The State v Lemek Jubin

• Jurisdiction: Papua New Guinea
• Judge: Susame, AJ
• Judgment Date: 22 October 2018
• Citation: (2018) N7523
• Court: National Court
• Year: 2018
• Judgement Number: N7523

Full : CR No 1142 of 2016; The State v Lemek Jubin (2018) N7523

National Court: Susame, AJ

Judgment Delivered: 22 October 2018

N7523

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1142 OF 2016

THE STATE

V

LEMEK JUBIN

Kokopo: Susame, AJ

2018: 12, 24, 26, 28 September & 22 October

CRIMINAL LAW – Sentence –After Trial - Offence – Sexual Penetration Of A Female Child Under 12 Years Of Age – S 229a (1) (2(3) - Sentencing Approach – The Need For Supreme Court To Categorize Sentencing Guidelines In Sexual Abuse Cases Of Children – Sentence Must Fit The Crime & Must Be Approached Objectively

CRIMINAL LAW - Sentencing Considerations- Factors Of Aggravation Outweigh Factors In Mitigation –Punitive & Deterrent Sentence Considered - Suspension Of Sentence Requires Proper Exercise Of Discretion - Factors To Consider – 17 Year Custodial Sentence Less Pre-Trial Custody Period.

Cases Cited:

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

Maima v Sma [1972] PNGLR 49

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

The State v Bonny Gongi Paulus [2018] PGNC 350; N7339

The State v Jessie Chadrol (2011) N4648

Counsel:

Mr. Tugah, for the State

Ms. Pulapula, for the Prisoner

DECISION ON SENTENCE

22 October, 2018

1. SUSAME AJ: This is the judgment on sentence. Offender has been convicted on 8 October 2018 after trial.

OFFENCE

S 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 years is guilty of a crime.

Penalty: Subject to subsection (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 Subjection (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 liable, subject to section 19, to life imprisonment.

2. Section 229A provides three different types of penalties depending on the 3 circumstances clearly defined in the provision. Offender in subsection (1) is liable for imprisonment to a maximum 25 years imprisonment term whilst offenders in subsections (2) & (3) are liable for imprisonment of up to maximum life years in jail. Court may consider a penalty lower than the maximum by invoking s19 powers depending on objective assessment of characteristics of the case.

3. The law is settled on maximum penalty in this jurisdiction. It should not be readily given except for a case consisting of grave or very serious aggravating facts and circumstances. (Goli Golu The State [1988-89] PNGLR 653, Maima v Sma [1972] PNGLR 49)

ALLOCUTUS

4. Prisoner was heard first in regard to his sentence followed by the counsels. Prisoner stated that it was his first time in court. When he was a young man he has never been in court. He asked for mercy of the court. He has been in custody for 3 years. He is a sick person. His legs are swollen and also has a swollen stomach. His wife and son are disable. He asked court to have mercy on him and place him on probation.

FACTS

5. Facts of the case are found in the judgment on verdict and will be referred to.

6. Prisoner is from Herovana village in the Lufa District of Eastern Highlands Province and lives in the same compound with the complainants. The victim and her 2 other friends named were playing when the prisoner told them to go play cards at his garden house at about 3.00pm on 24th October 2015. Prisoner issued verbal threats and promised to give them money so the girls accompanied him to his garden house. There the prisoner asked them to remove their clothes. Out of fear one of the girls fled from the scene. Prisoner then sexually penetrated the victim in the presence of her other friend. Evidence was lacking if the prisoner attempted to or sexually penetrated the other girl.

7. The girl was medically examined. Notable injuries found were she had a torn hymen. It was swollen with vaginal discharge due to infection.

SUBMISSIONS

8. First let me consider the submissions. In their respective submissions counsels reminded the court of the law on imposing of maximum penalty. Ms. Pulapula considered mitigating factors outweighed the aggravating factors. Mr. Tugah thought otherwise. Both reminded the court of sentencing guidelines in sexual offences laid down by His Honour Cannings J in State v Penias Mokei(N0.2) [2004]2004 N2635 & The State v Biason Benson Samson [2005] PGNC 160; N2799 and followed in The State v Ndrakum Pu-Uh (2005) N2949. Those considerations were endorsed by the Supreme Court in Stanley Sabui v The State [2007] PGSC 24; SC866.

9. Counsels referred the court to several comparable decisions. I will refer to them a bit later on. Ms. Pulapula submitted in conclusion starting point of 6 years should be applied but wholly suspended in consideration of mitigating factors.

10. Mr. Tugah for the State submitted offence is quite serious and prevalent in the society especially in East New Britain Province. A term of years should be imposed as a stern warning for purposes of deterrence.

SENTENCING CONSIDERATIONS

11. Set out below are the sentencing considerations approved by the Supreme Court in Stanley Sabui v The State (supra):

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. Was it an isolated incident?

9. 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?”

12. I adopt the guidelines and use them as a guide.

COURT’S OPINION

13. Sentencing guidelines set by the courts apply to all sexual offences. There are no known Supreme Court decisions categorizing sexual abuse cases against children under the age of consent and factors that would make a case so grave to warrant the maximum penalty. There was an attempt by AJ Numapo in a recent case of The State v Bonny Gongi Paulus [2018] PNNC 350; N7339 (20 June 2018). At paragraph 8 of the judgment His Honour considered factors that should make a worst type case. These are:

(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.

14. The above factors are not exhaustive and subject to review and additions made. If I may add a few more factors:

· Use of weapons to frighten or injure

· Offence committed in the course committing another serious crime.

· Offence committed while on license or parole

· There was pre-planning.

· Victim was a disability child

15. Parliament was serious in addressing escalating law and order issues our country was facing which attracted criticisms from the public and the global community which in turn gave us a bad rating amongst other nations. Considering these concerns Parliament introduced a series of laws by amendment N0. 27 of 2002 which became operational on 10 April 2003. This included offences against children.

16. Going by the guidelines in Stanley Sabui v The State factors in aggravation outweigh the factors in mitigation. Are there factors present to make this case so grave to attract the maximum life sentence?

17. There are none. A sentence lower than the maximum...