The State v Charles Rome (2007) N5048

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 13 July 2007
• Citation: (2007) N5048
• Docket Number: CR NO 502 0F 2007
• Court: National Court
• Year: 2007
• Judgement Number: N5048

Full Title: CR NO 502 0F 2007; The State v Charles Rome (2007) N5048

National Court: Cannings J

Judgment Delivered: 13 July 2007

N5048

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 502 0F 2007

THE STATE

V

CHARLES ROME

Kimbe: Cannings J

2007: 16 May, 3, 13 July

CRIMINAL LAW – sentence – two counts of sexual touching of a child under the age of 16 years plus one count of sexual penetration of a child under the age of 16 years – circumstances of aggravation – child under the age of 12 years – existing relationship of trust – Criminal Code, Sections 229B, 229A - guilty plea.

The offender pleaded guilty to two counts of sexual touching and one count of sexual penetration of a 10-year-old boy. There was an existing relationship of trust in that the offender was a friend of the boy’s parents and was living in their house.

Held:

(1) When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle. The following notional sentences were passed:

(a) count 1 (sexual touching): 3 years;

(b) count 2 (sexual touching): 3 years;

(c) count 3 (sexual penetration): 12 years;

resulting in a total potential sentence of 18 years imprisonment.

(2) The offences were committed as part of a single incident and there was one victim, so the sentences should be served concurrently. The totality principle does not require any reduction of the sentence. The court imposed a total head sentence of 12 years. The pre-sentence period in custody was deducted. None of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Jack Mari v The State SCR No 19/2006. 02.03.07

Joe Nawa v The State SCR No 16/2006. 02.03.07

Saperus Yalibakut v The State (2006) SC890

The State v Biason Benson Samson (2005) N2799

The State v George Taunde (2005) N2807

The State v Gerard Apeau CR No 1042/2006, 27.03.07

The State v Ian Unawing CR No 392/2005, 19.08.05

The State v Jeffery Toapas CR No 1924/2005, 25.08.06

The State v Joe Putubu CR No 1042/2006, 23.08.06

The State v John Ritsi Kutetoa (2005) N2814

The State v Johnson Roman CR No 1924/2005, 23.03.07

The State v Paul Nelson (2005) N2844

The State v Pennias Mokei (No 2) (2004) N2635

The State v Titus Soumi (2005) N2809

The State v Willie Dominic (2005) N2938

PLEA

An accused pleaded guilty to sexual touching of a child (two counts) and sexual penetration of a child (one count).

Counsel

F Popeu, for the State

O Oiveka, for the accused

13th July, 2007

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to two counts of sexual touching of a child under the age of 16 years and one count of engaging in an act of sexual penetration with that child, arising from an incident on the afternoon of Sunday 25 February 2007 at the staff quarters of Liamo Reef Resort Hotel, Kimbe, where the offender was employed. The victim was a 10-year old boy and the offender was living with the boy’s parents. The boy’s father was also a hotel employee. The offender was under the influence of liquor. He went to the house, where he found the boy alone, removed the boy’s shorts, fondled the boy’s penis with his fingers then removed his own trousers and forced the boy to hold his penis. He then put the boy onto a bed and penetrated the boy’s anus with his penis. The boy struggled, managed to free himself, ran out of the house and reported the incident to a neighbour. There was an existing relationship of trust because the offender was living in the same house as the victim.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender said:

I am a first time offender. I deeply regret committing this crime. I feel great shame and disgust at what I did. I promise not to repeat what I did. I ask for mercy and probation. I want to continue working. I have no immediate family members around Kimbe. If I am sent to prison, I request a transfer to Kerevat. I have already been sodomised by two inmates while in custody and this has caused me humiliation and I fear for my own safety. I was threatened after reporting that incident so there is no guarantee of my safety if I stay at Lakiemata.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty, he is entitled to benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). The depositions show that the offender was arrested and detained in custody soon after the incident. He co-operated with the police and made full admissions in his police interview, which was conducted three days after the incident. He told the police he was sorry and ashamed of what he did to the boy. I accept the statements in the allocutus as a genuine expression of remorse and shame. The prosecutor did not take issue with what the offender said about being sexually assaulted and threatened while in custody, so I accept those claims as true.

PRE-SENTENCE REPORT

5. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

CHARLES ROME: 31-year-old male.

Residence: was living at Liamo staff quarters at time of incident.

Family background: mixed parentage: New Ireland/East New Britain – comes from broken family – youngest of two children from his mother’s first marriage – his stepfather has since left his mother – he was brought up by his aunty, while at school, at Nabaul village, Duke of York Islands.

Marital status: was married with one child – now separated.

Education: grade 10, Rabaul High School (1992); Certificate in Business Studies, Rabaul Business College (1994).

Employment: has had a number of jobs over the years, eg Travelodge Hotel, Department of Lands, PNGBC, Mobil Lihir – came to Kimbe in 2006 to search for employment with ANZ Bank – got job at Liamo in January 2007.

Health: OK.

Financial status: now unemployed, without income.

Plans: pursue a career in banking.

Victim’s attitude: clearly remembers the incident, a painful experience.

Victim’s parents’ attitude: still angry with the offender, do not want to see him around and want him severely punished.

Offender’s family’s attitude: the offender’s mother, who works in Kokopo, was contacted but could not talk as she was at work – further attempts to contact her were unsuccessful.

Attitude of community: he had not been in Kimbe long before the incident, so nothing is known about him.

Assessment: could be a danger to others.

Recommendation: not recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Oiveka asked me to place a lot of weight on the guilty plea and the expression of genuine remorse and to note that the offender comes from a dysfunctional family. The three sentences should be served concurrently and the total sentence should be in the range of five to six years, he submitted.

SUBMISSIONS BY THE STATE

7. Mr Popeu conceded that the sentences should be served concurrently but that the total sentence should be in the range of 14 to 15 years. The offences were very serious and in the circumstances were tantamount to rape.

DECISION MAKING PROCESS

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

· step 1: what is the maximum penalty for each offence?

· step 2: what is a proper starting point?

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

· step 4: what is the head sentence for each offence?

· step 5: should the sentences be served concurrently or cumulatively?

· step 6: what is the effect of the totality principle?

· step 7: should the pre-sentence period in custody be deducted?

· step 8: should all or part of the sentence be suspended?

· step 9: what should the place of detention be?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. For counts 1 and 2 – sexual touching of a child under the age of 16 years, in two circumstances of aggravation (the child was under the age of 12 years and there was an existing relationship of trust: Criminal Code, Sections 229B(1), (4) and (5)) – the maximum penalty is 12 years imprisonment for each offence. For count 3 – engaging in an act of sexual penetration with a child under the age of 16 years, in the same two circumstances of aggravation (the child was under the age of 12 years and there was an existing relationship of trust: Criminal Code, Sections 229A(1), (2) and (3)) – the maximum is life imprisonment. Therefore the maximum is life imprisonment. I have discretion, of course, to impose less than the maximum term and suspend part or all of the sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS THE STARTING POINT FOR EACH OFFENCE?

10. The Supreme Court has yet to give sentencing guidelines for these sorts of offences but based on sentences...