State v Lepi (No 2) [2002] PGNC 48; N2278 (22 July 2002)

N2278

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.942 of 2001

THE STATE

-V-

MOKI LEPI (N0.2)

WAGANI: KANDAKASI, J.
2002: 11th & 22nd July

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Attempted unlawful carnal knowledge of girl under ten years and indecently dealing with girl under 16 years old – Conviction after trial – No prior convictions - Substantial age difference between prisoner and victim – Offences committed in breach of trust situation – No expression of remorse – Pre-sentencing report recommending against probation supervision – Need and call for stiffer penalties against persons offending against children considered – A punitive and deterrent sentence called for – Sentence of 8 and 3 years cumulative imprisonment imposed – Criminal Code ss. 215, 217 and 19.

Cases cited:
The State v. Joseph Minjihau (unreported judgement) N2243.
The State v. Peter Yawoma (Unreported judgement) N2032.
The State v. Thomas Dika Guta (unreported judgement) N841.
The State v. Ottom Masa (unreported judgement) N2021.
The State v. Thomas Pipon [1988-89] PNGLR 179.
The State v. James Gurave Guba (unreported judgement) N2020.
The Acting Public Prosecutor v. Haha [1981] PNGLR 20.
Public Prosecutor v. Kerua & Ors [1985] PNGLR 85.
The State v. Kenny Reuben Irowen (unreported judgement) N2239.

Counsels:

Mr. M. Olewale for the State

Mr. D. Kari for the Accused

22nd July, 2002

KANDAKASI J: On the 30th of April 2002, this Court found you guilty and convicted you on one count each of attempted unlawful carnal knowledge of a girl under tens years and indecently dealing with a girl under 16 years old. You were then remanded in custody pending your sentence. Much of the delay in getting to a decision on sentence was caused by the non-availability of your lawyer to address the Court on sentence until the 11th of this month.

The relevant facts are set out in the judgement on verdict delivered on the 30th of April 2002. For the purposes of determining an appropriate sentence for you, the following facts need only be noted:

1. You committed these offences against a child who was at the time of the offences only 5 years old;
   
2. You are a grown up man married with children and therefore there is a substantial age difference between you and the victim;
   
3. You committed these offences over the period 1st March and 31st September 1997 with instances of indecently treating the victim being repeated;
   
4. The victim trusted you as an uncle and a Christian friend who taught and sang to her God’s songs and read to from the Bible;
   
5. The victim’s parents and her grandparents and other relatives did not suspect anything against you because of your relationship to them both through marriage and as a Christian friend;
   
6. The offences were committed upon the victim who did not know that what you were doing were wrong until about 3 years later when her mother gave her some motherly advice on the bad things such as raped, older boys and men could do to girls; and
   
7. These offences were committed in the victim’s grandparents house were you were housed for sometime after you had either sold of or leased out your own and had no where to stay.
   

I find that, these facts operate against you. In addition to that, you pleaded not guilty and that necessitated the State calling witnesses to prove the charges against you. This saw the victim come into court to be forced to relive the memories of the offences you committed against her. Your denial also meant that, the State had to incur substantial expenses to establish the case against you. After all of that, you now appear to have accepted the guilty verdict and accepted responsibility for the offences. This is according to the pre-sentencing report from the Probation Services. That report also states that you tried to resolve the matter out of court by paying compensation but you were not given the opportunity to do so before being arrested and brought to Court. Further, the pre-sentencing report states that you have not expressed any remorse for the wrongs you have committed against the victim, her parents and her relatives, who are your friends. Given these and other factors, the pre-sentencing report states that your are not suitable for "probation supervision."

A further factor against you is that, the kind of offences you committed are on the increase. In some cases, actual unlawful carnal knowledge are committed. Just recently in may this year at Wewak in the case of The State v. Joseph Minjihau (unreported judgement) N2243, I sentenced an elderly married man with children to 5 years imprisonment in hard labour. His offence was committing unlawful carnal knowledge of a girl under the age of 16 years contrary to s.216 of the Criminal Code, where the maximum prescribed penalty is 5 years imprisonment. In so doing, I noted that such offences were on the increase and that stiffer penalties were now called for to deter other would be offenders from offending.

From your lawyer’s submission, I find there are only two factors in your favour or in your mitigation. Firstly, you have no prior conviction. This means you have not been in trouble with the law before. The offences you committed in this case are your first and this is the first time you have been charged with a criminal offence and has been found guilty. Secondly, there is no evidence of you conducts resulting in any physical harm. This is however, not the same to say that there is no evidence that the victim will suffer no harm. Numerous sexual and other violent offence cases clearly show that, victims of such offences continue to suffer on going psychological problems. In countries like Australia and elsewhere, there are readily available appropriate medical services to assist victims to overcome such problems. But the situation is not the same here. Such specialist medical services are almost non-existent. I made a brief reference to that in The State v. Peter Yawoma (Unreported judgement) N2032. This means victims of such offences are left with no assistance at all. So the fact that the victim in this case suffered no physical harm does not necessarily operate in your favour.

I note your personal and family backgrounds and the impact any sentence may have on your family as submitted by your lawyer. In particular, I note that your family maybe adversely affected if you are sent to prison. There is no disputed even according to your own submissions that the offences you committed require imprisonment for a term as of your punishment. Even if that were not the case, whatever happens to your family is a direct consequence of your own conduct. As such, whatever effects any sentence may have on your family is of no consequence when it comes to determining an appropriate sentence for you.

Noting all the above factors both for and against you, your lawyer argues for a sentence between 5 and 6 years imprisonment. In so doing, reliance is placed on the case of The State v. Thomas Dika Guta (unreported judgement) N841. That was a case of attempted unlawful carnal knowledge of a girl aged three years old. The victim had been watching TV at a neighbour’s house when she was abducted and raped by the prisoner and abandoned the next day at a swamp. She sustained what the Court described as horrendous injuries. The medical evidence described the injuries as a "torn perineum. The tear was raggered (Sic) and 10 centimetre’s deep. The tissues separating the vagina from the anus were torn and this created one bleeding orifice (hole) measuring 10 centimetres deep." She also suffered some other bruised injuries as well. A sentence of 7 and half years was imposed.

Your lawyer also referred to my judgement in the case of The State v. Ottom Masa (unreported judgement) N2021. In that case, the prisoner was charged with one count of attempted rape of a 3 years 4 months old girl. The prisoner was the victim’s paternal uncle. He had taken the victim out of her parents’ house where she was sleeping. He attempted to forcefully have sexual intercourse with the victim but was not able to succeed because of the tender age of the victim. The victim suffered some lacerations and bruises. I imposed a sentence of 6 years imprisonment because of the prisoner’s guilty plea and being a first time offender. It was also reflective of the fact that he expressed remorse over his conduct.

Your lawyer also referred to my judgement in the case of The State v. Ottom Masa (unreported judgement) N2021. In that case, the prisoner was charged with one count of attempted rape of a 3 years 4 months old girl. The prisoner was the victim’s paternal uncle. He had taken the victim out of her parent’s house where she was sleeping. He attempted to forcefully have sexual intercourse with the victim but was not able to succeed because of the tender age of the victim. The victim suffered some lacerations and bruises. I imposed a sentence of 6 years imprisonment because of the prisoner’s guilty plea and being a first time offender. It was also reflective of the fact that he expressed remorse over his conduct.

The State on the other hand argues that a stronger deterrent sentence should be imposed against you because the kind of offences you committed are on the increase and are prevalent offences. It also urged me to note that you have not been remorseful over your conduct. This submission is supported by the pre-sentencing report.

The first case relied on by your lawyer was decided on the 27th of March 1990. Almost 12 years have now lapsed since that time. The second case was decided on the 20th of December 2000. A period of more than one year has now lapsed. As I already said, these kinds of serious crimes against children are on the increase. That is demonstrative of the past sentences not deterring other would be offenders from offending. It therefore calls for a higher or stiffer sentence to correspond with the prevalence of the offence. In the Ottom Masa (supra) case, I referred to the judgement of Brunton AJ., as he then was in The State v. Thomas Pipon [1988-89] PNGLR 179, where His Honour said the: "Protection of the young and deterring others from molesting them in this way should be paramount." For these reasons I accept the State’s submission that the offences you committed are serious, they are prevalent and as such a stiffer penalty is called for. This is to both punish and to deter you and any other person that may be inclined toward committing such offences against young tender aged children.

The factors in your favour or mitigation are far out weighed by your not guilty plea, no expression of remorse, committing the offence in circumstances that amounted to a breach of trust and committing more than one offence over a period of time. The question then is what is the appropriate sentence or punishment for you?

The offence of attempted unlawful carnal of a girl under the age of 10 is defined and the penalty for it is prescribed by section 215 of the Criminal Code. It attracts a penalty of 14 years imprisonment. This is subject to the sentencing discretion vest in a Court under s.19 of the Code.

The other offence of indecent treatment of a girl under the age of 16 is defined and its penalty is prescribed by s.217 of the Code. It attracts a penalty of not more than 5 years if the victim is under the age of 12. The victim in this case was 5 years old at the time of the offence and is now 9 years old. Hence, the penalty you face is up to a term of 5 years imprisonment.

If it were not for you having no prior conviction and there being no physical injuries to the victim, I would impose the maximum sentences prescribed. However, the sentence I propose against you does take into account those factors and the factors against you particularly that, you have been found guilty and convicted after a trial. It also reflects the fact that you committed the offence in breach of a trust placed in you both by the victim and her parents and other relatives.

Our country is one of extended friends and relations. There is a long and bigger ring of trust and confidence. Hence, as was in this case, there is usually no expectation that such crimes could be committed against innocent and very young and defenceless children such as the victim in this case. There is already insecurity outside the family and friends circles. To commit a crime within such circles, I consider is very serious and the sentences for offences committed in such settings should be severe to send a strong message that these kinds of conduct are unacceptable in our society. Society exists to protect the young children or people of today so that they can carry the nation through in the next generation.

Further you claim to be a Christian. You were in fact engaged in singing God’s songs and teaching the victim and other children God’s songs. You even read to them from the Bible. Yet your conduct was completely contrary to what the Bible teaches. Jesus Christ, the person behind Christianity taught as is recorded in Mathew 19:13-15 and the other Gospels, how his followers should treat children. He told them not to chase away children from going to Him. In fact he said, unless a person becomes like a child he will not inherit the Kingdom of the Heavens: Mathew 18:3. So children have a special place as far as God and Christianity are concerned. Jesus Christ also taught that every other person is your neighbour in the Good Samaritan story recorded in the book of Luke 10:25-37. This means in my view that, it does not matter whether a person is ones own child or a total stranger. He is your neighbour or relation, so you need to care or him or her as you do for your own.

Our nation is built on the Christian principles as well as the good traditional customs and values of caring for the old and the young and not abusing them. This is clearly stated in the preamble of our country’s Constitution in these terms:

"WE, THE PEOPLE OF PAPUA NEW GUINEA—

• united in one nation
• pay homage to the memory of our ancestors—the source of our strength and origin of our combined heritage
• acknowledge the worthy customs and traditional wisdom of our people—which have come down to us from generation to generation
• pledge ourselves to guard and pass on to those who come after us our noble traditions and the Christian principles that are ours now.
  

By authority of our inherent right as ancient, free and independent peoples

WE, THE PEOPLE, do now establish this sovereign nation and declare ourselves, under the guiding hand of God, to be the Independent State of Papua New Guinea."

(Emphasis supplied)

Since independence there has been in my view an eroding away of our true traditional as well as Christian principles. The number of lawlessness has increased to such a level that it is crippling the nation today. Christians should be in the forefront of upholding respect and obedience to the laws of our country for this is a Christian duty in addition to being the duty of every citizen to uphold our laws in all aspects of our lives. In my view therefore, Christians should never ever be in court for breaking the law. For they should know that breaking the laws of our land is not only a crime but also a sin against God. Under our laws they may be punished by a short term of imprisonment. But God will punish them with death as Romans chapter 6 verse 23 says, unless of course they make their relationship right first with their fellow human and then with God.

Now returning to the laws of the land, it is settled law that the maximum penalty for any offence should be left for the worse kind of the offence under consideration. Both you and the State accept the offences you committed are serious. But there is no strong argument from the State that these are worse cases deserving the prescribed maximum penalties. Noting all the factors against you as well as the factors in your favour I consider a sentence of 8 years appropriate for the offence under section 215 for attempted unlawful carnal knowledge. As for the offence under s.217, I consider a sentence of 3 years appropriate.

The final question to resolved then is, whether or not the sentences should be made cumulative. Your lawyer argues for a concurrent term. In support of that argument, your lawyer says the offences involved the same parties and were committed at about the same time and place. On the other hand, the State argues that, the sentences should be made cumulative because, although the same parties were involved, they were two different offences committed at different times and places over a period of time. The offences were therefore, not committed in one transaction.

The law on this question is very clear. I discussed the relevant principles in The State v. James Gurave Guba (unreported judgement) N2020 as are set out in the case of The Acting Public Prosecutor v. Haha [1981] PNGLR 20 and Public Prosecutor v. Kerua & Ors [1985] PNGLR 85. These principles in summary are that:

1. The National Court has a discretion whether or not to make a sentence cumulative or not;
2. An exercise of that discretion is to be guided by well-known principles;
3. The principles are:
   1. the "one transaction rule:" where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent;
   2. where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable. For example, burglary and violence to the householder, or assault plus escaping from custody, or sexual assaults on different victims; and.
   100. the "totality rule or principle:" when the sentencer has arrived at appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total.
        

In your case I find that although the same parties being you, the offender and the victim, being the victim of both crimes were involved, the offences were not committed on the same day, in the course of committing the other. In other words I find that, you did not attempt to commit unlawful carnal knowledge of the victim and in the process committed the act of indecent treatment of the victim in the same transaction at the same time or immediately one after the other. Instead the facts are that the offences were committed on different occasion in different places and at different times and or dates within the period 1st March to 31st September 1997. That being the case, it is appropriate in my view to make the sentences cumulative.

The cumulative effect of the two sentences of 8 years and 3 years is 11 years. I therefore have to consider whether this is just and appropriate under the totality principle.

In The State v. James Gurave Guba (supra) case, I decided not to vary the sentences after considering the totality principal. That was on the basis that, the offences were committed in circumstances that were serious and that if it were not for a plea bargain, the prisoner could have received a much higher sentence. More recently I made the sentences cumulative in the case of The State v. Kenny Reuben Irowen (unreported judgement) N2239 for the same reasons and to serve as a deterrence for the ever prevalent crime of wife beating.

In your case, you a man of good health and had absolutely no reason whatsoever to commit the offences against an innocent child who was defenceless. No case was made out has to how a cumulative sentence might be crushing against you or that it would be unjust and inappropriate. One of the offences carries a maximum of 14 years imprisonment for its penalty. The other carries 5 years as its maximum penalty. If those penalties were imposed you would have received a total of 19 years. The total of the sentence I consider appropriate adds to 11 years, which is 8 years less what you could have received.

In these circumstances, I do not consider it appropriate that the sentences should be varied. Accordingly, this Court orders that the sentences of 8 years for the offence of attempted unlawful carnal knowledge and 3 years for the offence of indecently dealing with the victim be served cumulatively. Out of that, the period of 1 year and 7 months up to now you have already spent in custody shall be deducted. That will leave you with a balance of 9 years 4 months yet to serve. This Court further orders that, you served that term in hard labour at the Bomana CIS. A warrant for your commitment in those terms shall be issued forthwith.
________________________________________________________________________

Lawyers for the State: Public Prosecutor

Lawyers for the Accused: Public Solicitor