State v Lisenia [2012] PGNC 318; N5191 (20 September 2012)

N5191

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 645 OF 2011

THE STATE

-V-

ROY LISENIA

Alotau: Toliken, AJ.
2012: 20th September

CRIMINAL LAW – Sentence – Incest – Uncle/Niece – Mitigating factors considered – Plea of Guilty – First time offender – Advanced age of 63 years – Ill health – Expression of remorse - Aggravating factors considered – Close relationship of trust and dependency – Breach of trust - No compensation, reconciliation or personal apology – Head sentence of 5 years less time spent in custody – Balance wholly suspended on conditions - Criminal Code act Ch. 262, s 229A (1)(3).

Cases Cited:

The State –v- Binga Thomas (2005) N2828
The State –v- Waira Nausen (2006) CR 534 OF 2005The State –v- Michael Kilau (2006) N3107
The State –v- Charlie Pupakai (2007) N3184
Goli Golu –v- The State [1979] PNGLR 653
Avia Aihi –v- The State (No. 3) [1988-89] PNGLR 92.
Stanley Sabiu –v- The State (2007) SC866
The State –v- Biason Benson Samson (2005) N2799
The State –v- Peter Lare (2004) N2557
The State –v- Pennias Mokei (No.2) (2004) N2665
The State-v- Brown Kawage (2009) N3696
Allan Peter Utieng v. The State (Unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23 of November 2000) SCR 15 of 2000)

Counsel:

D. Kuvi, for the State
D. Kalandi, for the prisoner

JUDGMENT ON SENTENCE

20th September, 2011

1. TOLIKEN, AJ: Roy Lisenia, you pleaded guilty to the charge that:
   

"...On a date unknown between the 1st of May 2010 and the 31st of May 2010 at Bonakiliki, Milne Bay Province in Papua New Guinea [you] sexually penetrated one Diana Lisenia, a child under the age of sixteen (16) years, then fifteen (15) years old, by inserting his penis into her vagina.

And at the time aforementioned, [you were] in a position of trust depending and authority in that he was the paternity uncle of the said DIANA LISENIA". (sic)

2. This is an offence under Section 229A(1)(3) of the Criminal Code Act (as amended) (the Code) .
   

FACTS

3. The brief facts which you admitted and upon which I am about to sentence you are as follows:
   

"On an unknown date between 1st – 31st of May 2010, you and Diana Lisenia were at Bonahilihili, Logea, Milne Bay Province.

Sometime between 10 a.m. and 2.00 p.m. that day, it rained so you, who is Diana's paternal uncle asked her go into your room to take shelter there. Diana was also sleepy so you told her to sleep in your mosquito net. You then followed her into the room and forced her onto the floor. You pulled her trousers down and slept on her and then inserted your erect penis into her vagina.

After you had sex with her, you told her not to report the matter to anybody because if she did, you will be both locked up by the police. However, sometime later, the matter was reported to the police and you were charged.

At the time of the offence, Diana was only 15 years old while you were 61 years old. The complainant was, hence under 16 years of age and you were in a relationship of trust, authority and dependency over her as you were and are the complainant's elder blood brother".

4. I entered a provisional plea of guilty plea. I confirmed it only after I had read the committal depositions and having satisfied myself that evidence supported the charge and your plea.
   

ALLOCUTUS

5. In your address to the Court, you said that you are now 63 years old and that you have 6 children and 12 grand children. You apologised to the Court, the victim, the family and the community. You said that this is your first offence and you asked for God's forgiveness. You asked for a non-custodial sentence.
   

SUBMISSIONS

6. Your lawyer submitted that you were arrested on 25th January 2011. He confirmed your antecedents; that your wife is of the same age as you, you were only educated up to Grade 6 and that you are a member of the Kwato Church. Counsel submitted that your offence carries a maximum penalty of 25 years but this is subject to the Court's discretion under Section 19 of the Criminal Code to impose a lesser sentence. He further said that the maximum penalty is reserved for the worst category of offences.
   
7. Counsel referred me to several cases to assist the Court. In The State –v- Binga Thomas (2005) N2828, the prisoner was imprisoned for 12 years on a plea of guilty on one count of sexual penetration of a child under the age of 16 years. There existed a relationship of trust, dependency and authority. The victim was 15 years old while the prisoner was 49 years old. The accused admitted in his record of interview that he had sex with the victim 44 times. The Court there also found that sex was consensual and that money was received by the victim.
   
8. In The State –v- Waira Nausen (2006) CR 534 OF 2005, the prisoner was charged with 2 counts under the same provision as in your case. There was consent. Prisoner was sentenced to 4 years for first count and 3 years for second count. Sentence to be served consecutively.
   
9. In The State –v- Michael Kilau (2006) N3107, the prisoner, a teacher was imprisoned for a period of 7 years for sexually penetrating one of his female students who was aged between 16 – 18 years of age. There was an existing relationship of trust, authority and dependency. There were several acts of sexual intercourse resulting in pregnancy and expulsion from school. This was a guilty plea.
   
10. In your case counsel submitted that there are mitigating factors in your favour. These are that you are a first offender. You confessed your offence early and still maintained your confession, you co-operated with police and pleaded guilty thus saving Court's time.
    
11. He submitted that as a dropout, you weren't aware of the consequences of your actions. You are also very old – now 63 years old – hence counsel tendered a letter from the victim's parents requesting the withdrawal of the matter because of your advance age and because of your knowledge regarding the clan's customary land.
    
12. Counsel also tendered a Medical Report which shows that you are suffering from hypertension or high blood pressure. The report recommended that you live a stress-free life. You are very old and sick and had been admitted to the Alotau General Hospital on two occasions already.
    
13. Counsel further submitted that you have shown remorse to the victim and her parents and the community. Based on the foregoing, he submitted therefore, that you should be given a non-custodial sentence particularly taking into account your age and health given the average life span in this country. However, if the Court decides to impose a custodial sentence counsel says that I should impose a sentence of between 5 and 10 years. Any sentence longer than that would not serve any real purpose.
    
14. He relied on The State –v- Charlie Pupakai (2007) N3184 where the accused an 18 year old man sexually penetrated a 7 year old boy. He was sentenced to 19 years imprisonment. Five years of this was suspended on condition that prisoner enter into probation for 3 years with conditions after he is discharged. He was ordered the balance less time in custody.
    
15. Mr Kuvi for the State on the other hand submitted that the maximum penalty where circumstances of aggravation are alleged under Subsection (3) of Section 229A is life imprisonment. However, that is reserved for the worst offences (Goli Golu –v- The State; Avia Aihi –v- The State.
    
16. Counsel submitted that there are aggravating factors. These are:
    
    1. You were in a relationship of trust, authority and dependency;
    2. There is a substantial age disparity of 43 years between you and the victim.
    3. There was lack of consent and in fact you forced yourselfon her'
    4. Offences of this nature and type are very much prevalent in the country.
       
17. Counsel referred me to the Supreme Court case of Stanley Sabiu –v- The State (2007) SC866 which adopted the sentencing guidelines that were espoused by Cannings J. in The State –v- Biason Benson Samson (2005) N2799, when dismissing an appeal against a sentence of 17 years for an offence under Section 229A(2) of the Code
    
18. Counsel also referred to the matter of The State –v- Peter Lare (2004) N2557. There, a 40 year old prisoner was sentenced to 20 years for sexually penetrating his 12 year old adopted daughter. There was a serious betrayal of trust and the accused passed on an STI to the child.
    
19. Finally, in The State –v- Pennias Mokei (No.2) (2004) N2665, the prisoner (33) was sentenced to 15 years for sexually penetrating his 13 year old niece.
    
20. Turning to your case, counsel said yours is a peculiar case because of your advanced age. He refers to the request for withdrawal of the matter by the victim's parents but says the views of the most important person here, i.e. – the victim have not been sought. He urged the Court to consider the emotional stress that the victim had gone through and might be still undergoing.
    
21. He submits that sexual penetration of children deserves deterrent sentences. He, therefore, asks for a custodial sentence and concedes that a sentence in the range suggested by your lawyer i.e. 5 – 10 years will be appropriate subject to the Court's discretion.
    

THE LAW

22. Section 229A (2)(3 ) of the Code provides for the offence under consideration. It provides:
    

"229A Sexual penetration of a child

(1) A person who engages in an act of sexual penetration of a child under the age of 16 is guilty of a crime.

Penalty: Subject to subsection (2) and (3) imprisonment for a term not exceeding 25 years.

(2) ....

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life".

23. Now it has been said in numerous times and cases by this court, and I say it again, that Parliament, in response to an escalating rate of sexual abuse of children, mostly of the most vulnerable and of the weaker sex, changed the law and imposed very stiff penalties to discourage the perpetration of this hideous crime against our children.
    
24. The penalty under Subsection (3) of Section 229A of life imprisonment for cases involving existing relationships of trust, authority or dependency is the people's expression through Parliament of their disapproval and abhorrence of this deviant behaviour which in itself sentences victims to a life time of guilt, worthlessness, despondency and loss of dignity and self respect not to mention the emotional stress that may keep recurring throughout life.
    
25. To my mind, the primary purpose of such penalties for this offence must be to deter and punish offenders, so that our children are fully protected from selfish and inconsiderate members of society and more importantly, those who are expected to care, nurture, provide for and guide them during this most vulnerable phase in their young lives who abuse the trust reposed in them. So how have the courts treated offenders similarly charged with this offence but more particularly those cases where relationships of trust, authority or dependency existed?
    

SENTENCING TREND

26. The two cases that were cited to me by your lawyer i.e. The State –v-Binga Thomas (supra), The State –v- Peter Lare (supra) and The State –v- Pennias Mokei (No.2) (supra), the prisoners were sentenced respectively to 12 years, 20 years and 15 years respectively. In those cases, the court took into account factors such as the age disparity between the perpetrator and the victim, whether sex was consensual and whether the victims were infected with Sexually Transmitted Infections.
    
27. In a more recent case, The State-v- Brown Kawage (2009) N3696, the prisoner was sentenced to 14 years for sexually penetrating his 14 year old niece. There were factors of aggravation as well as factors mitigating the offence.
    
28. As submitted by Counsel for the State, the Supreme Court in Stanley Sabiu –v- The State (supra) approved a total of 12 considerations which is viewed as useful in sentencing for sexual offences against children. These include amongst others, the age difference between the offender and the victim, how far below the age of 16 the victim was, whether there was consent, how far removed from the victim the offender is, whether there is an existing relationship of trust, authority or dependency, whether it was a one off incident, whether the prisoner co-operated with the police, whether the offender had made reparations and peace with the victim or paid compensation, his plea on trial, expression of remorse, and prior convictions.
    

YOUR CASE

29. Now turning to your offence, viewed objectively, I must say that your offence is pretty serious because of the existence of several factors mentioned in Stanley Sabiu –v- The State (supra). It would attract a sentence in the same range as those I have reviewed above i.e. around 10 – 15 years.
    
30. What is an appropriate sentence for you depends very much on the peculiar circumstances of your case. This is settled law. When applying what I have considered above to the circumstances of your case, I shall consider firstly those factors which I view as mitigating your offence.
    
31. You pleaded guilty to the charge, thus saving time and money for the State. You admitted your crime from the outset or beginning and this is your first offence. I also take into account that you are advanced in age – 63 now – and that you are not in the best of health. These are factors in your favour.
    
32. On the other hand, the victim is your niece, hence, the existence of a close relationship of trust, authority and dependency. There is an age difference of 43 years between you and the victim and there was no consent. There was some force applied when you subdued the victim before you penetrated her.
    
33. You have expressed some remorse and the victim's parents had written to have your case to be withdrawn out of concern for your age and the knowledge you have for your customary land which might be lost if you were imprisoned.
    
34. Despite this, there is nothing before me, whether from you or your counsel to suggest that you have done anything tangible to make reparations or reconcile with the victim by way of a personal apology to her and your family or by way of compensation. Apologising to the victim when she is not present in Court is meaningless. An apology will only mean something if it is offered personally to the victim accompanied by compensation as is the norm in this country. (Allan Peter Utieng v. The State (Unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23 of November 2000) SCR 15 of 2000)
    
35. While there is no evidence of any physical injury to her this does not mean that she has not been scarred emotionally. The betrayal of the trust she had in you as her elder uncle, someone she looked up to and depended upon and the loss of dignity among the family, village, clan and her peers is something that will probably forever haunt her for all we know.
    
36. Your lawyer submitted that because of your lack of education – being a Grade 6 drop-out, you weren't aware of the consequences of your action. I refuse to give this suggestion any serious thought because getting an education or the level of education one attains has no bearing at all on this kind of offence. You do not need to get a high school education to be able to know that having sex with a minor let alone your niece - paternal or maternal - is wrong and has always been wrong in Melanesian culture. It is also morally wrong and the law merely enforces this. So, what would be an appropriate sentence for you?
    
37. I am of the firm view that you should be sternly punished for personal as well as general deterrence because as counsel for the State says, crimes of this type have become very prevalent. This can be seen from the number of sexual offences that are on the Alotau Crime List where homicides and sexual offences dominate.
    
38. I, however, take full recognizance of your age and health and I would agree with what your lawyer said that a long prison term may probably not serve any useful purpose. One other factor that can be taken to mitigate your offence is that victim was 15 years at the time of the offence hence a year shy of the age of consent i.e. 16 years.
    
39. In the circumstances, I, therefore, impose a head sentence of five years. From this, I deduct 1 year, 7 months and 21 days from your sentence, leaving a term of 3 years, 4 months and 9 days.
    
40. The balance of 3 years 4 months 9 days is wholly suspended on the condition that you shall enter into your own recognizance without surety to be of good behaviour and to keep the peace for a period of three years.
    
41. In the event that you breach your recognizance, you shall be called upon to appear before the Court to receive judgement to serve the whole period of your suspended sentence.
    

Orders accordingly.
____________________________________________________________

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