State v Burua [2006] PGNC 222; N3081 (7 July 2006)

N3081

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.829 OF 2005

THE STATE

-V-

DAVID DUNA BURUA

Kokopo: Lenalia, J.

2006: 18 April
6 July

CRIMINAL LAW – Sexual offences – Sexual penetration of minor –
Aggravations – Existing relationship of trust, dependency and trust – Penetration of minor and underage child – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.s.229 (D) (1) (6)

CRIMINAL LAW – Sexual offence – Penetration of child under 16 years
– Substantial age differences – No expression of remorse – Pattern of abuse over a period of years – Aggravation – Punitive and deterrent sentence called for – Sentence of 20 years appropriate.

Cases cited.

The State v Penias Mokei (2004) N2635
The State v Mitige Neheya [1988-89] PNGLR.174
The State v Sottie Apusa [1988-89] PNGLR 170
The State v Thomas Angup (2005) CR N0 414 of 2005
The State v John Ritsi Kutetoa (2005) N2514
The State v Peter Lare (2004) N2557
The State v Esrom Tiama (13.4.06) CR N0 254 of 2006

Counsel:

Mr. L. Rangan, for the State
Mr. Donald, for the Accused

13 July 2006.

1. LENALIA, J: The accused pleaded guilty to one count of sexual penetration pursuant to s.229D (1) & (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 aggravated by an existing relationship of trust, dependency and authority and that at the time of the offence, the victim was age less than fifteen (15) years.

FACTS.

2. The brief circumstances of this case demonstrate yet another rampant and persistent sexual abuse occurring within a family circle between the father and his real blood daughter. The prisoner is married to two wives with the third one he already deserted and separated from and as the facts show he has children born to him from those three women as well as with one or two of them, there are other children born to them from their previous husbands. Although the statements of the victim (Emma Burua) and her mother Mila Dora do not reveal whether the victim is a blood daughter of the prisoner, the written Pre-Sentence report addresses that issue and I am satisfied that, the prisoner is the biological father of the victim.

3. As of 16 February 2005, the victim was 15 years old and she was doing Grade 7 by then. In Emma''s statement, dated 16 February 2005, she says that prior to the prisoner engaging in sexual penetration with her, the prisoner started to sexually abuse her when she was only doing her Grade 3 at Gelegele Primary School. According to the victim, the nature of such abuse involved sexual touching of the victim''s breasts, buttocks, and then it went on to sexually touching her vagina.

4. She recalls that there came a night in 2001, after having her bath, her mother took some food to the victim''s grand mother. While the mother was out that night, the prisoner went into the victim''s room and slept next to her in the same bed and sexually caressed her in all vulnerable parts of her body. The accused did not have sex with her then as the victim''s mother disturbed them.

5. Following the above attempt, the victim says that, the following weeks, the accused had regular visits to her room and it would be at night or even day time. At times the prisoner asked her to hold on to his erected penis while he was dipping his fingers in and out of the victim''s vagina.

6. Then in the year 2002, the victim recalls that, the prisoner started to have sexual intercourse with her. On the first occasion Emma recalls that, she could not bare the pain as it was her first time to have sex. The victim says sexual penetration continued at night as well as during day times particularly during the times when her mother and her sister were not around. She even reveals in her statement that, when the prisoner started having sexual intercourse with her, she by then had not commenced or has not had any experience in menstruation period as yet.

7. A statement submitted by Isabel Duna, one of the accused''s two wives shows that, the prisoner''s first wife was Pauline. This Pauline had three natural children from the prisoner. He got separated from his first wife in 1983. According to the pre-sentence report, Pauline and the accused went through a general law marriage in the church. Then in 1988, the accused got Isabel as his second wife. To Isabel and the accused, they have three natural children. Whilst in those relationships, the prisoner also got married to Dora Mila who became the third wife and Dora gave birth to Emma in 1990. She further reveals that when the accused started having an affair with Emma, he tried to convince her to accept the victim as another wife.

ADDRESSES.

8. I had the prisoner in allocutus on the date he entered the guilty plea that was 18 April 2006. On his statement, he said, he did not have anything to say. I also had the benefit of hearing both counsels on mitigations and aggravations. On the request of Mr. Donald of counsel for the prisoner, the matter was adjourned for a pre-sentence report.

9. I would like to thank the Probation Officer of this Province for the well-prepared and detailed pre-sentence report. The persons contacted as shown by the report were mainly the accused, his two wives and the victim. There are some community inputs from the councillor of Rabuana village and the community Development Officer representing the community at large to represent the community''s perspective about what the people in the community think about this evil practice that is eating and eroding the customary ties that usually bind families together.

10. Mr. Donald of counsel for the prisoner submitted for leniency stating that the offence is serious aggravated by such factors as breach of trust and the existing relationship of trust, dependency and authority. Mr. Rangan of counsel for the prosecution submitted that the offence is serious as reflected by the prescribed maximum penalties provided for by s.229A of the Code.

LAW.

11. The prisoner is charged under s.299D (1) & (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. I wish to quote the whole proviso which states:

""""229D. PERSISTENT SEXUAL ABUSE OF A CHILD.

(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of the crime of persistent abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a tern not exceeding 15 years.

(2) For purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

• (a) must specify with reasonable particularity the period during which the offence against this section occurred; and
  
• (b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.
  

(5) For an accused to be committed of an offence against this section –

• (a) the court must be satisfied beyond reasonable doubt, that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and
  
• (b) the court must be so satisfied about the material facts of the two incidents, although the court need not be satisfied about the dates or the order of those occasions.
  

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and liable, subject to Section 19, to life imprisonment.""

12. There are a number of aggravations involved in this case. First, there was a breach of trust involved.

The prisoner in this case is the ""parent"" of the victim as defined by s.6 (1) (2) (a) to (h) of the Act. The above section is in the following terms:

""(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 counselor 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 or control.""

13. Sexual abuse of our young children in this country and particularly in this Province is very prevalent. Very young girls are being abused at very early ages as was the case in the instant case. A child at the age of less than 15 years is merely a child of very tender age is not capable of having sexual relations with anyone. The courts must view these kinds of abuses to be very serious. There are more then several forms of child abuse such as physical, mental, emotional and sexual abuse.

14. What do parents feel like when as was the case of the prisoner, he being the father of the victim sexually abused the victim. According to the victim in her statement, she said, she was doing Grade 3 when the accused commenced sexually abused her by sexual touching. To the court, the prisoner followed a persistent pattern to sexually molest the victim then followed on to sexual penetration. The prisoner must now understand that what he did to his daughter is not only against the law but morally, what he did is against nature, because only animals without instinct can commit incest.

15. Persistent sexual abuse is regarded by law as very serious and s.229D defines such abuse. I have quoted the above section; however, I also wish to quote s.299A because Subsections (2) and (3) also carry the very important message about sexual abuse of minors under the age of 12 years and the point on an existing relationship of trust dependency and authority as was the case in the instant case. The above Section states:

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

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

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.""

16. Abuse of trust, authority or dependency is an offence of itself punishable by an imprisonment of 15 years. Section 229E of the Act provides:

""229E. ABUSE OF TRUST, AUTHORITY OR DEPENDENCY.

(1) A person who engages in an act of sexual penetration or sexual touching of a child between the age 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""

17. The accused breached the trust existing between him and his daughter. In time of trouble and danger the accused could be expected to provide refuge to the victim and the breach he caused is very severe indeed. There is no more city of refuge for the victim to seek refuge in time of danger. Such breach can cause great havoc in your family ties first with your wife, then with the victim''s uncles then of course the extended family ties that are commonly practiced in Papua New Guinea. As already noted the accused is the biological father of the victim. The definition of ""relationship of trust, authority and dependency"" is defined in s.6 (1) (2) (a) to (h) which I have already set out describes the nature and closeness of such relationship between the father, daughter and other relationships.

18. On recent sentencing trends by National Court judges, sentences have gone very high due to the frequency and prevalent nature of sexual offences. Of particular concern to this court is incest or other sexual crimes committed between members of the nucleus family circles. As often stated, breach of trust is betrayal in the most severe kind and is ""personal treason"". This is how His Honour Justice Brunton put it in the case of The State v Sottie Apusa [1988-89] PNGLR 170:

""There are other relationships of trust which in my view constitute circumstances of aggravation in these cases. For example, within the medical profession, the relationship between doctor, paramedic, nurse and patient. It is within this broad category of trust and dependency that offences committed by ""step-fathers"" or ""uncles"" should fall, for a 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 personal treason""

19. The next aggravation in this case is there was and is a very big age difference between the victim and the prisoner. The accused in this case is about 50 years while the victim was age 15 at the time the matter was reported to the police. She must have been around 11 years or 12 when the accused started to sexually abuse her by sexual touching. According to the case of The State v Mitige Nehehia [1988-89] PNGLR 174 where there is a substantial age difference, it is an aggravation. I adopt the principles stated in the above case and apply them to the circumstances of this case and I must reiterate that, the breach of trust in this case is very severe indeed because, the prisoner is the biological father of the victim.

20. I should now refer to some cases of the similar nature where accused have been sentenced to severe penalties. In The State v Thomas Angup (2005) CR.N0.414 of 2005 a case in this Province, the accused was sentenced to 20 years for sexual penetration of an under age girl. In The State v John Ritsi Kutetoa (2005) N2814, the accused was sentenced to 17 years. In the case of The State v Peter Lare (2004) N2557, the prisoner was sentenced to 20 years for sexual penetration aggravated by physical violence. In The State v Tiama Esrom (13.4.06) CR.254 of 2006, the prisoner was sentenced to 12 years for one act of sexual penetration of his grand daughter, (see also The State v Penias Moke (2004) N2635).

21. It seems like sentences imposed by judges of this Court are not having any effect on the deterrent aspect of the sentencing patterns being adopted by the courts. This means that, sentences must be increase significantly to deter this heinous crime. How can the community allow this type of behaviour particularly sexual relationship between parents and children when in case of the prisoner, he had two wives to satisfy his sexual gratification. Yet he wanted to defile his own daughter by taking her virginity away for his sexual lust and gratification. A clear warning ought to be signalled now to the community at large that sexual abuse of any form on children is a serious matter which must be severely punished.

22. I am of the view that the Parliament did right by adding Subsection (6) of s.229D of the Act so that the Court has to balance the facts of each case carefully then decide the penalty. The prisoner must realize that he can be sent to goal for life imprisonment. The case of the prisoner was one of persistent sexual abuse. His relationship with the victim resulted in the victim giving birth to a child.

23. The present case is one of those worst type cases of sexual abuse because the victim being the accused own daughter gave birth to a child and that innocent child is fatherless will not have the support of a natural father. Even the accused will not support the child as he will be serving a long term of imprisonment.

24. Because of the persistent nature of the circumstances of the instant case, the accused impregnated his own daughter. The court notes from the statement made by one of the co-wives of the two women who are married to the accused that the accused even insisted to Isabel Duna, he wanted to take, the victim into Isabel''s house perhaps for purposes of keeping her as another wife. This is nonsensical and quite out of the order of nature as was ordained by the Almighty God at creation.

25. To demonstrate to the general public that the Constitution and other laws protect the interests of every body, be they adult male or female, youths and our under aged children, the court must be vigilant and take a consistent approach in dealing with this crime which destroys our relationships in customary ties, communities, our towns and cities. The moral standards in our communities are fast eroding due to the very relaxed approach adopted by our community leaders. The courts can contribute to the fall in the moral standards if magistrates and judges do not impose sentences that will deter offenders or likely offenders who wish to offend in sexual offences.

26. The accused is a well-educated person. He graduated from the Papua New Guinea Institute of Public Administration (PNGIPA) what then used to be known as ''Administrative College''. He has held various positions in the Department of East New Britain. He is currently the Administrative Officer for the Rabaul District.

27. In consideration of an appropriate sentence for the prisoner, I take into account the prisoner''s guilty plea, his previous good character and his long service with the Government since 1975 to today (13.7.06). But weighing the mitigations against the aggravations the prisoner must serve a term of imprisonment to show the community that sexual abuse is very prevalent and the law regards sexual offences with abhorrence and it must be appropriately punished and if need be very high sentences must be imposed.

28. The law of the land must be maintained and enforced in its entirety to reflect the serious nature of the crime of sexual abuse. I am of the view that a deterrent sentence should be imposed. The sentence of this court is 20 years imprisonment in hard labour. The time spent in custody if any be deducted pursuant to s.3 (2) of the Criminal Justice (Sentence) Act 1986. His bail monies shall be refunded to him.

___________________
Public Prosecutor: Lawyer for the State
Donald & Co Lawyers: Lawyer for Accused