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

• Jurisdiction: Papua New Guinea
• Judge: Brunton AJ
• Judgment Date: 26 May 1989
• Citation: [1988-89] PNGLR 179
• Court: National Court
• Year: 1989
• Judgement Number: N737

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

National Court: Brunton AJ

Judgment Delivered: 26 May 1989

N737

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

THOMAS PIPON

Goroka

Brunton AJ

24 May 1989

26 May 1989

CRIMINAL LAW — Sentence — Defilement of girl under 12 — Sentencing principles — Appropriate tariffs — Sentencing analogous to rape — Criminal Code (Ch No 262), s 213 (1).

CRIMINAL LAW — Sentence — Defilement of girl under 12 — Accused first offender aged 18 years — Victim aged 18 months — Infected with gonorrhoea — Sentence of seven years — Criminal Code (Ch No 262), s 213 (1).

The following guidelines may be taken as appropriate to sentencing for the offence of defilement of girls under 12 years contrary to s 213 of the Criminal Code (Ch No 262) for which the maximum prescribed penalty is life imprisonment:

(1) sentencing policy should not only protect the public and young girls but should also address the offence in its social context;

(2) because the offence involves unlawful sexual intercourse, a maximum term of life imprisonment and lack of consent is a vital element, the principles of sentencing for the offence of rape should be applied.

John Aubuku v The State [1987] PNGLR 267, considered.

(3)

(a) on a plea of not guilty, where the accused is mature and there are no aggravating or mitigating circumstances, a sentence of five years should be taken as the starting point;

(b) where the age gap between the victim and the accused is narrow, a sentence appropriate to a juvenile offender may be appropriate;

(c) the actual sentence imposed may vary depending on the facts, such as, the frequency of the acts, the duration of the relationship and whether or not any permanent physical or psychological damage has been done to the victim or the family;

(d) the sentence may be increased for aggravating circumstances such as: offences committed over a long period of time; offences where the accused is pathologically driven to sex with young children; resulting pregnancy; the infliction of sexually transmitted diseases; and offences involving very young children; any of the above in combination with the status of the accused as a person in loco parentis to a child, or to whom the child gives its complete trust; acts of group sex involving children and a number of adults; and organised child prostitution (including conspirators, aiders, abettors and counsellors).

Held

On a plea of guilty to a charge of unlawful carnal knowledge of a girl under 12 years under s 213 (1) of the Criminal Code (Ch No 262), where the accused was a first offender aged 18 years and the victim 18 months and where the victim was infected with gonorrhoea, a sentence of seven years in hard labour should be imposed.

Cases Cited

Acting Public Prosecutor v Makin and Kasen (Supreme Court, SC 205, 7 August 1981, unreported).

John Aubuku v The State [1987] PNGLR 267.

R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985.

R v Crowther (judgment No 5187/A/73, 14 March 1975, unreported).

The Secretary for Law v Kwauga [1974] PNGLR 135.

Sentence

An accused pleaded guilty to a charge of defilement of a girl under 12 years contrary to s 213 (1) of the Criminal Code (Ch No 262) and the following judgment was delivered on sentence.

Counsel

D E Ashton-Lewis, for the State.

J M Teine, for the accused.

Cur adv vult

26 May 1989

BRUNTON AJ: An indictment was presented to me against Thomas Pipon for the defilement of a girl under the age of 12 years contrary to s 213 (1) of the Criminal Code (Ch No 262).

The accused was first identified as being the person named in the indictment. He was arraigned in terms: that on 14 November 1985, at Goroka, he was looking after the victim, and had sexual intercourse with her; that the victim was under 12 years of age. He was asked whether or not what the State alleged was true or not true, had he broken the law? He replied, "Yes, it's true". Mr Teine, who appeared for the accused, said he had no applications to make. Mr Ashton-Lewis, for the State, presented the deposition and gave a somewhat lengthy description of the facts of the case. After reading the depositions, and noting that there were no admissions made on them by the accused, I provisionally entered a plea of guilty in order to hear the allocutus. On the allocutus the accused made a short statement in which he apologised for what he had done and showed contrition. Mr Teine in his address emphasised the youth of the accused, his previous good character, the absence of any prior convictions, that the accused had peaded guilty to an offence in respect of which the State did not have a strong case. Mr Teine submitted that without the admissions of the accused, the State had to rely on circumstantial evidence. Mr Teine, on behalf of his client, denied any breach of the victim's hymen, and said that the accused admitted only rubbing his penis against the labia majora. I allowed the State to reply to these submissions as Mr Ashton-Lewis asserted that the State had a strong case. Although stronger evidence was not available at the committal proceeding, I adjourned the case to consider both conviction and sentence.

THE FACTS

The accused was 18 years old at the time of the offence, which occurred in November 1985. He is from the Western Highlands Province and at that time was visiting the family of some relatives in Goroka as a house-guest and child-minder, while the victim's father was overseas.

On 14 November 1985, the mother of the victim had left the victim, her 18-month-old daughter, in the care of the accused and another youth while she went out. She returned about 5 pm and found her daughter unattended, with the two youths asleep. She took the girl and was about to wash her when she noticed what she thought to be sperm between the child's legs. The mother then asked the two youths which of them had interfered with her daughter. Both youths denied any impropriety. The child was then taken to the Goroka Base Hospital for examination, and was found to be infected with gonorrhoea. It transpired that the accused had been treated at the Sexually Transmitted Disease Clinic of that Hospital on 13 November 1985.

THE ACCUSED

At the time of the offence the accused was about 18 years old. He is a first offender and has pleaded guilty. On 24 February 1986, he was committed for trial by the Goroka District Court, after which he returned to his village near Togolia in the Western Highlands Province. He has remained at his village since that time. Mr Teine tells me that he has become a born-again Christian and has reformed. Although a bench warrant was issued in May 1986 the police failed to execute it. Whether this was through incompetence or corruption is not clear, but the State Prosecutor told me that he had made a number of attempts to get the police to arrest the accused. At the beginning of this circuit, after being told this, I summoned the Provincial Police Commander into the National Court, and ordered him to send his men to the Western Highlands Province to effect an arrest. This was done. The accused is now about 21 or 22 years old.

THE SENTENCE

The maximum penalty for an offence under s 213 (1) of the Criminal Code is life imprisonment. I noted that the penalty is the same under s 5 of the Sexual Offences Act 1956 (UK).

D A Thomas, in his book Principles of Sentencing, 2nd ed (1979) at 124-125, describes the sentencing patterns of the courts in the United Kingdom:

"Although a few cases can be found where the offender is under 21 [three cases in which the Court upheld, substituted or would have preferred borstal training], the typical appellant in cases of unlawful sexual intercourse with girls under 13 is an older man, often in his fifties or sixties. In most cases the Court upholds a tariff sentence (although presumably psychiatric measures would be approved in appropriate cases), and the normal sentencing bracket seems to be between three and five years, although longer sentences are occasionally upheld. [ Fn 2 at 124, Crowther, man 45, intercourse with 9-year-old daughter of couple who had taken him into their home and treated him as a member of family; ten years 'too severe' — reduced to seven.] In Prescott a man of 62 admitted intercourse and indecency with an 11-year-old girl who had come to his house to play with his granddaughter. The Court considered that in view of his character and the probability that no further offences would be committed, the sentence coud be reduced from five years to three. In Major a man of 62 admitted a number of offences of unlawful sexual intercourse and indecent assault committed over a period of years with a girl between the ages of 6 and 10. The Court stated that a sentence of imprisonment was necessary to ensure 'the protection of young members of the public and ... demonstrate the public's revulsion at the type of crime committed', but that the total of six years' imprisonment was 'longer than was necessary for a person of the age of...