The State v Bonny Gongi Paulus

• Jurisdiction: Papua New Guinea
• Judge: Numapo AJ
• Judgment Date: 20 June 2018
• Citation: (2018) N7339
• Court: National Court
• Year: 2018
• Judgement Number: N7339

Full : CR No 1388 of 2017; The State v Bonny Gongi Paulus (2018) N7339

National Court: Numapo AJ

Judgment Delivered: 20 June 2018

N7339

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1388 OF 2017

THE STATE

V

BONNY GONGI PAULUS

Lae: Numapo AJ

2018: 18, 20 & 27 April; 25 May & 20 June

CRIMINAL LAW – Particular offence – Sexual Penetration of a Child under 12 years – Guilty Plea – Aggravating circumstances and Mitigating factors – Breach of Trust and Violation of Relationship - Big age difference makes it an Aggravated Sexual Penetration – Sentencing Guidelines - Sentencing Discretion, ss. 229A (2) & 19 of Criminal Code – Prevalence of the Offence – Deterrence – Custodial Sentence.

Held:

(i) Intention of the legislature is made clear for the offence of sexual penetration of a child under 12 years when it prescribed maximum penalty, subject to s.19, imprisonment for life under s.229A (2) of Criminal Code.

(ii) The offence of sexual penetration involving under-age children is not only unlawful but is also morally wrong.

(iii) Offence involves a breach of trust and violation of relationship between the offender and the victim.

(iv) The big age difference between the offender and the victim makes it an aggravated sexual penetration.

(v) Sexual penetration of under age children and other sexual offences of similar nature are becoming too prevalent in the country in recent times.

(vi) A sentence with a deterrent effect is needed to send a clear message to others.

(vii) Prisoner sentenced to Ten (10) years imprisonment.

Cases cited:

Goli Golu v The State [1979] PNGLR 653

State v David Awi (2016) N6563

State v John Ritsi Kutetoa (2005) N2814

The State v Raumo [2007] N4983

State v Sabiu [2005] N3654

State v Tiama Esrom (2006) N3054

Sabiu v The State (2007) SC866

The State v Engi Hendrix Cr. No 485 of 2012

The State v Jessie Chadrol (2011) N4648

Counsel:

J. Done, for the State

S. Katurowe, for the Defence

SENTENCE

20th June, 2018

1. NUMAPO AJ: This is a decision on sentence. The prisoner pleaded guilty on the 18th of April 2018 to one count of sexual penetration of a child under the age of 12 years. Contrary to section 229A (1) (2) of the Criminal Code Act Ch. 262.

A. BRIEF FACTS

2. The facts giving rise to the charge against the prisoner is that on the 21st of June 2016 between 7:30pm and 8:00pm the victim was at home. The prisoner called the victim over to him and gave her K2.00 to go and buy his tobacco roll. The prisoner was under the influence of liquor at that time. The victim bought the tobacco roll and returned back and gave it to the prisoner. He then gave her the change from the K2.00 and took her into the kitchen of her family’s house and told her to suck his penis but the victim refused. He then sat her on his laps and pulled her trousers down and inserted his fingers into her vagina. Later he pulled out his fingers and inserted his penis into the victim’s vagina. The victim’s mother called out to the victim but the prisoner covered her mouth preventing her from answering. The victim then came out of the kitchen and met her mother in the doorway. The mother was also surprised to see the prisoner coming out of the kitchen. The victim told her mother what the prisoner did to her.

B. MEDICAL REPORT

3. The medical examination carried out on the victim revealed the following:

(a) Vulva – Dirt particle noted at 3 o’clock position of the outer vulva; abrasion was also noted at 3 o’clock position of the outer vulva; redness of the entire inner vulva.

(b) Hymen – Laceration noted at 6 o’clock position of the hymen.

(c) Vaginal Opening – Widening of the vaginal opening.

4. The medical report is consistent with what the victim told her mother.

C. CHARGE

5. Section 229A (1) (2) of the Criminal Code reads:

229A. SEXUAL PENETRATION OF A CHILD

(1) A person who engages in an act of sexual penetration with a child under the age of 16 is guilty of a crime.

Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If a 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, and is liable, subject to Section 19, to imprisonment for life.

D. CATEGORIES OF PENALTIES

6. There are three categories of penalties prescribed under s 229A for the offence of sexual penetration. The first category is under Subsection (1) which provides the maximum penalty of 25 years if the victim is under 16 years of age. The second category under Subsection (2) applies to aggravated circumstances where the victim is under the age of 12 years. The maximum penalty under the provision is life imprisonment. The final category is under Subsection (3) which provides for life imprisonment where there is a relationship of trust, dependency and authority regardless of whether the victim is under the age of 16 or 12 years.

7. The present case falls under the second category in that the victim is under the age of 12 years, being 8 years old at the time of the offence. The maximum penalty, subject to s. 19 of the Criminal Code, is life imprisonment.

The Supreme Court in Goli Golu v The State [1979] PNGLR 653 held that maximum penalty is reserved for worst type offence. This was a ruling on a murder case which eventually became trite law and apply to other offences as well.

8. For sexual penetration the following factors must be present for it to be considered as a worst case:

(i) Where the offender illustrates a sadistic tendency in sexually penetrating several children at once.

(ii) Where the victim is kidnapped and sexually penetrated for a number of days.

(iii) Where the single victim is sexually penetrated by more than one offender.

(iv) Serious physical injuries suffered by the victim that is considered permanent and may result in a long term disability.

(v) The immense psychological trauma suffered by the victim that has the potential to permanently affect her normal life.

(vi) Serious breach of trust and violation of relationship and dependency.

(vii) Where an offender is a repeat offender with prior convictions of serious offences such as murder, rape or armed robbery.

9. Both the State and Defence submitted that the present case does not fall under the category of worst case and asked the court to consider a penalty less than the prescribed maximum penalty under s. 229A (2) of the Criminal Code.

E. AGGRAVATING AND MITIGATING FACTORS AND CIRCUMSTANCES

10. The aggravating and mitigating factors and circumstances of the present case are as follows:

1. Aggravating factors and circumstances:

(i) Big age difference between the prisoner and the victim - The prisoner was 25 years old and the victim was 8 years old at the time the offence was committed, an age difference of 17 years.

(ii) Breach of trust and violation of relationship – The prisoner was looked after by the victim’s family after his parents passed away and treated him as one of their own children over a period of 10 years. He repaid their generosity and kind gesture by committing a serious crime against their daughter.

(iii) The offence of sexual penetration of a child is becoming too prevalent as reflected in the number of case laws cited by Counsels.

2. Mitigating factors are:

(i) Prisoner is a first time offender.

(ii) He pleaded guilty early.

(iii) He was very remorseful and apologized for what he did.

(iv) He co-operated well with the Police and admitted to committing the offence at the earliest opportunity in his Record of Interview.

(v) No weapon was used.

All in all, I find that the aggravating factors and circumstances outweighs the mitigating factors.

F. APPROPRIATE SENTENCE

11. In deciding an appropriate sentence the court must address its mind to four (4) overarching principles on sentencing: Firstly, ‘’purpose of sentence’’ - to achieve an outcome that reflect the intent of the law for such crimes; secondly, the “principles of sentencing”- (i.e. deterrence (general & specific), retribution, rehabilitation and restitution)- the established principles that guides the court to impose a sentence that fits the crime and also reflect the views of society towards such crimes; thirdly, “sentencing options”- range of options available to court including non-custodial sentences and finally, “uniformity in sentencing” - to ensure parity and consistency in the sentencing process based on case precedence and current sentencing trend for like cases.

12. On the first principle, the intention of the legislature is made clear for the offence of sexual penetration of a child under the age of 12 when it prescribed maximum penalty, subject to s 19, imprisonment for life under s 229A (2) of the Criminal Code.

Secondly, with respect to the principles...