The State v Rovie Joachim Kulap And Tidoan Orim (2019) N7899

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 12 June 2019
• Court: National Court
• Citation: (2019) N7899
• Docket Number: CR NOS. 545 & 550 OF 2017
• Year: 2019
• Judgement Number: N7899

Full Title: CR NOS. 545 & 550 OF 2017; The State v Rovie Joachim Kulap And Tidoan Orim (2019) N7899

National Court: Anis J

Judgment Delivered: 12 June 2019

N7899

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 545 & 550 OF 2017

THE STATE

V

ROVIE JOACHIM KULAP and TIDOAN ORIM

Kerevat: Anis J

2019: 24 April, 17, 21 & 24 May, 6 & 12 June

CRIMINAL LAW – Sexual offences against a child – section 229A(1)(2) and (3) – Criminal Code Act Chapter No. 262 – sentencing upon guilty pleas – appropriate sentences – whether suspended sentences should be allowed with imposed conditions

Facts

The prisoners had pleaded guilty to one count each of penile penetration of a child who was 6 years and 8 years old, that is, at different times and locations where the offences were committed. This was their hearing on sentence.

Held

1. The starting point of sentence for prisoner Tidoan was 17 years and for prisoner Rovie 16 years.

2. Increase in the level of one’s education does not deter one from committing a crime or an offence. In other words, it does not require a primary school certificate or a university degree, so to speak, for one to understand that it is wrong to have sex or sexual relations with children or with a child who is also a family member. Both prisoners in this case were adults at the time they committed their offences. The ground was refused as an extenuating factor.

3. Punitive sentences were considered applicable, and 5 years sentences were added onto the sentences of the prisoners.

4. Accused persons who may wish to plead guilty should be allowed to do so, and at the same time, they should know or have confidence that the Court will give due regards to their guilty pleas when it comes to sentencing.

5. Courts, in my view, should be cautious and have reasonable regard to the interests of child victims in sexual assault cases when considering compensation in sentencing. The Court should ask itself not only whether the granting compensation as part of sentencing will in-fact be in the best interest of the child victim, but it should also ask itself this question, that is, What sort of intended or untended message(s) will the Court be sending out to the community at large if it orders a prisoner to pay compensation to the victim child or the victim child’s parents? Will that deter the commission of such crimes in the future?

6. Justice will be short-sighted if I am only required to consider the prisoners’ capacities to pay compensation with whether the parents of the victim child are happy with compensation.

7. If compensation is awarded herein, it would serve other purposes not directly beneficial to the victim child. It could also send mix or wrong signals or messages out to the community at large that for serious sexual offences against children, that one can get away with a lighter sentence by paying compensation.

8. Prisoner Tidoan was granted a partial suspended sentence of 6 years based on his youth status and age, that is, he was 18 years old at the time when he committed the offence.

9. No suspended sentence was granted to prisoner Kovie. He received a custodial sentence of 16 years less the time that he had spent in custody.

10. Prisoner Tidoan received a total sentence of 17 years, whereupon he shall serve a custodial sentence of 11 years less the time he had spent in custody, and later, a non-custodial sentence of 6 years with imposed probationary conditions.

Cases Cited

State v. John Ritsi Kutetoa (2005) N2814

State v. Joseph Baero (2014) N5925

State v. Amu Aru (2016) N6917

Stanley Sabiu v. The State (2007) SC 866

State v. Kevin Henry (No.4) (2019) N7864

Counsel

Ms J. Batil, for the State

Mr N. Katosingkalara, for the Prisoners

SENTENCE

12th June, 2019

1. ANIS J: The 2 prisoners (prisoners) were indicted separately, with 1 count each, for sexually penetrating a child under the age of 12 years, at different locations and dates. They both pleaded guilty to the offences under section 229A(1)(2) and (3) of the Criminal Code Act Chapter No. 262 (Criminal Code).

2. This is my ruling on sentence.

BACKGROUND

3. The prisoners are relatives of the victim. Prisoner Tidoan is the younger biological brother of the victim’s father, or an uncle. The first incident occurred sometimes between 1 January 2014 and 31 December 2014, at Butam Blocks at Warongoi in East New Britain. The victim was then 6 years old. Prisoner Tidoan took the victim and 2 of her cousins to a cocoa patch to harvest breadfruits. From there, the prisoner told the victim to accompany him into the bush to collect firewood. In the bush, prisoner Tidoan removed the victim’s trousers. He then removed his trousers, laid on top of the victim and sexually penetrated her by inserting his penis into her vagina. The child felt pain a cried. After having sex with the victim, prisoner Tidoan told the victim not to tell her parents of the incident. They both then returned to where the victim’s 2 cousins where at.

4. Let me now turn to prisoner Rovie. He is the brother of the victim’s father’s grandmother, or granduncle of the victim. The second incident occurred at a different location at Butam Blocks at Warongoi in East New Britain, and at a different date, that is, between 1 January 2016 and 31 December 2016. The victim was 8 years old then. Prisoner Rovie arrived at the victim’s house. Her parents were not at home. The prisoner placed the victim on a bench in the kitchen. He removed her pair of shorts and sexually penetrated her by inserting his penis into her vagina.

ISSUES

5. The issues are, (i) determining the appropriate sentences for the prisoners, and (ii), in relation to the type of punishments to be imposed, whether each prisoner is suitable for full or partial suspended sentence with imposed probationary conditions.

PRISONER TIDOAN

6. Prisoner Tidoan is 23 years old. He was 18 years old at the time of the first incident. He is not married. His level of education is grade 3 (primary education level). He has not shown interest in education and has indicated in the pre-sentence report that he plans to work on a block of land that he had purchased from the Bainings sometime ago.

7. He has no prior conviction.

8. This is what the prisoner said at allocatus. He said he respects the Constitution of the country. He said he respects the Court. He said that it was his first time to have been arrested by police in relation to the incident. He said sorry to the Court. He said sorry to the community, the victim and her family. He thanked the Court and asked if he could be placed on probation to help him for what he had done.

9. I note both counsels’ submissions on mitigating and aggravating factors for the prisoner. In my view, firstly, the mitigating factors are, (i), first time offender, (ii) guilty plea thus saving the Court’s time and avoid victim from having to retell or recall the ordeal, and (iii), the prisoner’s expression of remorse to the victim and her family. The aggravating factors, in my view, are, (i), tender age of the child, that is, 6 years old at the time of the incident, (ii), big age gap of the prisoner and the victim, that is, by 12 years, (iii), the psychological trauma suffered and experience which will be with the victim for the rest of her long life yet to come, (iv), the victim’s childhood innocence has been taken away from her at such a tender age, (v), the fact that the victim sustained injuries to her vagina, and (vi), the sexual assault involved penile penetration.

PRISONER ROVIE

10. I now turn to prisoner Rovie. He is 36 years old. I estimated 36 years old based on information provided in the prisoner’s Antecedent Report and from the tendered court depositions. I note however that in the prisoner’s pre-sentence report, he puts down his age as 25 years old. I had preferred to use the prisoner’s age based on information extracted from the Court depositions because the information therein was corroborated. Moving on, the prisoner is married with 3 children. His wife and children separated from him before the incident. They are presently living in the Autonomous Region of Bougainville. The prisoner’s education level is up to grade 3 (primary school level). In his pre-sentence report, he talks of returning home to live as a subsistence farmer.

11. The prisoner has no prior conviction.

12. This is what he said at allocatus. He said sorry to the victim’s parents and to the victim, for what he had done. He asked for leniency from the Court. He asked if he could be placed on probation. And he also asked if he could serve his sentence outside of prison.

13. Again, I note both counsels’ submissions on mitigating and aggravating factors for the prisoner. The mitigating factors, in my view, are, (i), first time offender, (ii) guilty plea thus saving the Court’s time and avoid the victim from having to retell or recall the ordeal, and (iii), the prisoner’s expression of remorse to the victim and her family. The aggravating factors, in my view, are, (i), tender age of the child, that is, 8 years old at the time of the incident, (ii), big age gap, that is, by 25 years, (iii), the...