The State v Joseph Baero

• Jurisdiction: Papua New Guinea
• Judge: Kawi-iu, AJ
• Judgment Date: 31 October 2014
• Citation: (2014) N5925
• Court: National Court
• Year: 2014
• Judgement Number: N5925

Full : CR NO 680 OF 2014; The State v Joseph Baero (2014) N5925

National Court: Kawi-iu, AJ

Judgment Delivered: 31 October 2014

N5925

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 680 OF 2014

THE STATE

-V-

JOSEPH BAERO

Buka: Kawi-iu, AJ

2014: 22, 24, 31 October

CRIMINAL LAW– Sentence –– Mitigating factors considered – Plea of Guilty – First time offender ––No Expression of remorse - Aggravating factors considered – Close relationship of trust and dependency – Breach of trust - No compensation, reconciliation or personal apology – Head sentence of 15 years less time spent in custody – Balance wholly suspended on conditions - Criminal Code Act Ch. 262, ss 229A (1)(3), 19 .

Cases Cited

The State v Biason Benson Samson (2005) N2799

The State v George Taunde (2005) N2807

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

Jack Mari v The State SCR No. 19 of 2006, 02.03.07

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

The State v Pennias Mokei CR 596 of 2004 (Unnumbered, unreported)

The State v Peter Lare (2004) N2557

State v Peter Lare (2004) N2557

Stanley Sabiu -v- The State (2007) SC866 (27 June 2007).

The State v Titus Soumi (2005) N2809

State v Tom Angut (2004) N2557

State v Tomas Angut (2005) N2830

The State v Willie Dominic (2005) N2938

Counsel:

J. Waine, for the State

Mr Lugabai, for the accused

SENTENCE

31st October, 2014

1. KAWI-IU, AJ: You pleaded guilty to a charge that you did on a date in August 2013 at Tarara sexually penetrated one JS a child under the age of 16 years. And at the time you restrained her before the commission of the offence, and immediately after the commission of the offence you used threats and that she was in a relationship of trust, authority and dependence with you. This is an offence under section 229A (1) (2) (3) of the Criminal Code Act Ch. 262 (the Code).

FACTS

2. The brief facts against you are as follows. The victim was 12 years old at the time of the commission of the offence. She is your step daughter and was living with you at Tarara village at the time. That sometime in the month of August 2013 in the middle of the night when the victim was fast asleep you took off her trousers. When she woke up and tried to scream, you held her mouth tightly to close it and forcefully held her down on the bed hence she could not free herself and escape. Whilst in that position, you forcefully penetrated her vagina with your penis. When you finished, you threatened her saying that her mother and relatives would beat her up if she told them.

ANTECEDENTS

3. At the time you committed the offence, you were 40 years old. You are married with 3 children age 15, 7 and 2 years. You are a member of the Catholic Faith. You are a subsistence farmer and had been in custody since 30/12/13 (9 months and 20 days). You are a first time offender.

ALLOCUTUS

4. In your address you told the Court that what you did was wrong. You apologised to the victim and her family. You also apologised to your family. You told the Court that you were tempted and did what you did and promised not to do it again. You apologised to the family of your wife and the community. You apologised to your wife and the three children. You told the Court this is your first time in Court. You asked for Court’s mercy. You told court that you are getting over 40 years now. You finally asked court to consider placing you on probation or GBB.

Submissions on Sentence

Defense Counsel

5. Your lawyer Mr Kirriwom informed the court that the maximum sentence for your offence is 25 years, subject to court’s discretion under section 19 of the Criminal Code. He submits that factors against you were that the offence was perpetrated on a child of tender age of 12 years. She is your step daughter. That the offence may be akin to one of rape.

6. However, he urged the court to weigh these factors against those in your favour. These are your plea of guilty, cooperation with the police, expressed genuine remorse, and you are a first time offender. Your lawyer referred me to a couple of cases. Firstly, the case of The State v Pennias Mokei CR 596 of 2004 (Unnumbered & Unreported). In that case His Honour Cannings J. sets out certain considerations as factors in considering appropriate sentences. These considerations will be referred to a little later ( para.32 below).

In approving these considerations the Supreme Court in Stanley Sabiu -v- The State (2007) SC866 (27 June 2007), reiterated that a sentencing judge must take into account all the circumstances of the particular case before him/her when determining the appropriate sentence.

7. The consideration to be taken as factors in Pennias Mokei (supra) has set the scene for other considerations in other cases. For example in the cases cited below the court have taken into account as factors of aggravation when the child is infected with sexual transmitted disease, or made pregnant. The circumstances referred to above can be taken appropriately as either mitigating or aggravating the offence.

8. The State v Peter Lare (2004) N2557. In that case the victim was aged 10 years and abused continued until she was 14 years of age. She was the step daughter of the accused. When she revealed these to her relatives she was taken to hospital, and found to be infected with sexual transmitted infection (STI). The STI alone was taken as a factor of aggravation in which accused was sentenced to 20 years imprisonment.

9. State v Tomas Angut (2005) N2830. In that case the victim was 12 years of age. Sexual acts continued until she was 14 years of age. Accused charged with sexual touching and sexual penetration over the period. Accused was the step daughter of the victim. She was impregnated and became a mother before the age of 15. Her education was cut short as she was expelled from school. Accused was sentenced to 10 years imprisonment.

10. For your case your lawyer urged the Court to take heed of the following matters which would mitigate your sentence. Your case is a one off incident, no pattern of sexual abuse over a period of time, victim not infected with sexual transmitted infection/sexual transmitted disease, and no aggravated violence caused on the victim.

11. Your lawyer submits for the court to consider an appropriate sentence which he says to be between 12 – 14 years imprisonment and further submits that court exercise its discretionary power under section 19 of the Criminal Code to suspend part of the sentence.

12. Finally your lawyer referred to a medical report for a diagnosis of a condition described as epidydimocitis (sic). It is not known for what aspect this document was tendered at this late stage without prior notice to the State. However, State did not raise objection to its tender. As to what the term means is any body’s guess. However without attempting to define the word in its technical or medical meaning suffice to say that it relates generally to a condition affecting the male reproductive system.

13. In the absence of an explanation of the purpose for tender of the document it could only be assumed that such condition was introduced to sway the court to consider a non custodial sentence, on medical ground.

State’s Submission:

14. Counsel for the State in his preliminary remarks, says that the penalty for the present offence is a maximum of life imprisonment as the accused was charged under section 229A (2) (3) of the Criminal Code Act.

15. He says remorse to be considered as genuine must accompany tangible acts on the part of the accused, e.g. payment of compensation. In respect to the medical report he enquired - is the illness life threatening? Victims of rape and all sexual assaults suffer long term traumatic and other psychological insecurities.

16. Although acknowledging the defence submission in respect to mitigating and aggravating factors, he submits that these factors are to be weighed against other factors. Counsel then refers to the case of Stanley Sabiu -v- The State (2007) SC866 (27 June 2007).

17. That case involves a child under the age of 12 years (6 years) and a sentence of 17 years imposed by the National Court was upheld on appeal. Appellant had pleaded guilty to sexually penetrating a child under the age of 12 years, contrary to s.229A (2) Criminal Code.

18. The facts of that case are that - the Appellant had followed the victim, his 6 year-old nephew, into some bushes and forcibly had anal intercourse with him, causing the boy to suffer bruising, bleeding and pain as a consequence.

19. As to appropriate penalty counsel refer to the case Sabiu (supra) and says that children victim 12 -15 years old starting sentence should be 15 years, to be adjusted up or down depending on mitigating and aggravating factors.

20. He further submits that that case was decided in 2007 and circumstances have changed during the years thus warranting a starting point of 17 years, adjustable with circumstances of mitigation or aggravation.

21. In reply defence submits that the State is proposing a quantum leap to 17 years as a starting point. This he...