State v Angup [2005] PGNC 126; N2830 (21 April 2005)

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CRIMINAL LAW—Sentence—Unlawful carnal knowledge of girl under 12 years—sexual penetration of child under 12 years—sexual penetration of a child under 16 years—Guilty plea—Offender with no prior convictions—Substantial age difference between prisoner and victim—prisoner aged 34—Offences committed in charged breach of trust situation—No expression of remorse—pattern of abuse over 6 years—A punitive and deterrent sentence called for—Sentence of 20 years imprisonment imposed—Criminal Code s229A, and 229B.

CRIMINAL LAW—offences committed before amendment to Criminal Code—charges laid after amendment to Criminal Code—considerations— Criminal Code s11—Interpretation Act s63—considerations.

The Defendant was convicted on a plea of guilty of 1 count of sexual touching of a child under 12 years in 1998, 1 count of sexual penetration of a child under 12 years in 1998 and 2 counts of sexual penetration of a child under 16 years, I in 2000 and one in 2003, on unspecified dates, all in breach of an existing relationship of trust. The charges arose out of a pattern of sexual abuse over a period of 6 years. The victim became pregnant and bore a son before age 16. Her schooling was terminated.

Although the offences occurred before the coming into operation of the Sexual Offences and Crimes Against Children Act 2002 the indictment was properly presented under s229A and s229B of the Criminal Code: s11 Criminal Code, s63 Interpretation Act, The State v Tom Gaia N544; Baza Tada Avona v State [1986] PNGLR 148; N2456 Kape Sulu v The State; N2778 The State v Dibol Petrus Kopal.

The maximum penalty to which the Defendant could be liable was the lesser of the penalties applicable before and after the amendments. Thus for the count of sexual touching of a child under 12 years, and the two counts of sexual penetration of a child under 16 years the penalty was 5 years maximum. For the count of sexual penetration of a child under the age of 12 years the penalty was life imprisonment:s11(2) Criminal Code.

The proper sentence for counts 1,3 and 4 was 4 years each: The State v Sottie Apusa [1988-89] PNGLR 170. The proper sentence for count 2, sexual penetration of a child under the age of 12 years, was 20 years considering the circumstances of aggravation and factors of aggravation: N2557 The State v Peter Lare; N2635 The State v Penias Mokkei (No.2); N2684 The State v Kemai Lomou.

32 years was an excessive total sentence applying the totality principle: Public Prosecutor v Konus Haha [1981] PNGLR 205 @ 214, Paul Mase & Kope Tom v The State [1991] PNGLR 88.

It was proper, as all charges arose out of a series of abuses with the same Defendant and victim, for the sentences to run concurrently: D.A. Thomas, Principles of Sentencing 2nd Ed.(1979) p.54. The effective sentence would therefore be 20 years IHL.

The Defendant, of Mindiwi Village, Bogia, was charged with four counts under Division IV 2A Sexual Offences Against Children, being 2 counts of sexual penetration contrary to s229A(1), 1 count of sexual penetration contrary to s229A(2) and one count of sexual touching contrary to s229B of the Criminal Code. On arraignment each count was put separately to the accused followed by the short facts of that charge and the plea taken for that charge before moving on to the next charge. Initially the Defendant pleaded "it’s not true’ to count 1 and ‘it’s true’ to counts 2, 3 and 4. After a short adjournment and a conference by the Defendant with counsel I was asked to re-arraign the Defendant on count 1, which I did, and he then pleaded ‘it is true’ to that charge also. After reading the depositions I confirmed the pleas of guilty and entered a conviction in respect of each of them. I note that in respect of his pleas they were qualified in that the Defendant said "I did not do it on my own wish, it was the girl herself who was playing with my penis" and "that is true she usually removed her laplap and showed me her private parts." Prior to confirming the pleas I put to counsel and he agreed that those comments did not disclose any possible defence to the charges.

The short facts on which the Defendant pleaded guilty are that firstly that he is married to the mother of his step daughter. On an unknown date in 1998 he touched the vagina of the victim, his step daughter, for sexual purposes. The victim was then a child under the age of 12 years and there was a relationship of trust. Secondly, on another day in 1998 the Defendant had sexual intercourse by penetrating the vagina of the victim with his penis whilst the victim was still under the age of 12 years and there was an existing relationship of trust. Thirdly, on an unknown date in 2000 the Defendant sexually penetrated the victim when she was a child under the age of 16 years in breach of a relationship of trust and fourthly that on an unknown date in 2003 the Defendant sexually penetrated the victim, still under the age of 16 years, in breach of a relationship of trust.

All of the offences took place at the Defendant’s family home at Watwat Village, Bitapaka LLG Kokopo.

On his allocutus the Defendant said he has a cocoa fermentary and his own children are very small. He has a block of cocoa which he recently planted and now that he is in custody it is overgrown. There is no one to help the family. He has a sister but she doesn’t help, he is the only one to support the family financially. There is no one else to buy clothes for the children, he is the only one. His brothers – in – law are working but do not help his family. His wife came to visit him in custody and told him the hardships she is facing. He told her she could come and tell the court. His wife’s family does not let her touch their crops.

Mr Peter submitted that the Defendant is from Bogia and lives at Watwat Plantation, where the offences were committed. His wife had 4 children from her previous marriage of whom 1 is the victim. She married the Defendant in 1992 and has had another 5 children from the Defendant, making a total of 9. The Defendant has been employed as a labourer at the plantation since 1994 and makes K30-K50. He has grade 1 education only. The Defendant has no prior convictions; he pleaded guilty and saved the victim from coming to court. The Defendant is aged about 34 years.

Mr Rangan submitted that this is a serious case and I should consider imposing a term of imprisonment in the order of 17 years or more. He submitted that in addition to the charged circumstances of aggravation there were aggravating factors, such as that the victim’s education was cut short by the Defendant’s insistence that the victim follow him to the garden rather than go to school. The Defendant made the victim pregnant from which a child has been born. Both mother and child will carry a stigma and be made fun of by the community. The victim was made pregnant when she was too young to look after the child. The age difference between victim and Defendant is 19 years; he would have been 28 when he started abusing the victim. The abuse persisted over a long period of time.

The depositions confirm the issues of fact contained in Mr. Rangan’s submissions. Further in the victim’s statement I note that one act of sexual intercourse took place after the initial complaint had been made to the police.

The first issue is that the first three of the charges arise out of facts which occurred prior to the coming into force of the amendments to the Criminal Code contained in the Sexual Offences and Crimes against Children Act which came into operation on 10th April 2003[1] and the fourth may have occurred at that time.

(a) the act or omission constituted an offence under the law in force when it occurred; and

(b) doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.

(2) If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorized by the former law, or to any greater extent than is authorized by the latter law.

S. 63 of the Interpretation Act preserves an offence committed under a repealed provision in the following terms:

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of the repealed provision, or anything duly done or suffered under the repealed provision; or

(d) affect any penalty, forfeiture, or punishment incurred in respect of an offence committed against the repealed provision; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the repeal had not been made.

s.11 of the Criminal Code and s.63 of the Interpretation Act were discussed by this Court in The State v Tom Gaia[2] on the question of changes to both the offence and penalty and in relation to a change of penalty only they were discussed in the Supreme court case of Baza Tadu Avona v State[3].

It is a threshold question to determine whether the charges should have been laid under the forms which they took before amendment, preserved by s.63 of the Interpretation Act, or the new provisions applied in conjunction with s.11 of the Criminal Code. And in order to determine that issue, the Supreme Court said in Avona’s Case, I must decide if the provision is an amending one or a repealing one, as s.63 of the Interpretation Act applies only to the latter. To do that one looks at the substance rather than the form of the provision, the relevant provision being the Criminal Code (Sexual Offences and Crimes against Children) Act 2002.

The following short table sets out the relationship between the old and new provisions:

Old Provision			New Provision
Section No	Effect	Maximum sentence	Section No	Effect	Maximum sentence
S217(2) and (3)	Indecent dealing with a girl under the age of 12 years	5 years	S229B(4) & (5)	Touching the sexual parts of a child under the age of 12 years.	12 years
S213(1)	Unlawful carnal knowledge of a girl under the age of 12 years.	Life	S229A (2) & (3)	(2)Sexual penetration of a child under the age of 12 (3)in breach of a relationship of trust	Life
S216	Has or attempts to have unlawful carnal knowledge of a girl under the age of 16	5 years	S229A(1) & (3)	Sexual penetration of a child under the age of 16 (3) in breach of a relationship of trust.	Life

It can be seen from the table that the following changes have been made to the respective offences:

The repeal and replacement provisions of the amending Act do not bring the repealed offences to an end. The acts specified as constituting the offences were offences before amendment and are still offences. I find that the practical affect of the amending Act is to amend rather than repeal, and that the Defendant is properly charged under the new provisions. This result accords with the views of Manahu AJ in respect of s229A[4] and is consistent with the view I have expressed in respect of the amended s347[5].

Returning then to the application of s11(2) of the Criminal Code, in Avona the Court said for ease of obtaining the true meaning of s.11(2) of the Criminal Code one can add the words "whichever is the lesser" to the end of the section. Applying s11(2) of the Criminal Code so that the Defendant is liable to the lesser of the former and current sentences, the maximum sentence in respect of each count in this case is:

I can find no authority to assist me with the issue of the offence which occurred in 2003, for which a precise date is not given and which may have occurred before or after the coming into operation of the amendments. I think that in the circumstances the proper course is to treat that offence as having occurred at the time which would have attracted the lower of the maximum penalties, as I have shown above.

Dealing first with Count one, the sexual touching (formerly indecent dealing, s217(2)) some sentencing guidelines were suggested under the repealed s216 (which had the same maximum penalty of 5 years as s217(2)) in the case of State v Sottie Apusa[6] which from the head note were as follows:

"The following guidelines may be taken as appropriate to sentencing for the offence of unlawful carnal knowledge of a girl under 16 years contrary to s 216(a) of the Criminal Code (Ch No 262) for which the maximum prescribed penalty is five years imprisonment:

(1) a lower range from discharge up to 20 months, for cases where the accused and the victim are of similar age, where the accused is a young offender and the victim between 14 and 16 years and where the offender is disabled, or physically or mentally handicapped and the victim a consenting party;

(2) a middle range from 20 months to 40 months, for cases where the accused is a mature man and there are no circumstances of aggravation;

(3) an upper range from 40 months to the maximum of five years, for cases where there are circumstances of aggravation, such as, cases where there is a relationship of trust and dependency between the accused and the victim, for example, teacher and pupil, medical carer and patient, and step-father/uncle relationships."

A number of cases have been reported on sentencing under s229A .In the case of The State v Peter Lare[7], on a guilty plea, a sentence of 20 years was imposed where the victim was less than 12 yrs (actually 10 years) and the defendant 40 yrs. The child was an adopted daughter and dependant on the defendant for her upkeep, the fact of which the defendant would often remind her. The defendant had two wives and a number of children. The victim was infected with a venereal disease by the defendant. There were multiple sexual acts of various types over a period of almost 4 years. There was a serious breach of trust. There was no genuine remorse. The court considered the aggravating factors outweighed the mitigating factors.

In the case of State v Pennias Mokei No.2[8] the child was a little over 13 yrs. The age of the defendant was 33 years as stated in the judgment on verdict. The defendant was found guilty after a trial. There was no consent by the child. No long term physical injury was caused to the child. It was an isolated incident. The defendant was regarded as an uncle and thus there was a breach of trust. There was an expression of remorse but no meaningful steps taken to demonstrate its genuineness. A sentence of 15 years was imposed.

In the case of The State v Eddie Trosty[9] the victim was 13 or 14 years old, the defendant 21 or 22 years old. The offence was committed a number of times with the victim’s consent. The defendant claimed the victim was his girlfriend. First offence. Sentence of 6 years imposed.

In the case of The State v Kemai Lumou[10] the victim was 14 and the defendant 22 years. Conviction after trial. The victim was a very close relative of the defendant. A bush knife and physical force were used to rape the victim although charged under s229A. The offence was committed while the victim was on her way to school. No genuine remorse, no compensation payment. First offence. Sentence of 17 years imposed.

In relation to the new s229B only one case has been reported, The State v Kiddi Sorari[11]. The catchword phrases read:

Unlawful and indecent dealing with girl under 16 years—Abduction of victim and forcefully removing her clothes—Use of weapons—Rubbing fingers on victim's vagina—Minor grazes under the clitoris of the vagina—Guilty plea by first time young offender—Recent increase on penalty—Meaning of—Past sentences not deterring—Need to reflect that—5 years sentence imposed—Criminal Code s229B(1) and (4).

In that case the victim was aged 6 and the defendant 14 years. The case is of no assistance to the presence circumstances.

Cannings J set out in State v Penias Mokkie (No.2)[12] a useful summary of issues to take into consideration in sentencing under s229A, which I adopt, as follows:

I only add to that list "What was the age of the defendant?" because the age of the defendant can be a factor in sentencing. If the defendant is young it can be a factor in his favour[13]. If the victim and the defendant are both in their teens it can be a neutral or favourable factor for the defendant[14]. But if there is a large age difference between the age of the victim and the age of an older defendant it is usually regarded as being a factor against the defendant[15] because of the influence a mature person can have on a younger person and the expectation of society that a mature person will act more responsibly; and in sexual offences that an attack by an adult on a child is more abhorrent both to the child and society.

As the Sexual Offences and Crimes Against Children Act introduced a completely new regime with respect to sentencing, I am faced with a transitory set of circumstances in sentencing in respect of counts 1, 3 and 4 and I propose to follow the guidelines in The State v Sottie Apusa. In respect of each of those charges I sentence the Defendant to a period of 4 years IHL.

With respect to count two I propose to approach the determination of the sentence on the basis of the new principles for sentencing in such cases. The victim in this case has faired very badly. Living with the secret that her step father was abusing her, over a period of some 6 years, becoming pregnant by him, bearing a child when she is a child herself, losing her childhood to parenthood and losing the chance of getting some education. This is a very serious breach of trust by the Defendant when he stood in loco parentis to the victim. I take into account what the Defendant has said on his allocutus and what his counsel has submitted. However I am of the view that the aggravating factors in this case far outweigh the mitigating factors.

In other cases on this circuit, not involving sexual offences, I have seen reference to men turning step daughters into second wives at very young ages. This is a gross breach of the child’s trust by the parent and the sentence imposed in this case must have a general deterrent factor as well as punishment for the offence.

Addressing the issues in the numbered paragraphs above (from State v Penias Mokkie(No.2)):

This is case is quite as serious as the case of The State v PeterLare[16] and in respect of count two I sentence the Defendant to a term of 20 years.

"Nevertheless we think that this Court must consider the total or aggregate sentence and decide whether it is just and appropriate.

'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate"...The principle applies to all situations in which an offender may become subject to more than one sentence: where sentences are passed on different counts in an indictment or on different indictments, where the offender is subject to a suspended sentence or probation order, where he is already serving a sentence of imprisonment or makes appearances in different courts within a short space of time. In all such cases "the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive." ...'

These observations were approved and applied in Paul Mase and Kope Lore John v The State[18].

Considering the total sentence, in comparison with other offences for which the maximum sentence is life imprisonment, it seems to me that a total of 32 years would be excess. Although the offences arose out of separate acts at separate times, they also arose out of the same pattern of abuse.

In State v Sottie Apusa Brunton AJ referred to D. A. Thomas; Principles of Sentencing as follows:

Both counsel have submitted that the six separate offences should be treated as a single complex. I was referred to D A Thomas’ Principles of Sentencing, 2nd ed (1979) at 54. The author there says:

"The concept of ‘single transaction’ may be held to cover a sequence of offences involving a repetition of the same behaviour towards the same victim, such as a series of sexual offences with the same partner."

Accordingly, the sentences imposed for each of the offences should be served concurrently. The sentences will therefore be served concurrently giving the effect that the Defendant will spent the period of 20 years in hard labour less time spent in pre trial custody. I trust this course will also have the effect of removing any suspicion that the Defendant has been punished twice for counts 1, 3 and 4 by taking into account the pattern of abuse over 6 years when formulating the sentence for count 2.

Lawyers for the State : Public Prosecutor
Lawyers for the Defendant : Public Solicitor

^[1] Gazette G45/02
^[2] (1986) N544 per Kapi DCJ
^[3] [1986] PNGLR 148 Kidu CJ Amet, Cory, Los and Wilson JJ.
^[4] N2456 Kape Sulu v The State
^[5] N2778 State v Dibol Petrus Kopal
^[6] [1988-89] PNGLR 170 Brunton AJ
^[7] N2557 (20/5/2004) Kandakasi J
^[8] N2635 (26/8/2004) Cannings J
^[9] N2681 (10/9/2004) Kandakasi J
^[10] N2684 (23/9/04) Kandakasi J
^[11] N2553 Kandakasi J
^[12] supra footnote 8
^[13] John Aubuka v State [1987] PNGLR 267 Bredmeyer, Los and Hinchliffe JJ see 7(b) in the headnote.
^[14]N2336 The State v Kenneth Peter (/11/4/2002) Injia DCJ
^[15] N1849 The State v Nivi Araba (22/4/99) Sakora J; N2278 State v Moke Lepe (No.2) (22/7/2002) Kandakasi J; N2430 The State v Lohou Mau (22/7/03) Davani J.
^[16] supra
^[17] [1981] PNGLR 205@214 per Kidu cJ, Andrew J and Pratt J
^[18] [1991] PNGLR 88 per Kidu CJ Amet and Brown JJ.

National Court of Papua New Guinea

State v Angup [2005] PGNC 126; N2830 (21 April 2005)