The State v Philip Soni & Tony Ilong (2008) N3694

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu, J
• Judgment Date: 14 November 2008
• Court: National Court
• Citation: (2008) N3694
• Docket Number: CR No. 227 & 229 OF 2006
• Year: 2008
• Judgement Number: N3694

Full Title: CR No. 227 & 229 OF 2006; The State v Philip Soni & Tony Ilong (2008) N3694

National Court: Gavara–Nanu, J

Judgment Delivered: 14 November 2008

N3694

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 227 & 229 OF 2006

BETWEEN:

THE STATE

AND:

PHILIP SONI & TONY ILONG

Kavieng: Gavara–Nanu, J

2008: 14 November

CRIMINAL LAW – Sentence - Pleas of guilty – Sexual penetration of a girl under 16 years old by two young men – Criminal Code Act, Chapter No. 262 (as amended) – s. 229A(1) – Victim mentally disabled – Sexual intercourse non-consensual – Application of the doctrine - “most favourable version of facts” for the accused in respect of the versions of facts given by the accused in their Records of Interview – Application of the doctrine not limited to statements made on allocutus– Aggravating factors outweighing mitigating factors – Penalty should reflect accused’s decision to plead guilty – Sentence of 15 years imprisonment and K500 fine.

Case cited:

Papua New Guinea Cases

Immiyo Wamela v. The State [1982] PNGLR 269

John Baipu v. The State (2005) SC 796

Koniel Alar & Hosea Biu v. The State [1979] PNGLR 300

Leonard Sabadi v. The Police (2002) N2164

Mitige Neheye v. The State, Martin Gawi v. The State [1994] PNGLR 71

Peremai Naroi v. The State [1987] PNGLR 293

Public Prosecutor v. Tom Ake [1978] PNGLR 469

R v. Gabai Vagi [1973] PNGLR 30

Saperus Yalibakut v. The State (2006) SC 890

The State v. Aaron Lahu N2798

The State v. Baika Martin (2008) N3312

The State v. Billy Kauwa [1994] PNGLR 503

The State v. Binga Thomas N2828

The State v. John Erip Muge (2006)

The State v. Kemai Lumo N2684

The State v. Lastin Inom N329

The State v. Mark Kanapio (2005) N2800

The State v. Michael Siwiri (2006) N3382

The State v. Ndrakum Pu-Uh (2005) N 2949

The State v. Patrick Jul (2005) N3167

The State v. Thomas Angup N2830

The State v. Tobby Tani N2063

The State v. Willie Domonic (2005) N2938

Other case cited:

Weaver v. Samuels (1971) SASR 116

R v. Tait (1979) ALR 473

Counsel:

S. Kesno, for the State

O. Oeveka, for the Accused.

1. GAVARA–NANU J: The accused pleaded guilty to a charge on an indictment that they each and severally on 2nd August, 2005 at Talis village in Lihir Island sexually penetrated one Rufina Katel a female under the age of 16, contrary to s.229 A (1) (a) of the Criminal Code Act, Chapter No. 262 (as amended)

2. This offence carries the maximum penalty of 25 years imprisonment.

3. The facts of the case are as follows; on 2nd August, 2005, the victim and a friend, Dorothy Pangpang were returning to their village from Palie Health Centre after visiting the victim’s aunty who had delivered a baby at the Health Centre. On the way, the victim and Dorothy met up with the accused. As they were walking towards the victim’s house, Tony Ilong (Tony) offered the victim a betel nut, then suddenly, accused Philip Soni (Philip) pulled the victim into the nearby bushes, removed her clothes then told her to lie down on the ground he then sexually penetrated her. After Philip sexually penetrated the victim, she was coming out of the bush when Tony who was waiting on the road pulled her by the hand and took her to the same bush and sexually penetrated her. The victim went and reported the matter to one of her aunties in the village.

4. The offence took place in the evening at about 7.00pm.

5. The victim had only been up to Grade 4 in school because she had an existing mental condition which had forced her father to withdraw her from school. Both accused were aware of this at the time of the offence.

6. The undisputed evidence shows that after the accused sexually penetrated the victim, she was crying as she went and reported the matter to her aunty. The aunty reported the matter to the victim’s mother and the two women went to the accused and got on them.

7. At the time of the offence, the victim was 14 years old, Philip was about 18 years old and Tony was about 23 years old. Thus, the age difference between the victim and Philip was about 4 years and with Tony, it was about 8 years.

8. The Court has been told that Tony is now married, he has no formal education, Philip on the other hand is single, he has reached Grade 10 in school. He has also done 3 years training at a vocational school for which he holds a Certificate.

9. Both accused have in the past worked for Lihir Gold mine. They were on K500.00 cash bail until 4th of this month when they were remanded in custody by the Court following their conviction after they pleaded guilty to this offence. They are both first time offenders and have expressed remorse. One of the main aggravating features about this case as I alluded to earlier is that the victim had an existing mental condition, which both accused were aware of as they admitted this in their respective Records of Interview.

10. Sexual intercourse with the victim was nonconsensual. This is indicated clearly by the victim crying and reporting the incident to her aunty. The other girl Dorothy Pangpang also witnessed the two accused pulling the victim into the nearby bushes where they sexually penetrated her.

11. There is no evidence or even suggestion by the accused that the victim may have or had encouraged them to have sex with her. Nor is there evidence that she may have had sexual relationships with them or either of them before the incident.

12. This is a case where two accused used the victim for their sexual gratification. The victim in her statement to the police states that when Philip penetrated her, she felt great pain. Unfortunately there is no medical report to show whether she was a virgin at the time of the offence, not that it would make much difference to the punishment for the accused. Because of the absence of medical evidence, I am also deprived of information as to the injuries the victim suffered, if any. But that aside, there is no doubt in my mind that the victim did suffer mental and psychological damage which she will bear for the rest of her life. There cannot be any doubt about this, given her mental condition. She was a victim of a serious sexual assault by two young men, who acted in concert. This aggravates the offence.

13. The defence has submitted that 8 to 12 years imprisonment would be an appropriate punishment for the accused. In considering their sentence, I note that both accused have maintained in their respective Records of Interview that the victim was a willing party. This assertion by the accused conflicts directly with the story given by the victim, Dorothy Pangpang, the two aunties and the mother of the victim in their respective statements to the police.

14. The question then is, should I accept the version of facts given by the accused in their respective Records of Interview that the victim was a willing party or that she encouraged them to have sex with her; as being the most favourable version of facts for the accused? Adoption of this doctrine, i.e. ‘a version of facts or events that is most favourable to the accused’, is dependent on whether the version given by the accused is within the bounds of reasonable probability. It should be noted that the doctrine applies generally to a statement made on allocutus by an accused which the Court should take into account towards mitigation of punishment for the accused. The doctrine is applicable when there is a conflict between the version of facts given by the accused and the version of facts given by the State witnesses. See, The State v. Lastin Inom N329; The State v. Billy Kauwa [1994] PNGLR 503; The State v. Tobby Tani N2063; The State v. Aaron Lahu N2798; The State v. Binga Thomas N2828; The State v. Mark Kanupio (2005) N2800; The State v. Willie Dominic (2005) N2938; The State v. Ndrakum Pu-uh (2005) N2949; The State v. Patrick Jul (2005) N3167; The State v. Baika Martin (2008) N3312; The State v. Michael Siwiri (2006) N3382; Koniel Alar & Hosen Biu v. The State [1979] PNGLR 300; Public Prosecutor v. Tom Ake [1978] PNGLR 469; Imyo Wamela v. The State [1982] PNGLR 269; Peremai Naroi v. The State [1987] PNGLR 293; John Baipu v. The State (2005) SC 796; Saperus Yalibakut v. The State (2006) SC890; R v. Gabai Vagi [1973] PNGLR 30 and The State v. John Erip Muge (2006). See also Weaver v. Samuels [1971] SASR 116, at 119 and R v. Tait (1979) 24 ALR 473.

15. The doctrine however has a broad application, thus its application is not limited to statements made by the accused on allocutus, it would also apply to a version of facts or events given by the accused in their Records of Interview where the accused plead guilty as in this case and where the accused seek to rely upon the version of facts given in their Records of Interview as a mitigating factor; see The State v. Lastin Inom (supra); Public Prosecutor v. Tom Ake (supra) and Leonard Sabadi v. The Police (2002) N2164. The application...