State v Sakias [2011] PGNC 37; N4238 (23 March 2011)

N4238

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR. 1609 of 2010

THE STATE

V

BEN SAKIAS

Kokopo: Sawong, J.
2011: 21 & 23 March

CRIMINAL LAW –Sentence – Plea of guilty – Persistent Sexual Abuse of child, Section 229 D (1) & (6) - Child aged 13 years – 12 years imprisonment.

Cases Cited
The State –v- J.B. (2007) N3224
The State –v- Kuyaps Toki Jonathan (2008) N3315,
The State –v- Rodney Kamau, (Unreported and Unnumbered judgment

Counsel
Ms V. Mauta, for the State
Ms. A. Hambunaka, for the Accused

SENTENCE

23 March 2011

1. SAWONG, J.: The accused pleaded guilty to one count of persistent sexual abuse of a child under the age of 16 contrary to Section 299 D(1) and (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. These offences were committed between 1st of April 2009 and the 30th of April 2009 and 1st of January 2010 and the 30th of January 2010.
   
2. The brief facts are as follows: The prisoner and the victim are closely related. The prisoner is the uncle of the victim. The evidence shows that the parents of the girl left her with the prisoner at their block at Warangoi for him to look after and care for her. Whilst there in April 2009, the girl was suffering from malaria and was sleeping. She covered herself with a towel as she was sleeping. As she was sleeping, the prisoner came and removed the towel and then proceeded to have sexual intercourse with her. She was aged 14 years at that time. Subsequently, in January 2010, he once again had sexual intercourse with the victim as she was sleeping.
   
3. The evidence in the depositions and in particular the record of interview, the prisoner admits to numerous instances of sexual intercourse with the girl. As a result of the persistent sexual abuse of the girl, she became pregnant and gave birth to a small girl. Naturally as a consequence she also stopped going to school.
   
4. Section 229 D(1) and (6) of the Criminal Code describes the penalty for this offence. It reads:
   

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

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

...

(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."

5. Pursuant to s.229 D (6) of the Criminal Code, if one or more of the abuse involves an act or acts of sexual penetration of a child, subject to Section 19, the maximum sentence is life imprisonment, otherwise the maximum sentence is 15 years imprisonment. In this case, because the case involves actual sexual penetration, the maximum sentence that could be imposed is life imprisonment.
   
6. In The State –v- Kuyaps Toki Jonathan (2008) N 3315, my brother Kandakasi, J dealt with a similar case. Briefly in that case the prisoner persistently and consistently committed sexual penetration of a girl who was then aged 13 years old. There however, the prisoner used threats of violence to commit the offences. As a result of the sexual activities of the prisoner, the girl became pregnant. There the prisoner also pleaded guilty. In that case, the trial judge imposed a sentence of 18 years imprisonment.
   
7. In the State –v- Rodney Kamau, (Unreported and Unnumbered judgment, Kokopo, Lenalia J., 22nd October 2010, CR 531 of 2010), the trial judge imposed a sentence of 16 years imprisonment but he suspended four years of that leaving a balance of 12 years to serve. In that case, the prisoner was the adopted father of the victim. He was charged and pleaded guilty to a count of persistent sexual abuse contrary to Section 229 D (1) & (6) of the Criminal Code Act.
   
8. In the State –v- J.B. (2007) N 3224, the offender pleaded guilty to two counts of persistent sexual abuse contrary to Section 229 D of the Criminal Code. There the offender sexually penetrated his 17 year old daughter on two occasions over a period of six weeks and also sexually penetrated his 15 year old daughter on at least two occasions, when she was 13 years and 9 months of age over a period of one year and 10 months and infecting her with sexually transmitted diseases. There the learned trial judge, imposed a sentence of 10 years imprisonment in relation to the first count and 16 years imprisonment on the second count. The sentences were made cumulative. However, bearing in mind the totality principle of sentencing, the trial judge adjusted the sentences and reduced it to twenty years imprisonment. That case can be distinguished on a number of factors. The first is that the offender sexually abused two different victims.
   
9. In order to arrive at an appropriate sentence I must consider matters which are both in your favour and which are against you. Your lawyer submitted that there are several mitigating factors that I should take into account in your favour.

The essence of her submission was that taking into account in your favour your personal antecedents and the presence of several significant mitigating factors, a sentence of between 10 to 20 years imprisonment should be imposed.

10. Ms. Mauta, for the State submitted that whilst there are mitigating factors, the presence of several aggravating factors makes your case a serious one and that a sentence of between 14 to 18 years imprisonment would be appropriate.
    
11. You are an unsophisticated villager in that you only completed Grade 6 in your education. Whilst I note that you had for a short time been employed as a driver, you have since left that employment in about seven years ago and have been living at your block caring for your old mother and your block at Warangoi. You are a first offender.
    
12. In your favour, I take the following mitigating factors into account. Firstly, you are a first offender. You are aged 28 years old but up until you committed the offence, you have been a good law abiding citizen. Secondly, you have pleaded guilty. Your plea of guilty is consistent with your co-operation with the police where you readily made admissions of committing this crime. This has saved the State and this court time and resources in conducting a trial. But more important in my opinion, your plea of guilty has saved the girl from coming to court and giving evidence in front of complete strangers and having to be cross examined by your lawyer and relieving the trauma and the shame of what you did to her. Thirdly, you have expressed remorseness for your conduct. I accept also that no acts of actual physical violence or threats of violence were involved during the cause of the commission of the crime.
    
13. On the other hand there are serious aggravating factors which go against you. First is that, there was a large age difference or disparity between you and the girl. When you initially committed the offence, she was 13 years old and you were 27 years old, an age difference of 14 years. She was a child when you molested her. Secondly, there was in existence a relationship of trust, authority or dependency between you and the girl, in that you were her uncle and she was your niece. The victim was the daughter of your half sister. Her parents had left her in your care and had gone away to another province. You had broken that trust and abused it.
    

Thirdly, you have repeated the commission of the offence. The evidence shows that this was not a one of incident but there were consistent abuses of sexual nature over the period.

Fourthly, the girl became pregnant and has since given birth to a baby. The baby is yours and as a result of your activities, her future is now uncertain because your actions have affected her education and she has now left uneducated. It would be very hard for her in the future.

Finally, the offence is a prevalent one in that sexually related offences involving very young victims in this province has become so prevalent. The offence is not only prevalent in East New Britain but is becoming prevalent all over the country.

14. In the final analysis, weighing and taking into account all those factors and for the reasons I have given I consider that a custodial sentence would be appropriate.
    
15. In the circumstances of this case, I consider that a sentence of 12 years imprisonment would be appropriate. From that I deduct the period of five (5) months eleven (11) days, leaving a balance of eleven (11) years six (6) months & nineteen (19) days IHL.
    

__________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused