8 December 2020), Waigani: Berrigan J, 2020: 20^th October and 8^th December. The accused presented two documents to the Internal Revenue Commission (IRC), both of which he knew to be false, namely: an identification card purportedly issued by “JMart”, bearing his photograph and name and stating that he was employed as JMart’s “Admin and HR Clerk”; and a letter on JMart letterhead authorising him as the “duly appointed representative to collect and receipt any IRC cheque due for JMart Limited”. The accused was never employed by JMart Limited and had no authority to collect any cheque on its behalf. Upon presentation of the false documents to the IRC, the accused collected a cheque payable to JMart Limited in the sum of K583,353.70.The accused was charged with obtaining goods by false pretence on Count 1 of the indictment and uttering false documents on Count 2 of the indictment, contrary to s 404(1)(a) and s 463(2) of the Criminal Code, respectively. Upon arraignment the accused pleaded not guilty to obtaining goods by false pretence and guilty to uttering false documents. A provisional plea of guilty was recorded on Count 2 and a trial proceeded on Count 1. It was held that Count 2 was not defective for pleading the uttering of the false identification card and the false authorisation letter as one offence.
    
17. In that case her Honour Berrigan, J stated that the rule against duplicity prohibits the prosecution alleging two or more offences in a single charge: Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 applying DPP v Merriman [1973] AC 584. See The State v Yawijah (2019) N7767. Where a charge is duplicitous the prosecution is expected to apply to amend the charge, see R v Radley (1974) 58 Cr App R 394. In some instances, it may be necessary to prefer an additional charge.
    
18. She stated that the question as to whether an accused has committed one or more offences is best determined by applying common sense in deciding what is fair in the circumstances: Merriman (supra). In that case the accused in the course of one criminal transaction uttered two documents that he knew to be false for the single purpose of representing to the IRC that he was authorised to collect a GST refund cheque payable to JMart Limited on its behalf. Both documents were uttered together by the accused at the same time as part of a single criminal transaction or enterprise. In the circumstances, it was proper to charge the accused in one count with uttering the two documents.
    
19. I fully endorse and apply the sentiments expressed by Her Honour Justice Berrigan in the above two cases as relevant and are equally applicable to this case justifying the action taken by the State in deleting the first count and proceeding with the second count.
    
20. In this case the prisoner has been convicted of one count of engaging in an act of sexual penetration with a child under the age of 16 years contrary to Section 229A (1) of the Criminal Code in circumstances of aggravation, under Section 229A (2), the child was under the age of 12 years, and that, under Section 229A (3), there was an existing relationship of trust, authority or dependency between the accused and the child.
    
21. The prisoner’s personal particulars are that he is a 35 year old man from Simbari village in the Eastern Highlands of Papua New Guinea. He is single and of the Catholic faith. He graduated from Badili Vocational Centre but was unemployed at the time of the offence. He has been in custody since the 9^th of October 2017. That will be 3years 10 months 3 days.
    
22. In allocutus when asked if he had anything to say in regard to what type of punishment, he wants the court to impose on him, he said that he wanted his lawyer to talk for him.
    
23. As the offender has pleaded guilty he will be given the benefit of doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). I will take into account that there was no aggravated physical violence used in the assault on the victim. The medical evidence (the girl was examined the same day at Port Moresby General Hospital) which shows that she suffered no permanent injury but revealed that the vulva and the labia had blood stain mildly swollen. No sexually transmitted disease was detected.
    
24. Mr. Timbi of counsel for the prisoner submitted that a sentence of 5-10 years imprisonment is an appropriate sentence for this case.
    
25. He further submitted that the mitigating factors in this case far outweigh the aggravating factors that are all in favour of the prisoner which warrants for a lesser sentence upon the discretion of this Honourable Court.
    
26. The prisoner has been in custody since 09^th October 2017 which would bring the total period of detention to about three (3) years, ten (10) months and 3 days. They had asked this court to use its discretion under the Criminal Justice (Sentencing) Act 1986 and deduct this period from the head sentence.
    
27. Taking all these factors into consideration, as well as the sentencing trends in the case law authorities they have referred to, they submitted that part of the sentence proposed should be suspended.
    
28. Mr Kaipu for the State submitted that victim suffered injuries to her vagina which is supported by the medical report and that there was a big age difference of about 25 years and therefore this case calls for a sentence of seventeen years and referred to two cases. The first case is a National Court case of State v Amu Aru [2016] N 6917 (14^th March 2016) and the second case is a Supreme Court case of Stanley Sabiu v State [2007]SC866 (27^th June 2007).
    
29. In the case of State v Amu Aru [2016] PGNC 424; N6917 (14 March 2016) which was a Kainantu case presided by Her Honour Polume-Kiele, J, the facts were that on the 18^th of June 2015, the mother of the victim, Elis Max had sent her daughter namely Rose Max, a child under the age of 16 years old (aged 9 years then) to go to the prisoner’s house to get his lighter to light a fire to cook food. The victim on following her mother’s instructions did as she was told and went to her cousin’s house (the prisoner’s house) and asked him for a lighter and the prisoner gave her a lighter which the victim took to her mother and she lit a fire. The victim then returned the lighter to the prisoner’s house. Upon returning the lighter, the prisoner however grabbed the victim and pulled her into the house, took off her clothes and sexually penetrated her. The victim did not tell her mother of the incident but on the same afternoon when she was having a bath, it became very painful and that was when the mother checked the victim and found that she was bleeding and blistered. She then reported the matter to the police and the offender was arrested and charged with the offence of sexual penetration of a child under the age of 16 years under s 299A (1) (2) (3) of the Criminal Code. This offence carries a maximum penalty subject to Section 19 of imprisonment to life. It was held that:
    
    • (1) The range of sentences determined in relation to sexual penetration of a child under 16 years old varied from 2 years to 20 years depending on the given facts and circumstances of a case.
    • (2) In considering what is an appropriate sentence to be imposed in the light of the present case, this court will give due consideration to circumstances where aggravating facts exist such as:
      
      • (i) Use of lethal weapon such as a bush knife or axe on an unarmed

victim;

• (ii) Offender is in a position of trust;
• (iii) The offender inflicts physical violence on the victim;
• (iv) Where there is pre-planning;
  

(3) The prisoner’s mitigating factors are: he pleaded guilty early, he is a first time offender, cooperated with the police and is remorseful.

(4) The aggravating factors against the prisoner are that he is in a position of trust and there is an element of pre-planning and prevalence of offence.

(5) A head sentence of 15 years imprisonment imposed, less period of 8 months

8 days that the prisoner has been held in custody.

30. In the Supreme Court case of Stanley Sabiu v State [2007] PGSC 24; SC866 (27 June 2007) which was a case in Wewak, their Honours Mogish, Manuhu & Hartshorn, JJ This appeal was heard on 26 June 2007. The Appellant appeals the sentence of 17 years imprisonment that was imposed upon him by the National Court at Vanimo after he pleaded guilty to sexually penetrating a child under the age of 12 years, contrary to s.229A(2) Criminal Code. The Appellant lists five (5) mitigating reasons why the sentence should be reduced. The State opposes the appeal as it contends that those five (5) mitigating reasons have already been taken into account, that the appellant has not shown any error by the trial judge and that the sentence of 17 years imprisonment is appropriate in the circumstances. The facts of the case were that on 31 May 2005, the Appellant followed the victim, his 6 year-old nephew, into some bushes and forcibly had anal intercourse with him, causing the boy to suffer bruising, bleeding and pain as a consequence. The Appellant explained his actions by saying that he was upset that he had not received part of the bride price for his sister, the victim's mother.
    
31. The issue now is what would be an appropriate sentence in the circumstances of this case. There were two circumstances of aggravation charged in the indictment: the child victim was under the age of 12 years and there was an existing relationship of trust, authority and dependency between the offender and the child. Furthermore, the medical report stated that there was blood stain and the victim’s genital was mildly swollen. The maximum penalty is life imprisonment. As the maximum penalty is life imprisonment, I consider that a useful starting point is 20 years imprisonment
    
32. In determining what would be an appropriate sentence, I refer to the table of cases involving victims who were under 12 years old by Cannings J in the case of State v Olwin Noel [2012] PGNC20; N4664(10^th May 2012).

33. The mitigating factors are that:

(a) The prisoner has no prior conviction.
(b) He is a first-time offender
(c) The offender surrendered and cooperated with the police.
(d) He cooperated from the outset and admitted committing the offence in the Record of interview.
(e) The offender pleaded guilty which saved time and costs involved in running a trial.

34. The Aggravating factors are that:
    
    • (a) the victim was a blood relative and

(b) was 12 years old and
(c) he was in a position of trust and authority and as such the victim depended on him to protect her but instead, he sexually assaulted her.
(d) this type of offence is prevalent in PNG.

35. In sentencing the prisoner, I have taken into consideration both the mitigation factors which were submitted by the prisoner’s lawyer and also the aggravating factors submitted by the State. I have also noted the sentencing trend in the table of cases mentioned above and I am of the view that the appropriate sentence in circumstances of this case is 15 years in hard labour.
    
36. The pre-trial custody period which is 3 years 10 months, 1 week and 4 days will be deducted from the head sentence of 15 years leaving a balance of 11 years 1 month, 2 weeks and 3 days.
    
37. I have also considered the prisoner’s lawyer’s submission for a partial suspension of the sentence imposed however I decline to do so as I consider this type of case as very serious cases of violations of our young girls and boys and the women folk and therefore calls for a deterrent and punitive sentence.
    
38. Therefore, the order of the court is that the prisoner is sentenced to 15 years in hard labour. The pre –trial custody period of 3 years 10 months 1 week and 4 days is deducted. The prisoner is to serve the balance which is 11 years 1 months 2 weeks and 3 days.
    _________________________________________________________________
    Public Prosecutor: Lawyer for the State
    Public Solicitor: Lawyer for the Offender