The State v Olwin Noel (2012) N4664

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 10 May 2012
• Citation: (2012) N4664
• Docket Number: CR NO 381 of 2011
• Court: National Court
• Year: 2012
• Judgement Number: N4664

Full Title: CR NO 381 of 2011; The State v Olwin Noel (2012) N4664

National Court: Cannings J

Judgment Delivered: 10 May 2012

N4664

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 381 0F 2011

THE STATE

V

OLWIN NOEL

Madang: Cannings J

2012: 15 March, 12 April, 10 May

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 21-year-old man; victim, a 9-year-old boy – Criminal Code, Section 229A(1),(2), (3) – sentence of 9 years.

The offender, a young man, pleaded guilty to sexually penetrating a nine-year-old boy, a close relative, in a rural area close to their village. The victim’s parents wanted to see the offender punished but were prepared to accept compensation and engage in customary reconciliation with the offender. This is the judgment on sentence.

Held:

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

(2) 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; expressed remorse; willingness to compensate and reconcile.

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

(4) A sentence of 9 years was imposed. The pre-sentence period in custody was deducted and, because of the willingness of the offender’s family and victim’s family, who are related, to seriously attempt a customary reconciliation of the matter, six years of the sentence was suspended subject to payment of K4,000.00 compensation and a formal reconciliation, which is to occur within six months after release from custody.

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

SENTENCE

This is a judgment on sentence for an offence under Criminal Code, Section 229A(1): engaging in an act of sexual penetration with a child under the age of 16 years, in circumstances of aggravation.

Counsel

J Morog & S Collins, for the State

W Dogura & G Peu, for the offender

10 May, 2012

1. CANNINGS J: This is the decision on sentence for a 22-year-old man, Olwin Noel, who has pleaded guilty to engaging in an act of sexual penetration with a child under the age of 16 years, a 9-year-old boy, “T”, his nephew. The offence was committed near their village, Aouns, in the Aiome area of Middle Ramu District, Madang Province, on 6 January 2011. The offender met the victim, who was with some other young boys, in the bush near a river. He told the other boys to go in a different direction and took the victim along another track. When they were alone, he grabbed the victim, forcefully removed his clothes, then penetrated his anus with his penis. He told the victim not to tell anybody what happened but later that day the victim experienced anal pain and had difficulty sleeping and the next day he reported the incident to his mother.

2. The offender 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, viz that, 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.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I say sorry to the victim and his family and to the court. I ask for the mercy of the court.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of reasonable 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 boy was examined four days later at Aiome Health Centre) shows that he suffered no permanent injury. No sexually transmitted disease was passed on to the victim.

PRE-SENTENCE REPORT

6. Olwin Noel comes from Aouns village and was raised in the village. He lives with his parents and he is the eldest of four children. He was educated to grade 10 at Aiome High School. He has been living in the village since completing his education and earns an income from the sale of cash crops such as cocoa and betel nut. He is a member of the Anglican Church. His health is sound. He is strongly supported by his parents despite what he has done. They acknowledge that he has committed a very serious offence against a close relative but they want the chance to, in some way, solve the problem by customary reconciliation with the victim and his family. They say they will pay compensation of K4,000.00 if given time. The victim’s family want to see the offender punished for the terrible thing he did. The victim’s mother is very concerned about the psychological impact of the ordeal on her son. Nevertheless they are willing to attempt reconciliation subject to payment of K5,000.00 cash and at least one pig. The report concludes that the offender is an intelligent young man, he is educated and literate and understands the gravity of his crime. He is an introvert. He keeps to himself much of the time. He is not known to have done anything of this sort before. He has led a peaceful life until commission of the offence. He is considered suitable for probation. A suspended sentence subject to strict conditions including payment of compensation of K5,000.00 is recommended.

SUBMISSIONS BY DEFENCE COUNSEL

7. Ms Peu highlighted a number of mitigating factors: the victim, although of tender age, did not sustain serious physical injuries; the offender has no prior convictions; he pleaded guilty; it was an isolated incident; he co-operated with police. Eight to 12 years imprisonment would be an appropriate sentence, some of which should be suspended.

SUBMISSIONS BY THE STATE

8. Mr Collins submitted that a sentence of at least 12 years was required. There has to date been no effective reconciliation. He referred to the similar case of The State v Charles Rome CR No 502/2007, 13.07.07 where a male offender aged in his 20s pleaded guilty to sexually penetrating a boy aged 10 and the sentence of 12 years was imposed.

DECISION MAKING PROCESS

9. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what should the head sentence be?

· step 5: should the pre-sentence period in custody be deducted?

· step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. 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. The maximum penalty is therefore life imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. As the maximum penalty is life imprisonment I consider that a useful starting point is 20 years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. I will summarise in the following table some sentences I have imposed for offences of this nature where the victim has been less than 12 years old.

NATIONAL COURT SENTENCES ON SECTION 229A –

CHILD UNDER THE AGE OF 12 YEARS

No	Case	Details	Sentence
1	The State v John Ritsi Kutetoa (2005) N2814, Buka	Guilty plea – 39-year-old offender – victim, a girl, aged 10, his stepdaughter – penile penetration – physical injury caused to child.	17 years
2	The State v Kolton Duen Songones CR No 778/2007, 22.11.07, Kimbe	Guilty plea – offender aged 29 – victim, a girl, aged 8 – digital penetration – no aggravated violence – relationship of trust (family friend).	8 years
3	The State v Sawan Raumo CR No 876/2007, 18.09.07, Buka	Guilty plea – offender aged 25 – victim, a girl, aged 6 – digital penetration – no aggravated...