The State v John Ritsi Kutetoa (2005) N2814

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

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

National Court: Cannings J

Judgment Delivered: 22 March 2005

1 Criminal law—indictable offence—Criminal Code, Division IV.2A, Sexual Offences Against Children—s229A, 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, s213 (defilement of girls under 12) and s216 (defilement of girls under 16 and of idiots)—whether offender should be charged under old law or new law—Constitution, s37 (protection of the law)—Criminal Code, s11 (effect of changes in law)—Interpretation Act (Ch2), s63 (effect of repeal)—acceptance of indictment presented under new law, s229A—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.

2 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 referred to

Sentence

___________________________

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 s229A 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 s229A by almost 12 months.

New law

s229A is a relatively new law. It was inserted in the Criminal Code by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No 27 of 2002). Before that its equivalent provisions were s213 (defilement of girls under 12) and s216 (defilement of girls under 16 and of idiots). s213(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. s216(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. S213 and s216 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, s110(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

s37(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.

s37(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.

s11 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.

s63 of the Interpretation Act (Ch2) (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 s229A. 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 s216 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 s347 (definition of rape) of the Criminal Code. The alleged offence...