State v Kepas [2007] PGNC 77; N3192 (21 March 2007)

N3192

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 69 0F 2007

THE STATE

V

EREMAN KEPAS

Bialla: Cannings J
2007: 14, 19, 21 March

CRIMINAL LAW – sentencing principles for persistent sexual abuse – Criminal Code, Division IV.2A, sexual offences against children – Section 229D, persistent sexual abuse of a child – sentence after plea of guilty – five instances of sexual touching and one instance of sexual penetration by a 60-year-old man of a 10-year-old girl – circumstances of aggravation pleaded in indictment – sentencing of an offender under Section 229D(6) – maximum penalty of life imprisonment – starting point – identification of relevant considerations – sentence of 12 years.

The offender, who was 60 years of age when the offence was committed, pleaded guilty to the persistent sexual abuse of a 10-year-old girl, his adopted daughter, over a period of four months. There were five instances of sexual touching, constituted by rubbing his penis on the girl’s vagina and ejaculating, and one instance of sexual penetration.

Held:

(1) In a case of persistent sexual abuse of a 10-year-old child constituted by an act of sexual penetration plus other instances of sexual touching the court should apply a starting point of 25 years imprisonment.

(2) Mitigating factors are: offender acted alone; co-operated with police; no further trouble; guilty plea; first offender; his age and medical condition.

(3) Aggravating factors are: large age gap; child’s tender age; no consent; physical violence; physical injury; emotional impact on victim; breach of trust; series of six incidents; did not give himself up; no compensation, apology or reconciliation; no genuine remorse.

(4) If the offender were to be sentenced so that the court disregarded his advanced age and his medical condition, the sentence would be amongst the highest ever imposed for this sort of offence, ie in the range of 25 to 30 years imprisonment. However, the offender’s advanced age and his medical condition were regarded as major mitigating factors; and the sentence imposed was 12 years imprisonment.

(5) The pre-sentence period in custody of one month was deducted and none of the sentence was suspended, leaving a sentence to serve of 11 years, 11 months.

Cases cited

The following cases are cited in the judgment:

Joe Nawa v The State SCR No 16 of 2006, 02.03.07
Jack Mari v The State SCR No 19 of 2006, 02.03.07
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

SENTENCE

This was a judgment on sentence for persistent sexual abuse of a child.

Counsel

F Popeu, for the State
O Oiveka, for the offender

SENTENCE

21 March, 2007

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to the offence of persistent sexual abuse of a child.

CONVICTION

2. The offender pleaded guilty to the following facts:

• The victim in this case is a girl, aged 10 when the offence was committed in 2006.
  
• In 2002 the offender’s wife made an arrangement with the girl’s biological parents to bring the girl to live with them in Bialla.
  
• The girl stayed with the offender and his wife for four years.
  
• In 2006, by which time the girl was aged 10, the offender started to sexually abuse the girl. He did this over a period of four months, from February to June 2006.
  
• The first occasion was on 2 February 2006. While in their house at Bialla the offender took the girl into the house, removed her clothes and rubbed his penis on her vagina, ejaculating on her lap-lap.
  
• Similar incidents followed later in February, March, April and May.
  
• The worst incident was the last. On 21 June 2006 he took her into her room, removed her clothes and penetrated her vagina with his penis. This caused the girl to lose consciousness. She was unable to walk properly. She was taken by neighbours to the hospital where she was examined by medical staff, given treatment and the matter was reported to the provincial welfare officer and to the police.
  
• The first five incidents constituted offences under Section 229B of the Criminal Code as he touched the girl’s sexual parts for sexual purposes. The last incident constituted an offence under Section 229A of the Criminal Code as he engaged in an act of sexual penetration with a child under the age of 16 years.
  

3. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted him on one count of persistent sexual abuse of a child under Sections 229D(1) and (6) of the Criminal Code, as charged.

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:

I apologise before this court for the offence that I have committed. My health is very poor so I ask if the court can give me a good behaviour bond. I am prepared to compensate the victim and her relatives. There is separation between my family and the victim’s family and I want to pay compensation according to PNG custom.

OTHER MATTERS OF FACT

6. 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, (Jalina J, Mogish J, Cannings J)).

7. Mitigating matters are his age and poor health and the fact that when questioned by the police he made admissions and co-operated.

PRE-SENTENCE REPORT

8. To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe Office of the Community Corrections and Rehabilitation Service. A summary of the report follows.

EREMAN KEPAS

Age: 61-year-old male.

Residence: Lives in town, in Bialla, with his wife.

Family background: he is from Nodup village in the Rabaul area of ENBP – oldest in a family of three.

Marital status: Married with four children – oldest son is employed in POM, other children are in Bialla – his wife, Dorothy, is the eldest sister of the victim’s biological mother.

Education: grade 8, Kambubu Primary School, 1967.

Employment: worked as an officer of the Department of Works from 1968 to 2006 – based in Rabaul, Lae and Bougainville before being posted to Bialla in 1990.

Health: suffers from chronic abdominal discomfort.

Financial status: no longer has a regular income – relies on wife’s income from selling market goods.

Plans: wants to compensate the victim and reconcile with her biological family – wants to develop four blocks of land he owns in Bialla.

Victim’s attitude: the victim is now 11 years old and has returned to live with her biological parents in POM – she was not interviewed, nor were her biological parents, however it is apparent from the welfare reports on the court’s file that they are extremely distressed over what has happened to their daughter.

Family’s attitude: his wife will respect whatever decision the court makes but if the court orders compensation that would be good as it would allow the family to right the wrong in a customary way.

Attitude of community: the offender held a senior position in the Seventh Day Adventist Church in Bialla, which he has been required to vacate – the senior pastor reports that it is likely that the offender will be disciplined by the church in addition to being sentenced by the court – a representative of the Tolai community in Bialla states that the type of crime committed by the offender is unacceptable – the Tolai community will assist in rehabilitation if the offender is given a non-custodial sentence.

Assessment: if the court imposes a non-custodial sentence, a long period of probation would be required, subject to very strict conditions.

Recommendation: open – probation is neither recommended nor opposed.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Oiveka highlighted that the offender had made full admissions to the police and pleaded guilty, thus saving the embarrassment and trauma that would have occurred if the victim had been required to give evidence.

SUBMISSIONS BY THE STATE

10. Mr Popeu submitted that the aggravating factors far outweigh mitigating factors. There was a serious breach of trust on at least six occasions.

DECISION MAKING PROCESS

11. 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 are the considerations that should be taken into account in determining the head sentence, in terms of years; and what is the head sentence?
  
• step 4: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 5: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. Section 229D (persistent sexual abuse of a child) of the Criminal Code states:

(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 a crime of persistent sexual abuse of a child.

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

(2) For the 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 so satisfied about the dates or the order of those occasions.

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

13. The sentencing regime therefore distinguishes between:

• persistent sexual abuse under Section 229D(1) (consisting of commission of two or more child sex offences other than sexual penetration) for which the maximum penalty is 15 years imprisonment; and
  
• persistent sexual abuse under Section 229D(6) (consisting of commission of two or more child sex offences, at least one of which involved an act of penetration) for which the maximum penalty is life imprisonment.
  

14. In the present case the offender was convicted under Section 229D(6) and the maximum sentence is life imprisonment.

15. 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?

16. Two recent Supreme Court decisions help to set a starting point. In Joe Nawa v The State SCR No 16 of 2006, 02.03.07, the offender engaged in an act of sexual penetration with his eight-year-old stepdaughter contrary to Section 229A. On appeal his sentence was reduced from 20 to 17 years imprisonment. In Jack Mari v The State SCR No 19 of 2006, 02.03.07, the offender engaged in an act of sexual penetration with his 14-year-old stepdaughter contrary to Section 229A. On appeal his sentence was reduced from 20 to 15 years imprisonment. Both offenders were sentenced for committing one offence constituted by a single act of penetration.

17. The present case consisted of one act of penetration of a 10-year-girl, where the relationship between the offender and the victim was similar to the relationships that existed in those other cases, plus five instances of sexual abuse. A starting point of 25 years imprisonment would therefore be appropriate.

STEP 3: WHAT ARE THE RELEVANT CONSIDERATIONS AND WHAT IS THE HEAD SENTENCE?

18. There are a number of considerations to take into account in deciding on the head sentence. I have listed them 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. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

19. Three sorts of considerations are listed. Numbers 1 to 9 focus on the circumstances of the incident. Numbers 10 to 14 focus on what the offender has done since the incident and how he has conducted himself. Numbers 15 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 – the offender was aged 60 and the victim 10; an age gap of 50 years.
   
2. Is the complainant not far under the age of 16 years? No, she was only 10 years old.
   
3. Was there consent? No, the girl was at an age when she should be deemed incapable of consenting.
   
4. Was there only one offender? Yes.
   
5. Did the offender not use a threatening weapon and not use aggravated physical violence? No, the act of sexual penetration must have involved physical violence as the victim was rendered unconscious and had to be taken to the hospital.
   
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the complainant? No.
   
7. Did the incident have only a minimal impact on the child? No, in the absence of evidence to the contrary it must be presumed that the emotional impact of continued sexual abuse on a child of a tender age is severe and long running.
   
8. Was there no relationship of trust, dependency or authority between the offender and the complainant or, if there was such relationship, was it a distant one? No – the offender was her adopted father.
   
9. Was it an isolated incident? No. There were six separate incidents over a four-month period.
   
10. Did the offender give himself up after the incidents? No.
    
11. Did the offender cooperate with the police in their investigations? Yes.
    
12. 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.
    
13. Has the offender not caused further trouble to the complainant or the complainant’s family since the incident? Yes.
    
14. Has the offender pleaded guilty? Yes.
    
15. Has the offender genuinely expressed remorse? No. The offender, in allocutus, apologised to the court, not to the victim or her biological parents. The court was left with the impression that the offender still does not appreciate the gravity of his crime.
    
16. Is this his first offence? Yes.
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes, he is, by PNG standards, an older age man whose health is poor.
    

20. To recap, mitigating factors are:

• No 4 – offender acted alone;
• No 11 – co-operated with police;
• No 13 – no further trouble;
• No 14 – guilty plea;
• No 16 – first offender;
• No 17 – his age and medical condition.
  

21. Aggravating factors are:

• No 1 – large age gap;
• No 2 – child’s tender age;
• No 3 – no consent;
• No 5 – physical violence;
• No 6 – physical injury;
• No 7 – emotional impact on victim;
• No 8 – breach of trust;
• No 9 – series of six incidents;
• No 10 – did not give himself up;
• No 12 – no compensation, apology or reconciliation;
• No 15 – no genuine remorse.
  

22. There are six mitigating factors compared to eleven aggravating factors, which gives an indication of the extremely serious nature of the offence that was committed.

23. It is hard to comprehend how a man who held down a government job for so long and was, according to the pre-sentence report, a reputable office-holder in the Seventh Day Adventist Church, could commit such a wicked crime. The offender has brought shame to himself, his family, his church and the people of Nodup village in East New Britain. If he were to be sentenced disregarding his advanced age and his medical condition, the sentence would have to be amongst the highest ever imposed for this sort of offence, ie in the range of 25 to 30 years imprisonment. Indeed it is arguable that this falls within the worst-case category, warranting a life sentence. I think many people would say that this is what the offender deserves.

24. However, I am going to regard the offender’s advanced age and his medical condition as major mitigating factors. I do not feel that I would be dispensing justice by subjecting a 61-year-old man to a 25-year sentence. It would leave him little prospect but to die in prison as an old and ill man. I am therefore imposing a sentence of about half of what would otherwise be warranted. The sentence I impose is 12 years imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

25. The offender has spent one month in custody in connexion 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 table 1:

TABLE 1: CALCULATION OF FINAL SENTENCE

Length of sentence imposed	12 years
Pre-sentence period to be deducted	1 month
Resultant length of sentence to be served	11 years, 11 months

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

26. This is an extremely serious case and I have already given the offender considerable credit because of his guilty plea and other mitigating factors particularly his advanced age and medical condition. The pre-sentence report does not warrant suspension of any part of the sentence.

SENTENCE

27. Ereman Kepas, having been convicted of the crime of persistent sexual abuse of a child, is sentenced as follows:

Length of sentence imposed	12 years
Pre-sentence period to be deducted	1 month
Resultant length of sentence to be served	11 years, 11 months
Amount of sentence suspended	Nil
Time to be served in custody	11 years, 11 months

Sentenced accordingly.
____________________________

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