The State v Titus Soumi (2004) N2809

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 March 2005
• Citation: (2005) N2809
• Docket Number: CR No 1071 of 2004
• Court: National Court
• Year: 2005
• Judgement Number: N2809

Full Title: CR No 1071 of 2004; The State v Titus Soumi (2004) N2809

National Court: Cannings J

Judgment Delivered: 22 March 2005

N2809

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1071 0F 2004

THE STATE

V

TITUS SOUMI

BUKA : CANNINGS J

17, 22 MARCH 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 30 years, child aged 14-15 years – offender married to complainant’s older sister – consent – offender acted alone – no weapons used or aggravated physical violence – no physical injury – whether existing relationship of trust, authority or dependency – two separate incidents – 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 – 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 –– sentence of two years – one year must be served – balance of one year may be suspended on application to the National Court.

Cases cited

Public Prosecutor v Don Hale (1998) SC564

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

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 two counts of engaging in an act of sexual penetration of a child under the age of 16 years, his sister-in-law.

BACKGROUND

Incident

The incident giving rise to the charge took place at Barikua village, Solos, Buka Island, Bougainville, on 28 December 2003.

Indictment

On 17 March 2005 he was brought before the National Court and faced the following indictment:

First count: Titus Soumi of Barikua village, Solos, Buka Island, Bougainville, Papua New Guinea, stands charged that he … on the 28th day of December 2003 at Barikua village … engaged in an act of sexual penetration with Mathilda Koupan [the complainant] a child under the age of 16 years and that at the time of the unlawful act of sexual penetration there was an existing relationship of trust between Titus Soumi and [the complainant].

Second count: Titus Soumi … stands charged that he on the 27th day of March 2004 at Barikua village engaged in an act of sexual penetration with [the complainant], a child under the age of 16 years, and that at the time of the unlawful act of sexual penetration there was an existing relationship of trust between Titus Soumi and [the complainant].

The indictment was presented under Section 229A of the Criminal Code. The term ‘complainant’ is used in this judgment to describe the child, as that is the term used in Section 1 of the Criminal Code to describe a person against whom an offence is alleged to have been committed.

NEW LAW

Section 229A is a relatively new law. So I had to be satisfied that the accused was charged under the correct law.

Section 229A 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.)

The alleged offences in the present case were committed on 28 December 2003 and 27 March 2004, well after the commencement of the new law. The accused has therefore properly been charged under the new law and will be punished, if found guilty, under the new law.

FACTS

Allegations

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

At about 9.00 am on 28 December 2003 the complainant and the accused were both staying at Barikua. She went to a river to wash some plates. The accused followed her to the river. He called her into the bush, away from the river, where they had sexual intercourse. The complainant was aged 15. The accused knew that she was under 16. There was an existing relationship of trust in that the accused was married to her elder sister. A similar thing happened on 27 March 2004. At about midday, he had sexual intercourse with the complainant at a spot not far away from her house. He knew she was still under 16.

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:

I say sorry to the court and to that lady. I know I have done wrong. But it wasn’t my doing, it was the lady’s doing. I ask the court to feel sorry for me. I am married with four children. Two are going to elementary school. The others are also at school. There is nobody else to look after them and pay for school fees. This is my first time in court. I ask the court to feel sorry for me and put me on a good behaviour bond.

CLARIFICATION OF FACTUAL ISSUES

During the course of the proceedings, three issues of fact arose that were not brought out clearly in the summary of facts, to which the offender pleaded guilty. These related to the issue of consent, the age of the offender and the age of the complainant.

Consent

It is significant that in his summary of the allegations the prosecutor did not mention anything about consent or lack of it. There was nothing wrong with not mentioning it, as lack of consent is not an element of the offences with which the offender was charged. However, it is an important consideration to take into account when determining the sentence. It was something that needed to be clarified, especially as, in his allocutus, the offender indicated that there was consent. Indeed he suggested that the two offences were committed at the instigation of the complainant.

Mr Rangan conceded that there was consent. I note that that is not consistent with the complainant’s police statement that is on file. On the other hand it is consistent with the statement made by the offender to the District Court at his committal hearing. I will act on the prosecutor’s concession. I deal with the case on the basis that there was consent. There is nothing, however, to support the offender’s claim that the offences were committed at the instigation of the complainant.

Age of offender

One of the documents on the District Court file states that the offender was aged 20 when the offences were committed. I find this hard to believe, as he says he is married with four children and the oldest one is aged 10 years. I estimate him to be aged 30.

Age of complainant

The prosecutor suggested that the complainant was aged 15 when the offences were committed. But there is material on file to show that she was born on 18 June 1989. I find she was aged 14 years at the relevant time.

SUBMISSIONS BY DEFENCE COUNSEL

Mr Siminji 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. The offender was engaged in consensual sex and there was no violence involved. It is true that the complainant was under age, but she was not substantially under age.

SUBMISSIONS BY THE STATE

Mr Rangan submitted that though intercourse took place by consent it was still a serious matter in view of the age of the complainant and the fact that she was his wife’s sister.

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,...