The State v Henry Panut (2019) N7787

• Jurisdiction: Papua New Guinea
• Judge: Susame, AJ
• Judgment Date: 04 April 2019
• Citation: (2019) N7787
• Docket Number: CR. NO. 135 OF 2017
• Court: National Court
• Year: 2019
• Judgement Number: N7787

Full Title: CR. NO. 135 OF 2017; The State v Henry Panut (2019) N7787

National Court: Susame, AJ

Judgment Delivered: 4 April 2019

N7787

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 135 OF 2017

THE STATE

V

HENRY PANUT

Kokopo: Susame, AJ

2019: 4th April

CRIMINAL LAW – Sentence After Trial - Offence – Sexual Penetration Of A Girl Under 16 Years Of Age With Circumstances Of Aggravation – S. 229a (1)(3) Of Criminal Code (Sexual Offences And Crimes Against Children) Act 2002

CRIMINAL LAW – Aggravating Factors Far Outwieghed Mitigating Factors – Prisoner 31 Years Of Age – Victim 14 Years Of Age – 17 Years Age Difference – Prisoner An Uncle To The Victim – Breach Of Relationship Of Trust, Authority Or Dependency – No Reconciliation –Nothing Tangible Done To Compensate Victim – Abuse Of Alcohol – Mitigating Factors- First Time Offender - No Pregnancy – No Sti Contracted – No Weapons Used - Lone Perpertrator – Isolated Incident.

CRIMINAL LAW – Sentencing Range – 15 -20 Years– Effective Sentence 18 Years Imprisonment – No Special Or Extenuating Circumstances To Justify Partial Suspension – No Order For Compensation – Order Made For Prisoner To Attend All Reformation/ Rehabilitation And Church Ministry Programs In Prisoner While Serving His Term.

Cases Cited:

Goli Golu v The State [1988-89] PNGLR 653

Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510

Veen v The Queen (1979) 53A.L.J.R 305

R v Hodgson (Unreported Judgment) SC 137 25 October 1978

Stanley Sabui v The State [2007] PGSC 24; SC866

The State v Lemek Jubin (2018) N7523,

The State v Andrew Pora [2019] PGNC 14; N7672

Counsel:

Miss. J. Batil for the State

Ms. Pulapula, for the Prisoner

DECISION ON SENTENCE

04th April, 2019

1. SUSAME AJ: Prisoner was convicted after trial on 01 March 2019. Decision on sentence was deferred which is being delivered.

Facts

2. Facts are found in the judgement on verdict delivered after trial. Basic facts found in judgment will be relied on for sentencing of the prisoner.

3. The prisoner is a cousin to complainant’s biological father. He would be regarded as an uncle (blood relative) to the complainant. Therefore, there exists an uncle niece relationship between the two. The prisoner was 31 years of age when he committed the offence. His niece was then 14.

4. The prisoner had been drinking with his friends at his house the previous night till morning of 6 April 2015. At about 8:00am he decided to leave his friends to go to the nearby shop in the community to buy himself a coke and cigarette. He walked down the road that runs close to Brigit’s (complainant’s aunt) house.

5. As he approached the house he saw his niece and her girlfriend playing a card game outside. The prisoner approached them and got hold of his niece from behind. He asked the girls to go to the store but both refused. With aggression the prisoner pulled his niece into the house and locked the door from inside. Therein, he forced his niece onto the ground. Then he proceeded to remove her clothes and his own clothes. The prisoner slept onto of her and insert his penis into her vagina and had sex with her. After the first round he sexually penetrated her second time. His niece pleaded with him to let go of her but to no avail. Fortunately, her other Uncle Francis Gaius who had been alerted came to her rescue shortly after. He kicked opened the door and took the girl out of the house to safety. The girl was medically examined same day. Notable injuries found were that she had a bruised hymen with blood stains and whitish vaginal discharge.

Prescribed Penalty

6. The mandatory prescribed penalty for the offence involving sexual relations between family members or close blood relatives in breach of relationship of trust, authority or dependency is subject to s 19, imprisonment for life. [s 229A (3)]

7. With regard to maximum penalty it is the general principle of sentencing it should be reserved for the most serious instances of an offence, the worst possible cases normally encountered in practices. (Goli Golu v The State [1988-89}PNGLR 653). That is to uphold the fundamental principle that sentence must be proportionate to the crime committed or sentence must fit the crime. The courts have a wider discretion to impose a penalty lower than the maximum by invoking s 19 sentencing discretion. (Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510).

8. What factors should the court look for in a case to justify the maximum penalty?

9. Mason J in Veen v The Queen (1979) 53 A.L.J.R 305 at p.309 stated:

“The court imposes a sentence of life imprisonment on taking into account of the Offender’s record, his propensity to commit a violent crime, the need to protect the community and the very serious offence of which he stands convicted…”

10. To justify a life imprisonment sentence, the Court of Criminal Appeal (Lord Denning M.R Widgery and MacKenna JJ) in R v Hodgson, Unreported Judgment S, C, 137 25 October 1978) laid down the following conditions:

“1. Where the offence or offences are in themselves grave enough to require a very long sentence;

2. Where it appears from the nature of the offence or from the defendant’s character that he is a person of unstable character likely to commit such offences in the future; and

3. Where if the offences are committed the consequences to others may be specifically injurious, as in the case of sexual offences or crimes of violence.”

11. The above conditions were endorsed by the Supreme Court in Goli Golu v The State (supra). The conditions are lacking in this particular case so maximum penalty is not being considered.

Characteristics of the Offender

12. Prior to counsels addressing the court on sentence, the prisoner was given the opportunity to be heard first. He said he respected the court and the people. Court has found him guilty and hand down its decision. He accepts that. He said in God’s eye’s he is innocent. For that reason, he refused to sign the record of interview. He respects the mother law (Constitution) of the country. He is of mix parentage of Tolai and Morobe parents. He is the first born in the family. His parents are old. He is married and has 2 children. He lives with his parents and support them. He has 5 brothers and 3 sisters. That was all he said.

13. The means assessment and pre-sentence reports provided further information about the prisoner and views expressed by the prisoner’s father and the victim’s father. The author of the reports provided his brief assessment of the prisoner. He was of the opinion the offender was a potential risk to others in the community and that release of the offender on probation was not recommended.

14. My remarks on the pre-sentence report. The report is brief and shallow. It does not capture the victim’s view and other respectable members of the community who may be quite familiar with how the prisoner conducts himself in the community. Is he known for anti-social behaviour in the community? Has he been in trouble with the law before but never been arrested and brought to court? Only when such information is provided of the prisoner author will be in a better position to justify his assessment of the prisoner. That said though, the report is unfavourable to the prisoner for probation to be considered as an alternate.

Sentencing Guidelines

15. Guidelines in sentencing of offenders in all sexual offence cases were laid down by the Supreme Court in Stanley Sabui v The State [2007] PGSC 24; SC866. These guidelines are frequently used by the courts. They are:

1. Is there only a small age difference between the offender and the

victim?

2. Is the victim not far under the age of 16 years?

3. Was there consent?

4. Was there only one offender?

5. Did the offender not use a threatening weapon and not use aggravated physical violence?

6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?

7. Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?

8. Did the offender give himself up after the incident?

10. Did the offender cooperate with the police in their investigations?

11. Has the offender done anything tangible towards repairing his wrong, e.g. offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did?

12. Has the offender not caused further trouble to the victim or the victim’s family since the incident?

13. Has the offender pleaded guilty?

14. Has the offender genuinely expressed remorse? Ans. Yes, but no reconciliation.

15. Is this his first offence?

16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?

17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

Factors in Mitigation and Aggravation

16. First the characteristics in prisoner’s favour. Prisoner does...