State v Bun [2007] PGNC 173; N4494 (18 September 2007)

N4494

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 580 0F 2007

THE STATE

V

DANIEL LATU BUN

Buka: Cannings J
2007: 6, 18 September

CRIMINAL LAW – sentence – sexual abuse of trust – Criminal Code, Section 229E – offender had sex with his 16-year-old niece – guilty plea – sentence of 7 years.

A man pleaded guilty to one count of engaging in an act of sexual penetration with a child aged 16 to 18 years, with whom he had an existing relationship of trust. He had sex with his 16-year-old niece.

Held:

(1) The starting point for sentencing for this offence is seven years, six months imprisonment.

(2) Mitigating factors are: no weapon or aggravated violence; no sexually transmitted disease; isolated incident; co-operated with police; no further trouble; pleaded guilty; first-time offender. Aggravating factors are: large age gap; victim had only just turned 16; serious breach of trust; did not give himself up; no reconciliation; not a youthful offender.

(3) A sentence of seven years was imposed.

Cases cited

The following cases are cited in the judgment:

The State v Andrew Amid CR 1077/2004, 23.02.05
The State v Raphael Dala CR 311/2005, 19.12.06
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

SENTENCE

This was a judgment on sentence for sexual abuse of trust.

Counsel

L Rangan, for the State
P Kaluwin, for the offender

18 September, 2007

1. CANNINGS J: This is a decision on sentence for a 31-year-old man, Daniel Latu Bun, who pleaded guilty to one count of sexual abuse of trust arising from the following facts. The victim, "R", was 16 years old at the time. She is the offender's niece – his sister's daughter. The incident happened around 3.00 pm on 30 October 2006 at Teilatu village, in the Solos area of Buka Island. R went to the garden with her small sister, to harvest some greens. The offender arrived, found R, took her into the bushes and had sexual intercourse with her by inserting his penis into her vagina. He knew that she was only 16 and she was his niece and that he was breaching a relationship of trust by sexually penetrating her. I entered a conviction for sexual abuse of trust under Section 229E(1) (abuse of trust, authority or dependency) of the Criminal Code, which states:

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. The term "existing relationship of trust, authority or dependency" is defined by Section 6A of the Criminal Code and includes, in Section 6A(2)(c), circumstances where the accused person is the complainant's uncle.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. 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. He said:

I say sorry to the court and to God. This is my first time to be before any court. I ask for a good behaviour bond.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). The only significant mitigating factor amongst all that material is that he co-operated with the police and made admissions in his police interview.

PERSONAL PARTICULARS

6. Daniel Latu Bun is aged 31. He is single, Catholic, the last born in a family of seven, educated to grade 2 and has never been formally employed.

SUBMISSIONS BY THE DEFENCE

7. Mr Kaluwin highlighted the guilty plea, which is significant in this case as he has saved his niece the trauma and embarrassment of giving evidence in court; the offender's co-operation with police; and his remorse. A sentence of five years, partially suspended, would be appropriate, Mr Kaluwin submitted. On the issue of consent, the court should sentence the offender on the basis that sex with his niece was consensual as it was never put to him that she did not consent. It was a one-off incident, a crime of opportunity and a sentence should not be imposed that would be crushing.

SUBMISSIONS BY THE STATE

8. Mr Rangan submitted the witness statements in the depositions showed that the victim did not consent. This type of sex crime, where the victim is a close blood relative of the offender, is prevalent and disturbing the fabric of Bougainville society, so a heavy sentence of around ten years imprisonment is called for.

DECISION MAKING PROCESS

9. 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 for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. The maximum is 15 years but 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?

11. 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 OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. There are no reported cases of sentencing for offences under Section 229E but two unreported cases are useful precedents. In The State v Andrew Amid CR 1077/2004, 23.02.05, Lay J sentenced a 38-year old married man in Buka to three years imprisonment. The offender 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. In The State v Raphael Dala CR 311/2006, 19.12.06, I sentenced a mature aged married man in Kimbe to five years imprisonment. The offender 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. The sentence was fully suspended, as there had been reconciliation and forgiveness in the family, subject to conditions including payment of compensation.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. Despite the shortage of precedents, I consider that the sort of considerations to take into account when determining a head sentence is fairly similar for all sexual offences involving children. 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. 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 after the incident and how he has conducted himself. Numbers 14 to 17 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 30 and the complainant 16; an age gap of 14 years.
   
2. Is the victim not far under the age of 18 years? No, she was just 16 years old.
   
3. Was there consent? Neutral. There is evidence of lack of consent in the depositions, but I uphold the defence counsel's submission that the offender has not admitted to it in his guilty plea so it should not be regarded as an aggravating factor.
   
4. Was the form of penetration other than penile penetration? No.
   
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 victim's uncle.
   
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? No.
    
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? No.
    
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? Neutral.
    

14. To recap, mitigating factors are:

• No 5 – no weapon or aggravated 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 15 – first offender.
  

15. 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 11 – no reconciliation;
• No 16 – not a youthful offender.
  

16. The other factors (No 3, consent and No 17, other matters) are neutral.

17. After weighing all these factors and bearing in mind that there are seven mitigating factors compared to eight aggravating factors, the head sentence should be around the starting point of seven years, six months. I place great weight on the guilty plea and impose a head sentence of seven years imprisonment.

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

18. 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, which is ten months, two weeks.

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

19. There is no pre-sentence report before the court and I have not been informed of any reconciliation or forgiveness. No material has been presented that warrants suspension of any part of the sentence.

SENTENCE

20. Daniel Latu Bun, having been convicted of one count of sexual abuse of trust, is sentenced as follows:

Length of sentence imposed	7 years
Pre-sentence period to be deducted	10 months, 2 weeks
Resultant length of sentence to be served	6 years, 1 month, 2 weeks
Amount of sentence suspended	Nil
Time to be served in custody	6 years, 1 month, 2 weeks

Sentenced accordingly.
___________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender