State v Asupa [2011] PGNC 197; N4540 (8 November 2011)

N4540

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 451 OF 2010

THE STATE

-V-

ESOROM ASUPA

Kawi J: 2011
Tinputz: 22nd July
Buka : 7th – 8th November

CRIMINAL LAW PRACTICE- Sexual penetration of a young girl under 16 years- Sentencing principles- Victim only 15 years old at time of offence-Criminal Code (Sexual Offences And Crimes Against Children's) Act. Section 229E (1) - case of an uncle by marriage sexually penetrating the younger sister of his wife- Offence committed in breach of trust situation- Prisoner pleaded guilty- Existing relationship of trust, authority and dependency – Repeated acts of sexual penetration of the victim by the prisoner-Guilty plea by a first offender- Sentence must reflect the sentencing objectives of deterrence. Sentence must be punitive and a custodial sentence must be imposed upon the prisoner- custodial sentence of ten (10) years appropriate

Facts

The accused pleaded guilty of one count of sexually penetrating a girl between the ages of 16 and 18 years contrary to section 229E(1) of the Criminal Code (sexual Offences and Crimes against Children's Act 2002. The victim would often visit his elder sister and her husband and spend time with them. She would stay with the prisoner and his wife, she being the younger sister of the wife of prisoner. At the time of the commission of the offence, there was an existing relationship of Trust, Authority and Dependency between the accused and her daughter in law. The prisoner abducted the victim and the two took off for the forests where they spent several nights together with the prisoner sexually penetrating her as he pleased.

On sentence:

HELD: (1) The offence of sexual penetration of a girl between the ages of 16 and 18 years committed by a person whom she would refer to as an uncle by marriage constitutes a serious breach of the existing relationship of Trust, Authority, or Dependency, that it calls for an immediate deterrent and punitive custodial sentence.

(2) Sexual offences are becoming prevalent here on Bougainville. Accordingly the Courts must impose strong deterrent, and punitive and custodial sentences upon offenders.

(3) In the circumstances, a deterrent custodial sentence of 12 years will be imposed. To impose a sentence in the range of 3-5 years is to seriously undermine the gravity and seriousness of sexual crimes and offences.

Cases cited

The State –v- Damien Maigawi [2002] N2419
The State –v- Tioti Malana; Unnumbered and Unreported judgement of Lenalia J given on the 12th July 2010.
The State –v- Peter Lare (2004) N2557
The State v- Joseph Ureap; Unnumbered and Unreported judgement of Sawong J dated 12th July 2010
The State –v- John Ritsi Kutetoa (2005) N2814
In The State –v- Siro Waida (2008) N3311
The State –v- Bensa Siovoro; Unreported Judgement of Kawi J dated 15th July 2011 2011.

Counsel

Mr. Philip Kaluwin, for the Accused
Mr. Lukara Rangan, for the State

14th November, 2011

1. KAWI, J: The accused pleaded guilty to one count of sexual penetration of a young girl between the ages of 16 and 18 years contrary to Section 229E(1) of the Criminal Code (Sexual Offences and Crimes Against children) Act 2002. At the time of the commission of the crime, the victim was the younger sister of the wife of the accused. She would often spend time with her sister and her husband the accused in their household. I am therefore satisfied that there was an existing relationship of trust, authority and dependency between the accused and the victim.

1. THE FACTS

2. The brief facts to which the prisoner pleaded guilty are that the victim is the younger sister of the wife of the prisoner. She would often spend time with her sister, (the wife of the prisoner). He abducted her (ie the victim) and took off for the forests where he spent some time in the forests with her, sexually penetrating her and satisfying his own sexual lusts and carnal desires for flesh as he pleased .

2. THE LAW

3. The relevant provision to which the accused pleaded guilty is section 229E (1). This provision is stated in these terms.

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 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 under this section that the child consented unless, at that time of the alleged offence, the accused believed on reasonable grounds that the child was 18 years or older.

4. I am quite satisfied that going by the medical evidence that the victim is no more 15 and 18 years. Sentencing is a discretionary process guided by several legal principles.

5. One of these principles is that the maximum penalty prescribed by Legislation is usually reserved for cases falling into or described as belonging to the worst category of cases.

6. The facts of this case to which the accused pleaded guilty cannot in my view be described as a case falling in the worst category. That being so, I cannot impose the maximum prescribed penalty of 15 years imprisonment upon you. But that does not mean that this case is less serious than other cases. In my view all sexual offences are very serious simply because they are all aimed at protecting moral decency in a society, sexual offences are also very serious because they seek to protect and promote the dignity of women in a society

7. Another principle which guides the count in the sentencing process is that the courts will usually take into account factors which operate in favour of the accused person and factors which operate against the accused person. These are known as mitigating and aggravating factors. Some mitigating factors are strongly mitigating while other may be mildly mitigating. The same is true for aggravating factors.
I am unable to record any extenuating circumstances here.

8. I record the following mitigating factors in your favour:

• Your early plea of guilty. By pleading guilty very early you saved the court a lot of time and expenses in conducting a full trial.
  
• You are married with two children of your own who are now attending elementary school.
  
• You are a follower of the Baptist Church.
  
• There was no violence and the victim suffered no injuries to her body especially vaginal injuries when the crime was perpetrated upon her. There was some indication of consent from her. And I note that by law, consent is no defence to a charge. See section 229E (2) and section 229F.
  
• Some form of compensation was paid and peace restored between the family of the prisoner and the victim.
  
• The prisoner expressed remorse for the crime that he committed and apologized to the victim and her family. He further apologized to the court
  

9. Operating against you, I record the following:

• You were the uncle of the victim by virtue of your marriage to her elder sister.
  
• Being her uncle by marriage the victim and you had an existing relationship of trust, authority or dependency. She looked up to you for strength and guidance just as her elder sister, your wife, looked up to you for strength and support,
  
• Despite all these good moral values, you lusted for her flesh more than anything else and it was your evil desires for her flesh which led you to do what you did.
  
• As a result of your sexual lusts and carnal desires for her, you hijacked her and the two of you then eloped into the forest where you spent the night sexually penetrating her as you wished until your sexual lusts and gratification were satisfied and you came home.
  
• She will now live forever with the social stigma and the shame and embarrassment of being sexually penetrated by her own uncle, the husband of her elder sister.
  
• The psychological trauma, anxiety and stress of being sexually abused by her uncle will remain with her for the rest of her life.
  
• You cared little and showed no respect at all for your wife and your other two children. You were more interested and lusted for the flesh of your wife's younger sister.
  
• The single biggest aggravating factor against you is that this offence was committed in a breach of trust, authority and dependency situation.
  

10. In these circumstances, I do not find the presence of any mitigating or extenuating circumstances, which would have significantly reduced the gravity of the crime you committed.

11. The sentencing process and the eventual sentence are all aimed at attaining one or more objectives of sentencing. The final sentence I arrived at must reflect and feature one or more of these objectives. And these objectives of sentencing are:

(a) Deterrence, (b) Rehabilitation; (c) Restitution; (d) Retribution.

3. PRE SENTENCE REPORT.

12. A pre sentence report was carried out for the prisoner. Owing to time constrains the community based Corrections officer could only manage to do the report based on information collected from Police. The Prisoner was interviewed and personal information was collected and analyzed. Annexed to the pre sentence Report were letters from the mother of the victim and the victim herself. They advised the Court that genuine attempts are being made by both parties to pay compensation to settle this problem.

13. While genuine attempts are now being made by the Prisoner to settle this problem peacefully, in my view, payment of compensation to settle this issue peacefully should not be seen by both parties as a means of paying out the criminal culpability or the criminal responsibility of the prisoner. The prisoner committed a serious crime against the State, for which he must serve any serious penalties fixed by law to that crime. To not serve the punishment deserved, will see an increase in the commission of sexual crimes. People will see a justice system with no teeth.

4. SENTENCING TARRIFS

14. Judges always refer to and start from a reference point in their sentences. And a good reference point is a decision in a similar but previous decision of either the National or Supreme Court case.

15. Thus in The Supreme Court decision in James Mora Meaoa v The State [1996] PNGLR 280, clearly stated that an offence committed in a breach of trust situation renders the Commission of the offence serious. In so doing it held that a breach of a position of trust is an aggravating factor in sexual offences and warrants a heavier sentence. It also held that position of trust are not limited.

16. I now consider the sentencing tariffs from previous sentences.

17. In The State –v- Damien Maigawi [2002] N2419, the offender pleaded guilty to one count of sexual penetration of a 3 year old victim. He was sentenced to 12 years in prison.

18. In The State –v- Tioti Malana; Unnumbered and Unreported judgement of Lenalia J given on the 12th July 2010, the accused the biological father of the victim was convicted and sentenced to a jail term of twenty five years.

19. In The State –v- Peter Lare (2004) N255, the accused pleaded guilty to one count of sexual penetration of a girl under 16 years old. The accused was in a position of trust, authority and dependency with the victim. He was sentenced to 20 years jail in hard labour less the time spent in custody awaiting trial.

20. In The State v- Joseph Ureap Unnumbered and Unreported judgement of Sawong J dated 12th July 2010, the accused a 44 year old man was charged for sexually penetrating his biological daughter contrary to section 229A of the Criminal Code. He was convicted and a prison sentence of twenty years was imposed upon him.

21. In The State –v- John Ritsi Kutetoa (2005) N2814, Cannings J imposed a sentence of seventeen years in hard labour. In that case there existed a relationship of trust which the prisoner had breached. The victim was the prisoner's step daughter.

22. In The State –v- Siro Waida (2008) N3311, Kandakasi J imposed a jail term of seventeen years on a guilty plea for one count of sexual penetration of the victim who was 14 years old at the time.

23. In The State –v- Bensa Siovoro, Kawi J sentenced a 40 year old Tinputz man to twenty years in prison which was reduced by 4 years to16 years. The prisoner there had sexually penetrated her own step daughter, who at that time was 15 years old. She became pregnant and gave birth to a son.

24. All these cases have one thing in common. They clearly show that the Courts will impose very stringent range of sentences in sexual offences involving young girls. The cases further show that courts can no longer tolerate abuse of young girls and children and sexual exploitation of girls and children between the age of 16 and 18 years.

25. The sentencing tariffs from the cases referred to show a range of sentences for sexual offences from 12 to 25 years. I note that the offence you committed contravenes Section 229E of the Criminal Code (Sexual Offences and Crimes Against Children's) Act.

26. In submissions learned defence Counsel, Mr. Kaluwin submitted that the victim invited this offence upon herself by going with the prisoner when she should have refrained herself. He further submitted that she fully consented to engage in the act of sexual intercourse. He then submitted that a fully suspended sentence of 3 to 5 years should be imposed upon the prisoner. Mr Rangan, the State Prosecutor on the other hand submitted that the sexual offences were now becoming prevalent here on Bougainville. The Court should therefore impose heavy custodial sentences. This should than serve as a deterrent to the Prisoner as well as other would be offenders.

27. In my view to take the approach suggested by defence counsel is to undermine the gravity and seriousness of sexual crimes. Neither should sentences be light and offenders given fully suspended sentences. In my view to punish an offender with a light fully suspended sentence would be to defeat the intention and rationale behind the enactment of the Criminal Code (Sexual Offences and Crimes Against Children's) Act 2002.

28. Parliament passed this Legislation amidst growing concerns over the need to protect women, girls and young children in our country. Parliament then was of the view that this category of our population were rather defenceless and more prone and vulnerable to sexual exploitation and sexual abuse at the whims and desires of sexual predators such as the prisoner here. Furthermore it was concerned that penalties being imposed on offenders by the courts were rather too lenient. It wanted the Courts to impose heavier penalties upon offenders who prey upon defenceless females and commit various sexual crimes upon women and children. Parliament has now confirmed just how serious it is to abuse a position of trust, authority or dependency. This can be gauzed by making reference to the various penalty regimes created for the various sexual offences. For instance section 229E, now carries a maximum sentence of 15 years demonstrating just how serious Parliament was when it made amendments to the Criminal Code. In your case your relationship with the victim was very close. You were supposed to treat the victim a young girl just like your own biological daughters. She was part of your family through your wife who was her elder biological sister. You did not by your conduct respect this. Instead, you exploited and abused this special relationship of trust, authority and dependency for your own selfish carnal desires for the flesh of your sister in law.

29. In my view such abuse of a special relationship of trust, authority and dependency calls for a strong, deterrent and punitive custodial sentence to be imposed.

30. Following the case authorities of the cases cited above, and more particularly taking heed of the warning expressed by the Supreme Court in The State –v- James Mora Meaoa case, it would be remiss of me to impose a wholly suspended sentence of 3-5 years, on what is otherwise a very serious case. Therefore I would impose a custodial head sentence of 13 years upon you to be served in jail in hard labour. Taking into account, the mitigating factors operating in your favour, I suspend 3 years and instead impose a sentence of 10 years upon you to be served in hard labour at the Bekut jail outside Buka town. I will also order that any pre trial custody period be reduced from the 10 years prison sentence. Finally any cash bail monies paid on account of bail are to be fully refunded.

_____________________________________________

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