The State v Biason Benson Samson (2005) N2799

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 February 2005
• Citation: (2005) N2799
• Docket Number: CR No 1197 of 2004
• Court: National Court
• Year: 2005
• Judgement Number: N2799

Full Title: CR No 1197 of 2004; The State v Biason Benson Samson (2005) N2799

National Court: Cannings J

Judgment Delivered: 25 February 2005

N2799

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1197 0F 2004

THE STATE

V

BIASON BENSON SAMSON

KIMBE : CANNINGS J

18, 25 FEBRUARY 2005

SENTENCE

Criminal law – indictable offence – Criminal Code, Division IV.2A. Sexual Offences Against Children – Section 229A, engaging in act of sexual penetration with a child under the age of 16 years – sentence on plea of guilty – offender aged 17 years, child aged 13 years – lack of consent – offender acted alone – no weapons used or aggravated physical violence – no physical injury – no existing relationship of trust, authority or dependency – isolated incident – offender did not surrender – cooperated with police – no trouble caused with victim since the incident – nothing tangible done towards repairing his wrong – determination of maximum penalty – expression of remorse – first offender – youthful offender – limited educational background – starting point for head sentence – new law – few precedents – identification of relevant considerations – application of relevant considerations – whether appropriate to suspend whole or part of sentence – need for properly documented pre-sentence report – sentence of 5 years – 2 years must be served – balance of 3 years may be suspended on application to the National Court.

Cases cited

The State v Eddie Trosty (2004) N2681

The State v Kemai Lumou (2004) N2684

The State v Pennias Mokei (No 2) (2004) N2635

The State v Peter Lare (2004) N2557

F Popeu for the State

O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to the offence of engaging in an act of sexual penetration with a child under the age of 16 years.

BACKGROUND

Incident

The incident giving rise to the charge took place at Mamota, West New Britain, on the afternoon of 16 July 2004. It was alleged that the accused engaged in an act of sexual penetration with a girl under the age of 16 years, who is referred to as the complainant.

Indictment

On 18 February 2005 he was brought before the National Court and faced the following indictment:

Biason Benson Samson of Lambe, Vitu, Talasea in West New Britain Province stands charged that he on the 16th day of July 2004 at Mamota in Papua New Guinea engaged in an act of sexual penetration with one Kesia Gaga a child under the age of 16 years.

The indictment was presented under Section 229A of the Criminal Code.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea:

On 16 July 2004, around 3.00 pm, the accused was at his parent’s house, at block No 1025, with the complainant. The complainant resides on the neighbouring block, No 1024. The accused sent the complainant to her house to bring him a spade to dig for some wildfowl eggs. He told her to bring the spade to the boundary of the blocks. The complainant did as she was told. When she brought the spade, the accused pulled her into the bush and forced her to the ground. He then removed her shorts and proceeded to have sexual intercourse with her, without her consent. He told her not to report the matter. However, she told her mother who reported the matter to the police.

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the prisoner.

ANTECEDENTS

The prisoner has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

It is true that I committed this offence. This is the first time that I have done this kind of thing. I have a block to look after. I live there with my younger brothers and sisters. My father is deceased. My mother has remarried and gone to live elsewhere with her new husband. I ask the court for mercy. If the court gives me a non-custodial sentence I will be able to compensate the victim for what I have done.

SUBMISSIONS BY DEFENCE COUNSEL

Mr Oiveka referred to a number of mitigating factors. The prisoner has pleaded guilty, saving the trouble and expense of a trial. He admitted to the police at the outset what he had done. He accepts responsibility for his actions. He committed the offence at a tender age. He was only 17. He cooperated with the police. He is a first offender.

He attends the Catholic Church. He is educated to grade 4. He has lived on an oil palm settlement all his life. He lives at the block with his uncle. He is willing to pay compensation but the complainant’s family refuse to accept any.

SUBMISSIONS BY THE STATE

Mr Popeu submitted that it was important to consider the prevalence of this offence. It was a serious offence and the court’s decision should aim to deter similar behaviour by others.

AGE

During the course of the proceedings an issue arose as to the prisoner’s age. The committal documents had him aged 17. He was committed on 17 September 2004. I asked him in court and he said he was 17, still. The pre-sentence report has him aged 19. It is an important issue in this case and I need to make a finding. I give the benefit of the doubt to the prisoner. He looks young. I find that he was 17 when he committed the offence (7 months ago) and that he is still only 17.

RELEVANT LAW

Section 229A

Section 229A makes the maximum penalty subject to two variables. It states:

(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.

The penalty regime

It is as follows:

· if, at the time of the offence, the child was aged 12 years or more AND there was not an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to 25 years imprisonment; but

· if, at the time of the offence, either the child was under the age of 12 years OR there was an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to life imprisonment.

Relationship of trust, authority or dependency

This term is defined by Section 6A of the Criminal Code, which states:

(1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where—

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care and control.

Present case

In this case the child who was sexually penetrated by the prisoner was over the age of 12 years. So the key issue is whether, at the time of the offence, there was an existing relationship of trust, authority or dependency between them.

I asked Mr Popeu to address that issue. He said it was not part of the State’s case that the prisoner and the child were related or that there was in any way an existing relationship of trust, authority or dependency. I accept that Section 229A(3) does not apply.

Therefore the prisoner is liable to imprisonment for a term not exceeding 25 years, under Section 229A(1).

Discretion

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

· a shorter term of imprisonment may be imposed (Section 19(1)(a)); or

· a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or

· the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or

· the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or

· the court can suspend all or any portion of the sentence imposed, subject to conditions...