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State v Kilau [2006] PGNC 125; N3107 (13 October 2006)

N3107


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR. 417 OF 2006


THE STATE


v


MICHAEL KILAU


Finschhafen: Kirriwom J.
2006: 4 & 13 October


SENTENCE – Sexual penetration of child between 16 and 18 years of age – Existing relationship of Trust, Authority and dependency – Teacher and pupil – Several acts of sexual penetration – Pregnancy resulted – Expulsion from school – Plea of guilty – Circumstances of aggravation – Sentenced to 7 years imprisonment – Criminal Code, s.229E.


Cases cited:
The State v Sottie Apusa [1988-89] PNGLR 170
The State v James Yali [2006] N3014
The State v Thomas Tukaliu [2006] N3026


Counsel:
N. Miviri with J. Done, for the State
M. Mwawesi, for the Prisoners


DECISION ON SENTENCE


13 October, 2006


1. KIRRIWOM, J: Michael Kilau, a teacher by profession, comes from Manage village, Finschhafen District, Morobe Province. He appeared before me on Wednesday 4 October 2006, and pleaded guilty to sexually penetrating "AL", a minor between the age of 16 and 18 years of age, who was then in relation of trust, authority and dependency with him, contrary to section 229E of the Criminal Code.


2. The charge against Michael Kilau was that between December 2004 and January 2005 at Finschhafen he engaged in the act of sexual penetration of the victim "AL" a child between 16 and 18 years of age who was at the material time in relationship of trust authority and dependency with or to him.


3. According to the evidence before the Court the victim was born 21 August 1988. Evidence of her age is not disputed. She was therefore 16 years in December 2004 when she began having sexual relations with Michael Kilau. Michael Kilau admits having this affair with the victim commencing December 2004 with the victim and counts two occasions of sexual penetration. Victim says there were three occasions and she relates to the much latter incident of 8th or 9 April 2005 when the prisoner pulled her into the bushes between Bumase Primary School (where she goes to school and where the prisoner teaches) and the village of Mange and sexually penetrated her. Her evidence is that at 3 pm after school while all the children were sent home she was told to sweep the classroom. Michael Kilau also accompanied the students from Mange village and went with them. But instead of going home he hid in the bush on the roadside and waited for her. He grabbed her as she came close and pulled her into the bush and had sex with her.


4. The victim was then a Grade 8 student at Bumase Primary School and Michael Kilau was also one of her teachers. Not only was Michael Kilau her teacher, he was also a distant relative to the victim because they had a common ancestor. She was his second, third or fourth cousin. But she was definitely not a first cousin so for purpose of trust, authority and dependency under s. 6A of the Code, this law does not apply to their relationship. In some societies, marriages between second, third and fourth cousins are permitted.


5. The only relevant relationship between the prisoner and the victim for purposes of section 229E is that of a teacher and pupil. There is a special relationship between teacher and pupil that is created at the very moment the teacher took on that profession that the law places a particular significance to it because of the close attachment and the mutuality that binds the teacher and pupil. Section 6A of the Criminal Code describes this relationship in these terms:


"6A. Relationship of trust, authority or dependency.


(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 –

6. A teacher exercises enormous authority and influence over his or her pupil in so many ways both inside the classroom and outside on the playing field, school grounds, school picnics, excursions and other school activities that are conducted outdoor. The lower the pupil’s grade, the more dependent and vulnerable they are on their teachers’ authority. They look upon the teacher for guidance and support. From their teachers they fear punishment, they fear failure if they do not do well in class or if they upset their teacher in any way and from their teacher they expect pass in their grades. This is where a teenager like the victim in this case is at a very vulnerable position when a teacher like the prisoner makes sexual advances to her that she is not independently mature enough to make a valued and responsible decision without risking getting herself punished or given a fail mark in an exam, if she did not obey. She is in no position to say no or to refuse. To her the teacher is the key to the world beyond and she must obey him to reach that world outside. To everything she does, her teacher is the authority; the teacher knows what is right and what is wrong. She has been told to trust his teacher and not to question his authority. She is thus dependent on the teacher for her success in life beyond when she leaves school.


7. Teachers abusing this trust and authority imposed on them by their profession against the children they teach are not new phenomenon. In fact there is escalating trend of sexual abuses of young children in schools throughout Papua New Guinea that has plagued the education system, the law enforcement agencies and the courts for many years which necessitated this particular legislative enactment to curb this abuse. This is a prevalent offence. Teachers’ violation of this trust and authority against the children they are meant to teach and safeguard is an immeasurable loss to the parents who invest heavily on their children and want to give them good future by putting them to school. No parent sends his daughter to school only to be abused and impregnated and her whole life destroyed by somebody they trusted to look after her.


8. The law under section 229E is not only intended to punish the offender for sexually penetrating the child or morally corrupting her while being in the relationship of trust, authority and dependence with her, it is also intended to punish the offender for destroying the victim’s prospects of good education where the child is expelled from school or prospects of proper marriage where the victim becomes pregnant by such unprotected sexual acts and even where the victim is infected with sexually transmitted disease. These three scenarios could amount to circumstances of aggravation.


9. In the instant case, the prisoner not only defiled the victim by breaching this trust, authority and dependence he had with the victim; he has ruined her entire life. He made her pregnant, she has been expelled from school and her entire future is gone. Her prospects of good education and paid job given away and hope for happy marriage and stable family is also ruined when she must now whilst still a child herself, become a mother of her own child. A daughter having a child outside proper marriage is a nightmare that every parent dreads. All parents want to see either daughter’s hand given in proper lawful wedding which promises good future and grandchildren from healthy happy unions of happily married couples.


10. The prisoner in this case will not fulfil that expectation of the parents because not only that he is related to the victim and both her parents will be opposed to that view, he is already a married man of nine or ten years although without any children. He has brought this misery upon the victim which she will now live with for the rest of her life. She is now stigmatised as mother of a fatherless child and both their future is already a gloomy and unhappy one. The prisoner is now going to answer for his action in the criminal court although under the child Welfare Act he also has another responsibility over the upkeep and maintenance of this child he is responsible for through the victim. For the next sixteen years he will have to provide for his child as long as the mother is in need of such support and maintenance for the child from him.


11. This is a bad case. One can appreciate the parents’ feelings. Their expectations and plans for their daughter are now all shattered by an irresponsible behaviour of a relative who stood in position of authority and trust towards their daughter. They will now have to bear some of the new responsibility that their daughter must handle, prematurely forced upon her by the prisoner.


12. This offence attracts a maximum penalty of fifteen years. Section 229E provides:


"229E. Abuse of trust, authority or dependency.


(1) A person who engages in an act of sexual penetration of 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 reason able grounds that the child was aged 18 years or older."


13. Sentencing an offender under this section must maintain some harmony or consistency with section 229A, 229B and 229C although the seriousness of the offence under s.229A is higher than those offences created under sections 229B, 229C, 229D and 229E. Both sections 229D and 229E share the same threshold sentence of fifteen years. But section 229D provides a different offence of persistent sexual abuse of a child and makes no reference to the term ‘trust authority or dependency’ whereas the others do and prescribe specific maximum penalties here such relationship is identified and established by evidence. Subsection (3) of section 229A provides a maximum penalty of life imprisonment where there was existing relationship of ‘trust, authority or dependency’ between the victim and the offender, otherwise for sexual penetration of child under 16 simpliciter attracted a maximum of 25 years. On the offence of sexual touching of child under 16 years pursuant to section 229B the maximum sentence is 7 years imprisonment but where there was existing relationship of trust, responsibility or dependency the offender is liable to maximum term of 12 years imprisonment. And the same maximum penalty is provided for an offence of indecent act directed at a child under section 229C as provided under subsection (3).


14. There is not much authority on sentencing precedents of this offence where it was pursed independently from other offences. Usually this charge is joined with other offences such as rape, incest or even sexual penetration of minors or preferred in the alternative. Since the amendment this offence was given prominence because of the loophole in the law where an offender escaped conviction because the victim was over the age of 16 but below 18 years.


15. In The State v James Yali [2006] N3014 the accused escaped conviction for this offence because by definition of this term ‘trust, authority and dependence’ under s. 6A (2) the victim, although was the young sister of the accused’s de facto wife, and lived with the accused in the same house with her sister and him, there was no such relationship of trust, responsibility or dependence between her and the accused. That was the only reported case where the offence was specifically charged in the indictment and tried. However most reported cases where reference to the terms ‘trust responsibility and dependency’ arise are often involved as circumstances of aggravation under ss.229A, 229B and 299C where evidence establishes such relationship as defined under section 6A(2) of the Code.


16. In my view, sentences imposed in those cases may be used as guide only in cases where this offence is prosecuted separately such as the one before me. In The State v Thomas Tukaliu [2006] N2026 it was a case of sexual touching, an offence under section 229B of the Code. However the offence was aggravated by the fact that the victim was under 12 years old, she was actually 10 years at the time of the offence and secondly, she was the daughter of the prisoner’s brother of the same blood. She was actually his niece. There was therefore an existing relationship of trust authority and dependence between the prisoner and the victim at the time of the offence. He was sentenced to five years imprisonment.


17. The law has taken a very serous view of the breach of this special bond or relationship of trust authority or dependency between a father and step-daughter or uncle and niece because as Brunton AJ described in The State v Sottie Apusa [1988-89] PNGLR 170 at 172 "for the relationship between a step-father or "uncle" and a young girl may be one of complete confidence and love – and to break that bond sexually may not only subject the victim to psychological damage, but is a betrayal, a form of person treason."


18. And in the same page His Honour also makes the following observation on teacher – pupil relationship:


"...The relationship of teacher and pupil is an example. Parents put their trust in the school system when they send their children to school; they do not expect the teachers to sexually abuse their pupils. This factor is particularly relevant in those provinces of Papua New Guinea where girls have been held out of school because of traditional beliefs that schooling will disrupt a girl’s marriage prospects. Formal education is now well recognised as being a vital component in the on-going process of the liberation of women in the third World, and the criminal law should be used when appropriate to support the State’s objectives in providing educational services to women."


19. Until there have been sufficient number of cases reported on this particular offence, the court can only draw guidance by way of analogy on sentence imposed on those convicted for breaches of sections 229A, 229B and 229C where evidence of such relationship under s.6A (2) existed at the time of the offence and which the court took into account in sentencing and the rest is common sense. Sentencing is not an art or science that can be meticulously refined by some scientific formula in every case. Each case is different for the other and each case must be decided on its own merits.


20. In this case, I consider the mitigating factors in favour of the prisoner, namely the prisoner’s plea of guilty, expression of remorse and cooperation with the police. However when these factors are weighed against the aggravating circumstances that I alluded to already, they simply fade away into nothingness. That being the case, an appropriate sentence must not only serve as deterrent to the prisoner and send a strong warning to all the teachers at large, but must also be seen as retribution for the injustice that he has caused to the victim and her family that money cannot compensate this is prevalent offence When saying this I bear in mind that the sentence of five years imposed by Lenalia J in The State v Thomas Takaliu (supra) was in relation to an offence of sexual touching of victim who was 10 years old and the maximum penalty was 12 years. That is almost half of the maximum term for that offence were circumstances of aggravation existed.


21. In the case before me, I treat it as a worst case because this is not just another case of a teacher sexually abusing his pupil in breach of the prevailing trust authority and dependency relationship, this further aggravated by the child’s loss of educational opportunity, pregnancy of the child that forces her to become a mother at this very early age when she is not even ready to assume such motherly responsibility and loss of prospects of good marriage that the parents were entitled to expect from their daughter at an appropriate time when she came of age. For this reason, I would sentence him to ten years imprisonment had this been a trial. But given his plea of guilty, which was spared the victim the embarrassment of humiliation of coming to court and giving evidence, I sentence him to seven years imprisonment in hard labour.


22. I order his bail money of K1, 000.00 to be paid to the victim both as compensation to her and also for the support and maintenance of her child. I make this order pursuant to section 2 of Criminal Law (Compensation) Act 1991 and by virtue of my inherent powers given to me under s.155(4) of the Constitution to do justice to the victim in the given circumstances of this case, how ever little this token help can somewhat ease her burden.


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

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