State v Aparti [2011] PGNC 68; N4326 (21 June 2011)

N4326

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 48 OF 2010

STATE

V

DANNY APARTI
Accused

Wewak: Ipang AJ
2011: 6, 10, 16 & 21 June

CRIMINAL LAW – Criminal Code s. 229D(1) – sentence – plea of guilty – persistent sexual abuse on his own natural daughter age 17 years old – offender aged 38 years old – use of bush knife, rubber hose coupled with assault and threats – three (3) incidents of sexual abuse – sentence of 13 years.

Cases Cited

State v Pennias Mokei (No. 2) (2004) N2653
State v Francis Angosiven (2004) N2670
State v JB CR No. 1529 of 2005 N3224
State v Twea Kolwin Towin (2006) N3053
State v Kepas Eremas CR No. 69 of 2007 N3192
State v Ben Sakias CR No. 1609 of 2010 N4238

Counsel

Mr. F. Popeu, for the State

Mr. J. Kolkia, for the Offender

DECISION ON SENTENCE

21 June, 2011

1. IPANG AJ: This is a decision on the sentence for the offender Danny Aparti who pleaded guilty to the offence of persistent sexual abuse of a child.
   
2. The facts of this case are as follows:-
   

Incident one (1) – dated 9 June 2009

(a) On the 8 June, 2009 the victim 'JD' who is the natural daughter of the offender, aged 17 years old went to Apangai No. 3 village to overnight and to travel down to Boram General Hospital in Wewak as she was an appendix patient. The offender realized the victim was not in the house, left the next day 9 June, 2009 to get her back in which he did. On the way back to Magapita village, the offender sexually penetrated the victim. At that time, there existed a relationship of trust, authority and dependency namely that of a father to his natural daughter.

Incident two (2) – dated 20 June, 2009

(b) On the 20 June, 2009 the victim's mother who is the wife of the offender took the victim's small sisters and went for church service at the SDA Church. The victim went with the mother and her sisters but came back and slept in the house. The offender came and sexually penetrated her. At that time, the victim was aged 17 years. At that time the offender breached an existing relationship of trust, authority and dependency of a father to his natural daughter.

Incident three (3) – dated 21 June, 2009

(c) The victim stayed with close relatives at Brikiti village and on Sunday the 21 June, 2009 the offender armed himself with a bush knife and a rubber hose went to bring the victim back to the house. The offender was angry and assaulted the victim and got her to live Brikiti village. On the way to Magapita village, the offender sexually penetrated the victim. The victim was 17 years old at that time. The offender has breached an existing relationship of trust, authority and dependency namely that of a father to his natural daughter.

3. I entered a provisional plea of guilty and after reading the committal court depositions, I 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 Act, as charged.
   

Allocutus

4. I administered the allocutus to the offender and invited him to give any comments that the Court would take into account when deciding his penalty. The offender said;
   

"I am the only one in the family. I have four (4) children. Two (2) of them are in school. No one to take care of them. I have six (6) gardens of cocoa and two (2) gardens of vanilla. I ask for Court's mercy and probation."

Pre-Sentence Report (PSR)

5. The offender Danny Apati is married to Sussie from Urita village in the Bonohoi area of Bumbita/Muhian LLG. The couple has four (4) children; the eldest daughter is the victim in this case. The children all girls are of ages of 20, 11, 8 and 3. The offender's wife Sussie was shocked when she learnt of the offence. The offender is illiterate simple villager who sustains his family through gardening and cash cropping. The offender has no prior conviction.
   

Submission by Defence Counsel

6. Defence counsel submitted that the Court takes into account considerations set out in State v Pennias Mokei (No.2) (2004) N2653. These considerations include; the trust relationship; the age difference between the prisoner and the victim, the number of the offences and whether threat or force was used, whether the victim sustained injuries, if the sexual act was consensual and the behavior or attitude of the offender after the commission of the offence and during investigations.
   
7. In State v Francis Angosiven (2004) N2670, Kandakasi, J convicted the prisoner after a trial for sexually penetrating his 15 year old biological daughter by threatening her with a knife. The prisoner was sentenced to 7 years imprisonment.
   
8. In State v Twea Kolwin Towin (2006) N3053, the offender aged 39 years old, sexually penetrated his 15 year old biological daughter. He pleaded guilty and was sentenced to 6 years imprisonment.
   
9. The cases referred to the court by the defence counsel relate to offence of incest under section 223 of the Criminal Code (Sexual Offences & Crimes Against Children) Act, 2002. The current case involved the offence of persistent sexual abuse and the penalty prescribed is the maximum of 15 years or subject to sub-section (6), life imprisonment. See section 229D(1) and (6) of the Criminal Code (as amended).
   

Submission by State Prosecutor

10. The state prosecutor submitted that although the pre-sentence report (PSR) is favourable to the prisoner, the factor against the report is that all persons interviewed are all close relatives of the prisoner. The prosecutor submitted that they are his cousins, uncle and the sisters of the prisoner and although the wife was interviewed, it was in the presence of the prisoner's relatives. Prosecutor also submitted that the victim herself was not interviewed and even though advance notice was given, the victim was not present to be interviewed. Prosecutor submitted that this makes the PSR bias.
    
11. State prosecutor said the offence of persistent sexual abuse under section 229D, subsection (1) and sub-section (6) carries a maximum sentence of life, subject to section 19. He said that each case will however depend upon its own peculiar set of facts when it comes to sentencing.
    
12. This case involved three (3) instances of abuse of trust, authority and dependency, submitted the prosecutor but he said all these incidents occurred within the month of June. Prosecutor said the circumstances of the case and the fact that it was reported in a short space of time, coupled with the victim running away and been beaten up prior to each unlawful act demonstrated the victim's non-consent to sexual intercourse.
    
13. In the case of State v Eremas Kepas CR No. 69 of 2007 N3192, Cannings, J drew up some useful guidelines for consideration when deciding on appropriate sentence. I do take these guidelines into consideration.
    
14. In State v JB CR No. 1529 of 2005 N3224, Lay, J sentenced a man to 10 years and 16 years respectively for charges of persistent sexual abuse of his two (2) daughters aged 17 years and 15 years. His Honour then applying the totality principle reduced the sentence to 20 years in total.
    
15. In State v Ben Sakias CR No. 1609 of 2010 N4238, Sawong, J sentenced the offender to 12 years for sexually penetrating his 13 years old niece.
    
16. In order to arrive at an appropriate sentence for the offender, I shall consider matters which are both in the offender's favour and which are against the offender. I adopt the approach by Cannings, J in State v Eremas Kepas (supra). In that I find the following existed in the present case.
    

FACTORS
NO	MITIGATING	AGGRAVATING
1	Guilty plea – saves Court's time and state's costs for putting up trial.	Offender aged 38 years and victim 17 years. Age difference of 21 years
2	First time offender	Serious breach of trust
3	Victim need not to come and testify in Court.	Victim did not consent to acts of sexual intercourse
4		No genuine remorse
5		Use of knife and rubber hose
6		Denied commission of offence at Police Station / ROI

17. I do consider the above factors going for and against the offender. I do take note of the offender's antecedents and the statements given in allocutus. I noted that the offender did not spell out his attitude towards the crime he has committed. All he said was his concern for his children and his cocoa and vanilla gardens. He did not apologize to the victim, his wife, his other children and relatives.
    
18. The offender has committed this offence on three (3) different occasions all within short period of time within the month of June, 2009. During one or two of these occasions, offensive weapons like bush-knife and rubber hose were used by the offender to achieve commission of the offence coupled with use of threats. I can't imagine or think of any logic behind offender's actions. We are not in the time of Adam and Eve. We've gone pass that. We are in the new millennium. The churches, the early missionaries have implanted the "Christianity seed" in this country and through the Constitution, we declare our country to be a Christian country – where are we going now when a father is persistently and sexually abusing his very own blood daughter like this offender in this Christian country of ours?
    
19. My view is that the offenders of persistent sexual abuse need to be severely punished and to be made to realize the grave irreparable damage, they cause upon their daughter(s). Thus, the victim in this case has this message for her father, the offender, "I will have no mercy on my father of any outside settlement as his act on me is a life time injury on me as a daughter of his own blood."
    
20. This offence is a prevalent one within Maprik District like in East New Britain Province and may be all over the country. A drastic sentence should be imposed to save daughters from their abusive fathers.
    
21. In the final analysis, taking all the factors and the reasons I have given, I consider that a custodial sentence would be appropriate. I am of the view that Pre-Sentence Report (PSR) does not warrant suspension of any part of the sentence.
    

Sentence

22. Danny Aparti having been convicted of the crime of persistent sexual abuse of your own daughter (17 years old) I sentence you as follows:
    

Length of sentence imposed	13 Years
Pre-Sentence period to be deducted	1 year, 10 months
Resultant length of sentence to be served	11 years,One (1) month
Amount of sentence suspended	Nil
Time to be served in prison	11 years, One (1) month

____________________________________

Public Prosecutor: Lawyer for the State

Paul Paraka Lawyers: Lawyer for the Accused