The State v John Ritsi Kutetoa (2005) N2814

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 March 2005
• Citation: (2005) N2814
• Docket Number: CR No 26 of 2002
• Court: National Court
• Year: 2005
• Judgement Number: N2814

Full Title: CR No 26 of 2002; The State v John Ritsi Kutetoa (2005) N2814

National Court: Cannings J

Judgment Delivered: 22 March 2005

N2814

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 26 0F 2002

THE STATE

V

JOHN RITSI KUTETOA

BUKA : CANNINGS J

14, 16, 22 MARCH 2005

SENTENCE

Criminal law – indictable offence – Criminal Code, Division IV.2A, Sexual Offences Against Children – Section 229A, sexual penetration of a child – sentence on plea of guilty – offence occurred prior to commencement of law under which indictment presented – repeal of Criminal Code, Sections 213 (defilement of girls under 12) and 216 (defilement of girls under 16 and of idiots) – whether offender should be charged under old law or new law – Constitution, Section 37 (protection of the law) – Criminal Code, Section 11 (effect of changes in law) – Interpretation Act, Section 63 (effect of repeal) – acceptance of indictment presented under new law, Section 229A – whether maximum penalty is determined by old law or new law – no disparity between penalty regimes due to age of victim – offender aged 39 at time of offence – child aged 10 years – lack of consent – offender acted alone – no weapons used or aggravated physical violence – physical injury – existing relationship of trust – offender stepfather of child – isolated incident – offender under influence of alcohol – 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 – not a youthful offender – 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 17 years.

Cases cited

Baiza Tadu Avona v The State [1986] PNGLR 148

Kape Sulu v The State (2003) N2456

Public Prosecutor v Don Hale (1998) SC564

The State v Dibol Petrus Kopal (2004) N2778

The State v Eddie Trosty (2004) N2681

The State v Jason Rihata (2005) CR No 171 of 2005, unreported

The State v Kemai Lumou (2004) N2684

The State v Kambi Sipris (No 2) (2003) N2453

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

The State v Peter Lare (2004) N2557

The State v Thomas Pipon [1988-89] PNGLR 179

L Rangan for the State

L Siminji 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. The girl child was the stepdaughter of the man

BACKGROUND

Incident

The incident giving rise to the charge took place at Hanahan village, Buka Island, Bougainville, in 2002.

Indictment

On 14 March 2005 he was brought before the National Court and faced the following indictment:

John Ritsi Kutetoa of Hanahan, Buka Island, Bougainville, Papua New Guinea, stands charged that he … on the 12th day of April 2002 at Hanahan … engaged in an act of sexual penetration with Mecklyn Naneibia Matalaula [the complainant], a child under the age of 16 years and at the time there was an existing relationship of trust between John Ritsi Kutetoa and [the complainant].

The indictment was presented under Section 229A of the Criminal Code (sexual penetration of a child).

PRELIMINARY ISSUES

Query

When the indictment was presented I queried whether it was properly drafted as the alleged offence occurred in April 2002. That predated the commencement of Section 229A by almost 12 months.

New law

Section 229A is a relatively new law. It was inserted in the Criminal Code by the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002. Before that its equivalent provisions were Section 213 (defilement of girls under 12) and Section 216 (defilement of girls under 16 and of idiots). Section 213(1) made it a crime to have unlawful carnal knowledge of a girl under the age of 12 years. The maximum penalty was imprisonment for life. Section 216(1) made it a misdemeanour for a person to have or attempt to have unlawful carnal knowledge of a girl under the age of 16 years. The maximum penalty was five years. Sections 213 and 216 were repealed by Act No 27 of 2002.

Act No 27 of 2002 was made by the National Parliament on 28 March 2002. It was certified by the Speaker on 25 June 2002. It commenced operation on 10 April 2003. (See Constitution, Section 110(2), the commencement clause of Act No 27 of 2002 and the notice of commencement in the National Gazette No G45 of 2003 at page 2.)

Issues

The State proposed to indict a person under a law that in some respects did not exist at the time he allegedly committed the offence. The law had been enacted by the Parliament. But it had not commenced operation. Is that proper? And if it is, what penalty would be applied to the person found guilty? The penalty under the new law or the penalty under the old law?

These issues are addressed in a number of different laws.

Law

Section 37(2) of the Constitution (protection of the law) states:

Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

Section 37(7) of the Constitution (protection of the law) states:

No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.

Section 11 of the Criminal Code (effect of changes in law) states:

(1) A person cannot be punished for doing or omitting to do an act unless—

(a) the act or omission constituted an offence under the law in force when it occurred; and

(b) doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.

(2) If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law.

Section 63 of the Interpretation Act (effect of repeal) states:

(1) The repeal of a provision does not—

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of the repealed provision, or anything duly done or suffered under the repealed provision; or

(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the repealed provision; or

(d) affect any penalty, forfeiture, or punishment incurred in respect of an offence committed against the repealed provision; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the repeal had not been made.

(2) The repeal of a statutory provision that validated or continued in force any act, matter or thing does not affect the validation or continuance.

Precedent

The effect of those laws on prosecutions brought under the provisions of the Criminal Code, which have been added or amended by Act No 27 of 2002, where the alleged offence pre-dated the commencement of that Act, has been considered in at least three National Court cases.

In Kape Sulu v The State (2003) N2456, Manuhu AJ heard an application to quash an indictment presented under Section 229A. The alleged offence occurred on 3 November 2002, five months before the start of the new law. His Honour dismissed the application. As the old Section 216 is no longer in existence the charge must proceed under the new law. However the penalty that would apply is restricted to what was available under the old law, five years imprisonment.

In The State v Dibol Petrus Kopal (2004) N2778 a man was charged with rape under Section 347 (definition of rape) of the Criminal Code. The alleged offence occurred on 26 January 2000, more than three years before the start of the new law. Section 347 was repealed and replaced by Act No 27 of 2002. The crime of rape was made gender-neutral. The maximum penalty was divided into two categories: 15 years for ‘non-aggravated’ rape and life imprisonment for rape committed in circumstances of aggravation. Complementary provisions defining consent or its absence (Section 347A) and circumstances of aggravation (Section 349A) were added. An issue arose about whether, in light of Section 63 of the Interpretation Act, the accused should be charged under the repealed Section 347 or the new Section 347. Lay J applied the principle developed by the Supreme Court in Baiza Tadu Avona v The State [1986] PNGLR 148, Kidu CJ, Amet J, Cory J, Los J, Wilson J. Looking at the substance, rather than the form, of the new law, although Act No 27 of 2002 speaks of...