The State v Jonathan Sepo (2013) N5079

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J
• Judgment Date: 20 February 2013
• Citation: (2013) N5079
• Docket Number: CR. NO.196 OF 2012
• Court: National Court
• Year: 2013
• Judgement Number: N5079

Full Title: CR. NO.196 OF 2012; The State v Jonathan Sepo (2013) N5079

National Court: Lenalia, J

Judgment Delivered: 20 February 2013

N5079

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO.196 OF 2012

THE STATE

V

JONATHAN SEPO

Kokopo: Lenalia, J.

2013: 11th, 15th 18th & 20th February

CRIMINAL LAW – Sexual offences – Sexual penetration of minor – Aggravations – Under age victim – Age 13 years – Penetration of minor and underage child – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.s.229 (A) (1)

CRIMINAL LAW – Sexual offence – Penetration of child under 16 years – Substantial age differences – No pattern of abuse - Aggravation – Punitive and deterrent sentence called for – Sentence of 5 years appropriate fully suspended with conditions.

Cases cited.

The State-v-Thomas Angup (2004) N2830

The State-v-Peter Lare (2004) N2557

The State-v-Kaminiel Okole (2006) N3052

The State-v-Penias Mokei (No.2) (2004) N2635

The State-v-Kemai Lumou (2004) N2684

The State-v-Eddie Trostie (2004) N2681

The State-v-Biason Benson Samson (2005) N279

The State-v-Titus Soumi (2005) N2809

The State-v-George Taunde (2005) N2807

The State-v-John Ritsi Kutetoa (2005) N2814

The Stat-v-Ndrakum Pu-Uh (2005) N2949

The State-v- Danny Makao (2005) N2996

The State-v-Tiama Esrom (2006) N3054

Stanley Sabiu-v-The State (2007) SC866

Counsel

Mr. L. Rangan, for the State

Mr. G. Kerker, for the Accused

SENTENCE

20th February, 2013

1. LENALIA, J: The prisoner entered a guilty plea to one count of sexual penetration pursuant to s.229A (1) an offence under of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The offence was aggravated by the age of the victim who at the time of the commission of the offence was at the age of 13 years. I quote the whole Section because it carries the message of how serious the offence of sexual penetration of underage girls is and secondly, those provisions provide for the maximum penalty of life imprisonment. The above provision 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, and is liable, subject to Section 19, to imprisonment for life.”

Facts

2. When the victim made her statement to the police, she gave an account of what happened to her on 27th October 2011. She was sleeping in her parents’ house and when the prisoner came to the house of Anita he saw the victim sleeping. After being to that house he came to where the victim was sleeping and invited her to come to his house to get a betel nut. The victim obeyed and followed the prisoner to his house. She climbed up onto the verandah to the prisoner’s house and sat down. He gave her betel nuts and she chewed.

3. While she was sitting on the steps, the prisoner asked her to scratch his back. The victim got up and told the prisoner that, he had children there and he should ask them to scratch his back. He walked into his house and when he returned he lifted the victim up and carried her into his house where he placed her on a mattress and put a blanket over her mouth then sexually penetrated her.

4. The Health Extension Officer at Keravat Rural Hospital who examined the victim a day after the incident said the vagina:

Ø Was open,

Ø Could admit one or two fingers,

Ø There was redness and blood seen on the vulva,

Ø No sperm was seen as she had had a wash prior to being medically examined.

Allocutus

5. In his address on his last say, the prisoner said sorry to the victim and her family. He said sorry to the Almighty God, to the Court and his community. He said, he is married with five children, three of them in school two of whom are in Primary school while one is in Elementary and two have not gone to school because they are small. He asked for leniency on sentence.

6. Mr. Kerker spoke to his written submission and submitted the following mitigations:

Ø The prisoner’s expression of remorse.

Ø He pleaded guilty.

Ø His previous good record with police with no prior conviction.

Ø He had paid some compensation of K600.00 wants to pay another K400.00.

Ø That this case was an isolated incident.

Ø His cooperation with the police during the investigations.

Ø He is the first time offender.

7. Counsel submitted that this case is not the worse type case and cited cases supporting his line of argument. Counsel submitted that, on this case there was no threat of violence, no force or intimidation were used and no injuries were sustained makes this case less serious than other cases such as The State-v-Kaminiel Okole (2006) N3052 or the case of The State-v-Thomas Angup (2004) N2830.

8. Mr. Rangan of counsel for the State submitted on the serious nature of the offence of sexual penetration of underage girls. He conceded with the defence counsel that this case is not serious and the court should consider a term of years to be imposed on the prisoner due to the prevalence of this crime and secondly as a means of deterrence to the public.

Pre-Sentence & Means Assessments Reports

9. The court had the privileged of reading the pre-sentence report and the means assessment reports. The prisoner’s wife Kellyn Joel Jonathan confirmed that, her husband and she had paid compensation of K600.00 cash from their hard earn money. Such compensation was paid in July 2012. The prisoner and his wife are active members of the PNG Revival Church. The couple had made a further undertaking to pay K400.00 cash as part of the compensation and as a token of remorse for what the prisoner did to the victim.

10. Monica Kasiel, the victim’s mother and the victim herself, Roselyn Kasiel were contacted for their comments by the Provincial Community Correction and Rehabilitation Officer Mr. David Simiriong. In the case of the mother, she agreed that on the afternoon of the date of the offence, she was surprised when she heard about the incident.

11. She confirmed the prisoner had paid compensation of K600.00 and handed over cooked food to the victim and her parents and the family members. That he had apologized to the victim and her parents and that they have then reconciled.

12. The victim expressed the effects of what the accused did to her when boys tease her by saying that the accused spoiled her and every time, she is teased, she feels really down-hearted and shame. She further added that the family of the prisoner and her parents and other children live a normal life.

13. A community leader Mr. Joel Michael was contacted who confirmed that in July 2012, the victim’s family and the prisoner and his family had reconciliated and the community at Tavilo Plantation and the CCI plantation management and staff were really happy about the reconciliation had between the families of those who were affected.

Application of law and Sentencing Trends

14. The prisoner is charged with one count of sexual penetration against s.229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. At the introduction of the offending proviso, the prisoner heard the court say that the maximum penalty provided for the above offence is 25 years imprisonment.

15. Where the offence is committed with circumstances of aggravations as defined by s.6A (2) (d) of the Act, the prescribed maximum penalty is life imprisonment. Subsections (2) & (3) of s.299A do not apply on the current case. The maximum penalty provided by the Section concerned is 25 years imprisonment. If the offence is committed with aggravation of a victim under the age of 12 years, an offender could be liable to life imprisonment subject to s.19 of the Criminal Code.

16. The offence of sexual abuse of children in this country is very prevalent. In this particular case, the victim was aged 13 years when she was penetrated. The circumstances under which this offence was committed could also amount to rape. This is because, Mrs. Eremah David says in her statement that she saw the prisoner holding on to the victim’s shirt and pulled her into the house where sex took place.

17. In this Province alone there is a very significant increase in sexual cases. Nobody knows what would be the reason for such increase. In this case there may be an element of breach of trust involved, because the prisoner is the father of five children.

18. This Court has discretion to impose a term of years below the prescribed maximum of 25 years pursuant to the sentencing discretion given to this Court by s.19 of the Criminal Code.

19. The sentencing trend varies from case to case depending on the circumstances of...