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State v Samasam [2024] PGNC 219; N10883 (7 May 2024)

N10883

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 532 OF 2021

THE STATE

V

FREDDIE SAMASAM

Lae: Kangwia J.
2024: 6^th & 7^th May

CRIMINAL LAW – Sentence – persistent Sexual penetration by uncle– breach of trust relationship – guilty plea by first -time offender – no genuine remorse - prevalence of offence - intent of parliament to increase penalty - deterrence sentence warranted.

Cases Cited
Goli Golu v State [1979] PNGLR 65
State v Gideon Wawa CR 1176 of 2020

Counsel
N. Pare, for the State
J. John, for the Defence

7^th May 2024

1. KANGWIA J: Freddie Samasam appears as a prisoner for sentence after he was convicted on his guilty plea to one count of sexual penetration of a child under the age of 16 years pursuant to s 299A (1) & (3) of the Criminal Code Act.

2. The facts to which he pleaded guilty to state that the offender is an uncle to the victim. On a date between 16 August and 30 September 2019 the offender held the victim at the beach and sexually penetrated her. Thereafter he continued to sexually penetrate her and stopped in November 2019.

3. He is believed to be 35 years old and married with two children.

4. On his allocutus he said, “I say sorry to the heavenly father for what I did. Sorry for taking the time of the court lawyers, CIS and everyone else.
I say sorry to the victim and to my wife and children for my conduct in breaking the law. I am a first-time offender. I ask for leniency with probation”.

5. The Pre-Sentence Report suggests that the offender is a suitable candidate for probation and further suggested a partially suspended sentence with probation orders. The two persons interviewed by the probation service supports the recommendation. The father of the victim who was also interviewed prefers a custodial sentence.
6. On his behalf Mr John after referring to comparable sentences for similar cases submits that a starting sentence of 10 years with suspensions was appropriate. The offender saved the embarrassment the victim would face by pleading guilty. He is a first-time offender who expressed genuine remorse. The victim did not suffer any adverse consequence from the actions of the offender, and he cooperated with police.

7. On behalf of the State Mr Pare through a written submission after referring to comparable sentences submits that a head sentence of 25 years is appropriate. The offence is prevalent in Lae and the country and the need for a deterrent sentence is high.

8. While acknowledging that the offender pleaded guilty early as a first-time offender and cooperated with police the aggravating factors were that the victim was 15 years old with a mental impairment at the time of the offence Sexual penetration was forced upon the victim in a breach of trust relationship when the offender was an uncle to the victim. Sexual penetration was repeated over time. The victim will live with the trauma and stigma for the rest of her life. There has been no reconciliation since the offence was committed.

229A. Sexual penetration of a child.

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

9. The combined effect of this provision to the circumstances of the present case is that the offender is facing life imprisonment. He sexually penetrated a relative child under the age of 16 years in an abject breach of the trust relationship that naturally exists in families. However, the maximum prescribed penalty shall not apply based on the principle of law that the maximum prescribed penalty is reserved for the worst category of each case. (See Goli Golu v State (1979) PNGLR 653).
10. The offence is prevalent because of the easy access available to an offender who is related by any means to the victim. It is more difficult to do the same to a stranger. In such situations it is fair to assume that lust blinds the moral conduct and sound reasoning of a human being and instead replaces it by animal instincts.

11. This type of behavior must be curtailed to safeguard unsuspecting and vulnerable would-be children from being preyed on by relatives. Parliament increased the penalty regime for sexual offences against children with the intention of protecting vulnerable children from sexual abuse. The Courts have answered the call of parliament and are imposing high sentences, but the offence does not seem to have abated. It is evident through the numerous cases that go before the Courts especially in Lae.

12. Sexual penetration on the victim in the present was a deliberate act of invasion into the privacy of an innocent and mentally infirm child and violating her innocence by the person who had a moral obligation to protect and safeguard after the mother had passed away. A breach of trust situation in the most depraved of all immoral conduct was committed. A deterrent sentence is warranted in the circumstances.

13. The Pre- sentence Report cannot be sustained under the circumstances of the present case. The likelihood or reoffending is apparent. The victim and the offender are relatives living in proximity. There is no evidence that the offender and the victim will be physically separated from each other if the offender is allowed to return home with a suspended sentence.

14. As to what an appropriate sentence should be I am ably assisted by counsel with comparable sentences in similar cases in this country. The sentences referred to by counsel for the offender stand at lower than 20 years imprisonment.

15. In the case of State v Gideon Wawa CR 1176 of 2020 in a case of sexual penetration on a niece by a married man I said, sentences for aggravated sexual penetration should start at 25 years being the maximum prescribed penalty for sexual penetration simpliciter. To go up or down would depend on the facts and circumstances of each case.

16. I maintain that proposition and stand to be corrected. That proposition in my view is consistent with what parliament intended. Parliament treated aggravated sexual penetration as more serious than ordinary sexual penetration by separating the prescribed penalties and the sentence the Courts impose must reflect that. That does not seem to be the case in the cited cases. The cited cases have treated aggravated sexual penetration as ordinary cases which is in my humble view is a deviation from the intent of parliament.

17. The only mitigating factors operating that averts the suggested starting point of 25 years from being imposed is that he pleaded guilty early and averted the victim from reliving the ordeal she went through the numerous times the act of sexual penetration was committed. He is also a first-time offender. He expressed remorse on allocatus but it was not genuine. There is no evidence of any expression of remorse to the victim.

18. Therefore, the head sentence shall be 20 years for the prisoner. From the 20 years the period in custody till today shall be deducted and the prisoner shall serve the balance at CIS Buimo.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence