The State v Stanely Sabiu (2005) N3659

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 21 December 2005
• Citation: (2005) N3659
• Docket Number: CR NO. 1832 of 2005
• Court: National Court
• Year: 2005
• Judgement Number: N3659

Full Title: CR NO. 1832 of 2005; The State v Stanely Sabiu (2005) N3659

National Court: Kandakasi, J

Judgment Delivered: 21 December 2005

N3659

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1832 of 2005

THE STATE

-V-

STANELY SABIU

Vanimo: Kandakasi, J.

2005: 13th and 21st December

DECISION ON SENTENCE

CRIMINAL LAW –Sentence – Sexual penetration of a girl under 12 years – Physical injuries caused - Offence committed in breach of trust as uncle – Guilty plea – First time offender – Substantial age difference - Aggravating factors outweighing those in mitigation – years imposed - Sections 229(92) of Criminal Code.

Cases cited:

The State v. Eddie Trosty (10/09/04) N2681.

The State v. Peter Lare (20/05/04) N2557.

The State v Kemai Lumou (23/09/04) N2684.

The State v. Thomas Angup (21/04/05) N2830.

The State v. John Ritsi Kutetoa (22/03/05) N2814.

The State v Abel Airi (28/11/00) N2007.

The State v. Sinzai Karawa (27/08/04) N2631.

The State v Ebes Tiun (30/04/01) N2129.

The State v. Lucas Yovura (29/04/03) N2366.

The State v Isidor Kaream (11/05/04) N2610.

The State v. Henry Mapi (03/07/98) N1936.

The State v. Blasius Amandin Parlau (25/03/04) N2680.

The State v Nason Samban (25/03/04) N2598.

James Mora Meaoa v. The State [1996] PNGLR 280.

The State v. Eddie Peter (No 2) (12/10/01) N2297.

The State v. Nivi Araba (22/04/99) N1849.

The State v Damien Mangawi (13/06/03) N2419.

The State v. Donald Poni (22/09/04) N2663.

The State v. Kenneth Penias [1994] PNGLR 48.

Seo Ross v. The State (30/04/99) SC605.

The State v. Saperus Yalibakut CR NO. 1476 of 2005 (Judgment delivered on 26/09/05).

Counsels:

Mr. J. Wala, for the State.

Mr. G. Korei, for the Prisoner.

21 December, 2005

1. KANDAKASI J: You pleaded guilty to one charge of sexual penetration of a child under the age of 12 years, contrary to s.229A (1) and (2) of the Criminal Code.

Relevant Facts

2. The facts to which you pleaded guilty are these. On 31 March, 2005, at Amini village, here in the Sandaun Province, around 10:00 am, the victim of your offence (named), then a 6 year old boy went with other children in the village to scrap sago. Some minutes later, you followed the children. When you reached where the children were, you grabbed the victim and carried him away to the nearby bushes. The victim cried and shouted and struggled to free himself from you but you over powered him. The other children ran away in fear.

3. When in the bushes, you forced the victim to bend down with his head down. You then lifted a jacket he was wearing that time, forced your penis into the victim’s anus and proceeded to have anal sex with him until you ejaculated your sperm. In the process, you caused the victim to suffer bruising from which he bled and suffered great pain. The victim’s parents and other villagers had no difficulty in finding the victim bleeding from his anus with remains of your sperm and discovered what you did. The parents of the victim reported you to the police, who arrested and charged you.

3. Meanwhile, the victim recovered from the physical injuries you caused him. However, there is no evidence of whether he has recovered from the psychological injuries you caused him by doing what you did. In the circumstances, I will allow myself to be guided by the well known normal consequences of such sexual attacks on young children or any other person. I will take this up further when considering the factors for and against you.

4. You tried to justify what you did by claiming that you had personal grudges with the victim’s parents over you not receiving bride price for the victim’s mother. You claimed in your allocutus that, you raised the victim’s mother who is a sister to you when she was small and that entitled you to bride price when she got married but did not receive any but others did. So you attacked the victim in the way you did.

The Offence and Sentencing Trend

5. Section 229A (1) and (2) of the Criminal Code creates and prescribes the offence of sexual penetration of a child as follows:

“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 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.”

6. The Criminal Code (Sexual Offences and Crimes Against Childrens) Act 2002 introduced this offence in these terms by way of an amendment to the Criminal Code. The offence pre-existed the amendment. Section 213 of the Code provided for and prescribed life imprisonment as the maximum penalty for sexual penetration of a girl under 12 years old. Out of a serious concern for the protection of children in line with international measurements taken for the protection of children, Parliament amended the then existing law to better provide for the protection of children. It increased the then prescribed maximum penalty for sexual penetration of a girl under sixteen years to 25 from a low of 5 years and made provision to cover both sexes. At the same time, Parliament decided to retain the penalty prescription of life imprisonment for the sexual penetration of a girl under the age of 12 years and also make that apply to the other gender as well.

7. In The State v. Eddie Trosty,

xxxv (10/09/04) N2681.

xxxv1 I held that in view of the reasons for the amendments to the law, sentences for the offence of sexual penetration of child under the age of 16 must be beyond the maximum prescribed under the old law. I then decided to impose a sentence of 6 years on a guilty plea. The prisoner and his victim were in boy friend and girl friend relationship. The victim was 15 years old whilst the prisoner was 21 years old at the time of the offence. They had several sensual sexual intercourses. The prisoner did not cause any injuries to the victim. He also did not introduce the victim to any sexually transmitted disease. These factors influenced me to arrive at the sentence of 6 years.

8. Earlier on in The State v. Peter Lare,

xxxvi (20/05/04) N2557.

xxxvi2 I imposed a sentence of 20 years. There, the prisoner was an uncle to the victim and he had several and or repeated acts of sexual penetration of the victim over a four year period. There was substantial age difference between them. The prisoner was 40 years old whilst the victim was under age 12. The prisoner did not express any genuine remorse, evidenced by a lack of payment of any form of compensation to the victim and her side. Further, the prisoner infected the victim with a sexually transmitted disease.

9. In arriving at that sentence, I noted that:

“This amending legislation came about out of a growing concern over an ever increasing and prevalent sexual offences and crimes against …children. This concern was not only a local PNG concern but a world wide concern to protect the victims of such crimes particularly women, girls and children because of their vulnerability and therefore not able to defend themselves. The amendment also represents an action by Parliament against past sentences not deterring offenders like you and other would be offenders. Many judgments have acknowledged this failure of the past sentences. Examples of such judgments to name only a few are: The State v. Damien Mangawi (Unreported judgment delivered on 13/06/03) N2419; The State v. Dii Gideon (Unreported judgment delivered on 05/03/02) N2335.

No doubt, Parliament [was] …aware of the kind of sentences the Courts were imposing and more importantly those sentences failing to deter other men and older boys who were intent on committing this offence against small girls. Some of the cases that went before the Courts were actually rape and others were cases of incest in blatant breach of trust placed in the older offenders by the victims as close relatives. Parliament therefore felt the need, in my view, to re-emphasis the seriousness of the offence and re-enacted offence and in terms of the particular wording in s. 229A. This enactment has come at a time when past sentences have certainly not deterred people like you from committing the offence despite all the concerns raised publicly both within our country and in the international arena”.

10. Having regard to the sentence and the particular circumstances in which the prisoner committed the offence in the above case, I imposed a sentence of 17 years...