The State v Virgil Kageni

• Jurisdiction: Papua New Guinea
• Judge: Toliken AJ
• Judgment Date: 26 November 2012
• Citation: (2012) N5162
• Court: National Court
• Year: 2012
• Judgement Number: N5162

Full : CR 13 (NO. 2) of 2009; The State v Virgil Kageni (2012) N5162

National Court: Toliken AJ

Judgment Delivered: 26 November 2012

N5162

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 13 (NO. 2) OF 2009

THE STATE

V

VIRGIL KAGENI

Popondetta: Toliken, AJ

2012: 14th August

26th November

CRIMINAL LAW – Sentence – Sexual Penetration of child under 16 years – Plea – Offence committed when prisoner was a juvenile – Mitigating and aggravating factors considered – Head sentence of 5 years – Period spent in pre-sentence custody deducted – Criminal Code Act Ch.262, s 229A (1), Criminal Justice (Sentences) Act 1986, s 3.

Cases Cited:

The State –v- Abba Bani (2008) N3863

Wellington Belawa –v- The State [1988-89] PNGLR 496

The State –v- Peter Lare (2004) N2557

The State –v- Pennias Mokei (No.2) (2004) N2635

The State –v- Eddie Trosty (2004) N2681

The State –v- Kemai Lumou (2004) N2684

The State –v-John Ritsi Kutetoa (2005) N2814

The State –v- Michael Siviri (2006) N3382

The State –v- Braun Kawage (2009) N3696

The State –v- John Okuba (2009) N3726

The State –v-Philip Peter (2010) N4011

Counsel:

M. Ruarri, for the State

A. Ninkama, for the accused

JUDGMENT ON SENTENCE

26th November, 2012

1. TOLIKEN AJ: On 26th of May 2004, around mid-day, at Igora Block, Popondetta, 14 year old Cathy Timothy was walking home from school. She met you on the road. She greeted you but you didn’t reply. Instead you grabbed her by her left breast as she walked passed you. She removed your hands but then you grabbed her and carried her down a creek and into the bush where you dropped her on the ground.

2. You pulled off her skirt and underpants, took out your erect penis, penetrated her vagina and had sex with her without her consent until you ejaculated.

3. You then took her further into the bush. There you again sexually penetrated her without her consent. After that, she pretended to go and urinate but instead fled the scene and went straight home crying and reported the matter to her mother.

4. On 14th of August 2012, the State initially indicted you for one count of rape. The Prosecutor, however, withdrew the count of rape and instead indicted you for sexual penetration of a girl under 16 years contrary to Section 229A, Criminal Code Act.

5. You pleaded guilty to the charge and also admitted the supporting brief facts which I have recited above.

6. I confirmed your plea after perusing the committal depositions. I was satisfied that the evidence supported the charge and your plea.

7. I wasn’t able to pass my sentence then so I do so now.

ANTECEDENTS

8. You come from a family of 3 brothers and a sister. You are the eldest. Your mother is still alive but your father passed away. You have no formal education. You attend the Apostolic Church. You have no prior convictions. I accept that you would have been under 18 years old when you committed the offence.

ALLOCUTUS

9. In your address to the Court before sentence, you apologized to the victim, her family and relatives.

10. You expressed remorse saying that you now realized that you had broken the law. You told the Court that you had been in custody for a period of 4 years and 3 months while awaiting trial. You said this is your first offence, hence, you asked for leniency.

SUBMISSIONS

Your Counsel

11. Mr Ninkama submitted that while your offence attracts a maximum penalty of 25 years, the maximum penalty is always reserved for the worst category of cases as is well settled. Furthermore, each case should be treated on its own merits and particular facts (Goli Goli –v- The State [1979] PNGLR 653; Lawrence Simbe –v- The StateI [1994 PNGLR 38.

12. Mr Ninkama submitted that at the time of the offence, you were 17 years while the victim was then 14 years old. Hence you were a juvenile where you committed the offence and should therefore be treated as such under the provisions of the Juvenile Courts Act 1991. Your sentence should therefore be appropriate to a juvenile offender.

13. Your lawyer submitted that your early plea has saved time and money for the State in that it has not been forced to run a trial.

14. He also said that there are extenuating circumstances in your case. These are:-

· The age disparity between you and the victim is only three years, you were 17 years and she was 14 years.

· The victim did not suffer any permanent physical injuries or get pregnant or contract any Sexually Transmitted Infection (STI).

· This was a one-off incident.

15. Counsel however, conceded that against these are the following factors:-

· This is serious offence over which Parliament had increased the penalty to protect children from sexual abuse and violence and this is reflected in the maximum penalty prescribed.

16. Mr Ninkama cited several cases to me which he said should assist me in arriving at appropriate sentence for you. These are:- The State –v-Philip Peter (2010) N4011; The State –v- John Okuba (2009) N3726; The State –v- Abba Bani (2008) N3863. I will discuss the details of these cases later as in this Judgment.

17. He, however, said that your case could be easily distinguished from these cases for the following reasons.

(1) At the relevant time, you were a juvenile.

(2) The age disparity between you and the victim was only 3 years as compared to 26 years in the case of John Akuba (supra) which case attracted an 8 years sentence.

(3) While your case is similar to other cases in that, they were all one-off incidents. There was no pre-meditation or planning on your part. He said this was a crime of opportunity - of instant lust.

(4) There was not physical injury though he conceded that the victim did lose her virginity.

18. Mr Ninkama, therefore submitted that an appropriate sentence for you should be less than 8 years.

19. He submitted that apart from the age disparity, your case is more similar to the case of Peter Philip (supra) though he was a youthful offender. In that case, the prisoner had pleaded guilty to consensual sexual penetration of a girl under age of 16 years. She was 15 years old while he prisoner was 20 years old. That was a one-off incident. The prisoner was sentenced to 5 years imprisonment of which 1 year and 7 months was deducted for pre-trial custody period. The balance was wholly suspended.

20. Mr Ninkama, therefore submitted that an appropriate head sentence for you should be 5 years. The period you spent in custody should be deducted from that and the balance wholly suspended.

Counsel for the State

21. Mr Ruarri for the State, on the other hand submitted that contrary to what your Counsel said, yours is not an early plea. Because you had previously pleaded not guilty to rape and only charged, your plea when the charge was reduced to sexual penetration of a child. You were committed for trial in 2008.

22. Mr Ruarri said that there was no consent and that you used force to achieve your purpose.

23. As to suggestions that you have expressed remorse, Mr Ruarri said that any expression of remorse does not carry any weight without compensation or direct apology to the victim. (Belawa –v- The State [1988-89] PNGLR 496) The State –v- Michael Siviri (2006) N3382).

24. Mr Ruarri also referred me to several cases where the Courts had imposed sentences ranging from 12 years to 20 years. These cases involved adult perpetrators and were committed against children of varying ages from as low as 10 years old. These are the cases of The State –v- Peter Lare (2004) N2557; Saperius Yalibakut (2006) SC 890; The State –v- Brown Kawage (2009) N3696; The State –v-John Ritsi Kutetoa ((2005) N2814. I will return to these cases later.

25. Mr Ruarri, therefore, submitted that an appropriate sentence in your case should be 15 years imprisonment.

THE OFFENCE

26. The offence of sexual penetration of a child under age of 16 years is provided by Section 229A (1) of the Criminal Code Act, Ch. 262. It provides:-

“229A. Sexual Penetration of a Child

(1) A person who engage in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to sub-section (2) and (3), imprisonment for a term not exceeding 25 years.

(2) …

(3) …”

27. The predecessor to Section 229A(1) is Section 216 (Defilement of girls under 16 and idiots) which was repealed by Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No.27 of 2002) S.11. The penalty under the repealed provision was a term of imprisonment not exceeding 5 years. Furthermore, the offence was a mere misdemeanour.

28. Parliament, however, increased the penalty for this offence (and similar offences against children) markedly through the Criminal Code (Sexual Offences Against Children) Act 2002 five-fold from 5 years to 25 ears. Sexual penetration of children under 12 years and where there is...