State v Dala [2006] PGNC 110; CR 311 of 2005 (19 December 2006)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 311 OF 2005

THE STATE

V

RAPHAEL DALA

Kimbe: Cannings J
2006: 17 October
13, 19 December

SENTENCE

CRIMINAL LAW – Criminal Code, Division IV.2A, Sexual Offences Against Children – Section 229E, abuse of trust, authority or dependency – sentence on plea of guilty – 5 years.

A mature-aged man pleaded guilty to sexually penetrating his 16-year old stepdaughter. He had sex with her in the middle of the day, in their house, while his wife – the complainant’s biological mother – was absent. He caused no physical injuries.

Held:

(1) The maximum penalty for this offence is 15 years, so the starting point should be seven years, six months.

(2) Mitigating factors are: offender acted alone; no weapon or violence; no sexually transmitted disease; isolated incident; cooperated with police; no further trouble; pleaded guilty; expressed remorse; first offender; family do not want heavy sentence and high degree of forgiveness.

(3) Aggravating factors are: large age gap; victim had only just turned 16; serious breach of trust; did not give himself up; not a youthful offender.

(4) A sentence of five years was imposed, the balance of which was suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Andrew Amid CR 1077/2004, 23.02.05
The State v Joe Putubu CR No 1042 of 2006, 23.08.06
The State v John Ritsi Kutetoa (2005) N2814
The State v Paul Nelson (2005) N2844
Tom Longman Yaul v The State (2005) SC803

PLEA

A man pleaded guilty to abuse of trust and the following reasons for sentence were given.

Counsel
F Popeu, for the State
O Oiveka, for the accused

INTRODUCTION

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to an abuse of trust under Section 229E (abuse of trust, authority or dependency) of the Criminal Code. He faced the following indictment:

Raphael Dala of Morokea, West New Britain Province, stands charged that he on the 13th day of January 2005 at Morokea ... engaged in an act of sexual penetration with [the complainant], a child between the age of 16 and 18 years, whilst there was an existing relationship of trust, authority and dependency.

CONVICTION

2. The offender pleaded guilty to the following facts:

• The complainant, a 16-year-old girl, is his stepdaughter. She is the biological daughter of his wife.
  
• The offence was committed between 12 noon and 1.00 pm at his wife’s block at Morokea. His wife was absent and he was in the house with the complainant.
  
• The complainant went into her mother’s room, looking for a radio. He followed her into the room, closed the door, approached her, removed her clothes and his clothes and had sexual intercourse with her.
  
• There was an existing relationship of trust, authority and dependency as he was the complainant’s stepfather.
  

3. The offender said that the allegations were true except that the complainant did not go into the room first. He went into the room first, he said.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

After this incident happened I was separated from my family as they stayed with other people who did not treat them properly. The family faced difficulty paying the children’s school fees. Also their security was at risk. It is not safe for them to stay by themselves. I apologise to this court and to my wife and children.

OTHER MATTERS OF FACT

6. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (including the plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

Depositions

• The offender made admissions to the police early in the investigation, claiming that sexual penetration was consensual and had been instigated by the complainant.
  

Allocutus

• He expressed remorse.
  

Matters raised by defence counsel

• No physical harm was done to the victim.
  

PRE-SENTENCE REPORT

7. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received a pre-sentence report under Section 13(2) of the Probation Act for the prisoner. The report, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, is summarised below.

Raphael Dala: 44-year-old male.

Background: from Morokea village, near Kimbe.

Marital status: He is married to the complainant’s mother, who is from East New Britain. This is his second marriage and his wife’s third marriage. They have in total four children, including the complainant, from their previous marriages and they look after them together. Their marriage was healthy and stable from 1991 to the time of commission of the offence.

Education: completed Grade 9, Kimbe High School, 1983.

Work: has had a couple of jobs before; is currently self-supporting.

Financial status: earns money from selling cocoa and fish.

Health: OK.

Plans: wants to stay with his family and build a new house for them.

Family attitude to crime – both the complainant and her mother were interviewed. The complainant indicates that she agreed reluctantly to have sex with here stepfather. He forced her to do it, but did not use anything to threaten her. She is confused and ashamed about what has happened. The complainant’s mother (the offender’s wife) spoke highly of her husband in that, before the offence was committed, they had a good marriage and he has been a good provider for their children. She feels that her husband abused his authority over their daughter to satisfy himself. Despite that, she has forgiven him and accepts him as her husband. Some of her relatives have an expectation that compensation should be paid.

Community attitude to crime: the offender is involved in the Kimbe parish of the Catholic Church, where he is highly regarded; he also has a good reputation in the Morokea village community.

Recommendation: suitable candidate for probation supervision.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Oiveka submitted that the pre-sentence report was an encouraging one. The offender is well regarded in the community and even in his family. His wife and stepdaughter and other family members depend on him as a provider and as security. The sentence should not be a lengthy one and it should be a non-custodial one, Mr Oiveka submitted.

SUBMISSIONS BY THE STATE

9. Mr Popeu, for the State, stressed that the offence carries a maximum term of 15 years. Though physical violence was not involved, there was a serious abuse of trust. A sentence of at least five years should be imposed and it would be inappropriate to suspend all of it, Mr Popeu submitted.

DECISION MAKING PROCESS

10. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what sentences have been imposed in other cases?
  
• step 4: what should the head sentence be?
  
• step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

11. The indictment was presented under Section 229E (abuse of trust, authority or dependency) of the Criminal Code, which states:

(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years.

(2) It is not a defence of a charge under this section that the child consented unless, at the time of the alleged offence, the accused believed on reasonable grounds that the child was aged 18 years or older.

12. There was an existing relationship of trust, authority and dependency, as defined by Section 6A of the Criminal Code, which states:

(1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where—

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care and control.

13. The offender is the complainant’s step-parent, so Section 6A(2)(a) applied. The maximum penalty is therefore 15 years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

14. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a ‘starting point’ for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. The actual sentence imposed can be above, below or the same as the starting point, depending on whether the aggravating factors outweigh the mitigating factors (resulting in a sentence above the starting point) or the mitigating factors outweigh the aggravating factors (resulting in a sentence below the starting point) or the mitigating and aggravating factors are balanced (resulting in the starting point being the sentence).

15. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of seven years, six months as the starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED IN OTHER CASES?

16. There are no reported cases of sentencing for offences under Section 229E and the only unreported case of which I am aware is The State v Andrew Amid CR 1077/2004, 23.02.05. In that case Lay J sentenced a 38-year old married man in Buka to three years imprisonment. The offender had pleaded guilty to two counts of sexually touching a child between the ages of 16 and 18 years with whom he had an existing relationship of trust, his stepdaughter, contrary to Section 229E.

STEP 4: WHAT IS THE HEAD SENTENCE?

17. Despite the shortage of precedents, I consider that the sort of considerations to take into account when determining a head sentence are fairly similar for all sexual offences involving children. I will now set out those considerations, which are based on the matters I set out in two sexual touching cases (offences under Section 229B) decided recently in Kimbe and Buka respectively: The State v Paul Nelson (2005) N2844 and The State v Joe Putubu CR No 1042 of 2006, 23.08.06.

18. The relevant considerations are listed below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor.

19. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Is there only a small age difference between the offender and the victim? No – at the time of the offence, the offender was aged 42 and the complainant 16; an age gap of 26 years.

2. Is the victim not far under the age of 18 years? No, she had only just turned 16 years old.

3. Was there consent? This is a neutral factor. The offender says it was consensual and the victim suggests it may have been but I am not prepared to give the offender the full benefit of the doubt.

4. Was there only one offender? Yes.

5. Did the offender not use a threatening weapon and not use aggravated physical violence? Yes.

6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim? Yes.

7. Was the relationship of trust, dependency or authority a distant one? No – the offender was the complainant’s stepfather. I indicated in The State v John Ritsi Kutetoa (2005) N2814 that a step-father is in the same relationship of trust towards his children as a biological father. In that case a 42-year-old married man was sentenced to 17 years imprisonment after pleading guilty to one count of engaging in an act of sexual penetration with his 10 year-old stepdaughter, contrary to Section 229A(3) of the Criminal Code. The offender was drunk and the offence was tantamount to rape. He was, essentially, her father. The offender’s actions undermined one of the most precious relationships known to humankind: the bond between a father and his daughter. The same principle applies here. This is a very serious aggravating factor.

8. Was it an isolated incident? Yes.

9. Did the offender give himself up after the incident? No. He was reported to the police.

10. Did the offender cooperate with the police in their investigations? Yes.

11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did? Neutral. There has been no formal reconciliation but according to the pre-sentence report the offender has gone a long way towards making peace with the victim – his stepdaughter – and with his wife.

12. Has the offender not caused further trouble to the complainant since the incident? Yes.

13. Has the offender pleaded guilty? Yes.

14. Has the offender genuinely expressed remorse? Yes.

15. Is this his first offence? Yes.

16. Can the offender be regarded as a youthful offender? No.

17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes – it seems that to some extent the problem has been sorted out within the family. The offender’s wife and his stepdaughter do not want to see the offender go to jail. They depend on him to provide for them. They consider that he has brought great shame to himself and to the family for what he has done but at the end of the day they do not want him to go to jail. There is a high degree of forgiveness.

20. To recap, mitigating factors are:

• No 4 – offender acted alone;
• No 5 – no weapon or violence;
• No 6 – no sexually transmitted disease;
• No 8 – isolated incident;
• No 10 – co-operated with police;
• No 12 – no further trouble;
• No 13 – pleaded guilty;
• No 14 – expressed remorse;
• No 15 – first offender;
• No 17 – family do not want heavy sentence and high degree of forgiveness.
  

21. Aggravating factors are:

• No 1 – large age gap;
• No 2 – victim had only just turned 16;
• No 7 – serious breach of trust;
• No 9 – did not give himself up;
• No 16 – not a youthful offender.
  

22. The other factors (No 3, consent and No 11, reconciliation) are neutral.

23. After weighing all these factors and bearing in mind that there are ten mitigating factors compared to five aggravating factors, the head sentence should be below the starting point of seven years, six months. I impose a head sentence of five years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

24. The offender has already spent time in custody in connection with this offence and it is proper that that period be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, as shown in the table below:

TABLE 1: CALCULATION OF FINAL SENTENCE

Length of sentence imposed	5 years
Pre-sentence period to be deducted	2 months
Resultant length of sentence to be served	4 years, 10 months

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

25. This is an appropriate case in which to consider suspending the sentence in view of the reconciliation and forgiveness that has occurred within the family. However, strict conditions must be imposed and the matter must be kept under continuing scrutiny and review.

26. The sentence will be suspended on the following conditions:

1. must within six months after today open a bank account in Kimbe, styled as a trust account for his stepdaughter, and deposit into it the sum of K1,000.00, which money, to be regarded as compensation, shall be available for the sole and exclusive use of his stepdaughter upon her attaining the age of 18 years;

2. must within one month submit to counselling under the supervision of the Parish Priest of Kimbe Catholic Church or his delegate;

3. must reside at Morokea and nowhere else except with the written approval of the National Court;

4. must not leave West New Britain without the written approval of the National Court;

5. must perform at least six hours unpaid community work each week at Kimbe Catholic Church under the supervision of the Parish Priest;

6. must attend Kimbe Catholic Church every Sunday for service and worship and assist the church in its community activities under the supervision of the Parish Priest;

7. must report to the National Court Registry, Kimbe, every government pay-week Friday between 9.00 am and 3.00 pm and sign the register;

8. must not consume alcohol or drugs;

9. must keep the peace and be of good behaviour;

10. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of imposition of sentence;

11. the person responsible for filing the probation report will be the OIC, Community Based Corrections and Rehabilitation Service, Kimbe;

12. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

27. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender, who may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803, Supreme Court, Salika J, Mogish J, Cannings J.)

SENTENCE

28. Raphael Dala, having been convicted of the crime of abuse of trust, is sentenced as follows:

Length of sentence imposed	5 years
Pre-sentence period to be deducted	2 months
Resultant length of sentence to be served	4 years, 10 months
Amount of sentence suspended	4 years, 10 months, subject to conditions prescribed herein

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused