State v Tugumar [2013] PGNC 219; N5377 (16 August 2013)

N5377

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CR. 333 of 2010

THE STATE

V

ANTON TUGUMAR

Wewak: Geita AJ
2013: 9th & 16th August

CRIMINAL LAW – Sentence – Guilty plea – Section 229E Criminal Code Act as amended- Abuse of trust, authority or dependency.

CRIMINAL LAW – Guilty Plea – Deposition Evidence – Mitigating and Aggravating circumstances – First time offender- no serious assault- weapon used- Violation of existing relationship of trust, authority and dependency- Violation of fundamental breach of parents in the upbringing of children-Constitution.

CRIMINAL LAW - Pre sentence report – part custodial sentence refused- Convicted-Sentenced to 10 years less pre trial custody of 17 months –

Cases cited:

Goli Golu v The State [1979] PNGLR 653
John Kalabus v The State [1988] PNGLR 19
The State v Kutetoa (2005) N2814.
The State v William Eiya CR 1283 of 2006, unreported 25 June 2008.
The State v Penias Mokei (No.2) (26.8.04) N2635,
The State v Esrom (2006) N3054
The State v Philip Saun CR 851 2002, unreported June 7
The State v Joe Simi N4434
The State v Esrome Asupa N4540

Counsel:

Mrs. Gore, for the State
Mr. Francis Fingu, for the Prisoner

DECISION ON SENTENCE

16 August, 2013
1. GEITA AJ: The prisoner Anton Tugumar pleaded guilty to one count of sexual penetration of a child (his adopted daughter) with whom the person has an existing relationship of trust, authority or dependency contrary to s.229E of the Criminal Code Act as amended.

2. This offence attracts a maximum penalty of 15 years imprisonment however Section 19 (1) (a) (b) of the Criminal Code gives courts power to impose a lesser sentence. The prisoner is currently serving sentence for another crime. He was committed on 12 July 2011. I have taken judicial notice of this commitment but will not consider this as a prior conviction against him for obvious reasons.

The Facts
3. The relevant facts put to you during your arraignment and the agreed facts by the prosecution and your lawyer on the depositions for the plea of guilty with your consent are these. On Friday 1st January 2010 between 4 pm and 5 pm you lured your adopted daughter who was 16 years at the time into the bushes at the pretext of cutting some bamboo poles. Whilst you both were alone in the bush you threatened the complainant with a small pocket knife, undressed her and sexually penetrated her despite her protests and cries. The victim pleaded to you as her "papa" to stop what you were doing to her as you had raised her from childhood and was your adopted daughter. However having satisfied your greed and lust you threatened her not to tell anyone including her mother or else there would be problems for her at home. The victim having felt very miserable about the incident immediately reported the matter to her biological mother resulting in your arrest and prosecution.

Allocutus
4. During the administration of allocutus or when you were given the opportunity to speak on the question of penalty you admitted the wrong committed and asked the court for leniency on you. You said you have done wrong to your daughter and said sorry to your two other daughters. You told court that you will not repeat the same crime again and asked court to take into account your old age. You further told court that you have changed your life and will be baptised on Sunday week.

Antecedents
5. There are no prior convictions

Extenuating circumstances
None
Aggravating Circumstances

6. The complainant suffered emotional stress as a result of the crime.

7. The victim was your adopted daughter.

Mitigation Circumstances
8. The following are the mitigating factors in your favour:

1. No prior convictions, first time offender

2. No physical injuries caused to the complainant

3. Prisoner was alone and not in company of others

4. Guilty plea though at late stages due to resolution on issue of consent

5. Old age (51)

6. Prisoner currently serving sentence of 13 years

Defence submissions

9. In his oral submissions Defence Lawyer Mr Francis Fingu submitted that the case was not of the worst type and does not warrant the imposition of the maximum 15 years jail sentence. In light of the prisoners guilty plea, no prior conviction and no physical harm caused to the complainant he submitted that the Court should consider a head sentence between 5-7 years as a starting point with suspended sentence. Mr Fingu invited the court to also consider sentencing options available under Section 19 (6) Criminal Code Act and your Pre sentence report. The victim's maternal uncle's willingness to resolve by way of some amount of compensation and the victim's willingness to forgive were also advanced as mitigation factors. Any prolonged incarceration in addition to what's already being served would impact on his reintegration into the community if a longer prison term is imposed. The following cases were referred to me in support of his arguments:

1. St v Esrom 2006 N3054.	Victim eldest daughter- Charge under s.229 A. Max life-one of sexual intercourse	12 years sentence, 2 years suspended
2. St v Philip Saun CR 851 2002Unreported June 7 2013	Victim a relative-	10 years sentence

State submissions
10. State Prosecutor Mrs Gore drew the attention of this Court to the prisoners pre sentence report showing the non payment of compensation which must go against the prisoner. Furthermore since the commission of this offence there were no attempts of reconciliation. She highlighted the large age gap between the victim and the prisoner who at the time was 16 years; victim was his adopted daughter and the presence of breach of trust of dependence to be aggravating factors against the prisoner. In support Mrs Gore referred me to two reported cases which are summarised in this manner:

1. St v Joe Simi N4434	Victim 16 yrs-grade 6 student-offender uncle-10 years old at time of offence	Sentence of 10 years-reduced to 7 years.
2. St v Esrome Asupa N.4540	Victim 15 years old-sister in law – breach of trust, dependence.	Sentenced to 10 years

11. As can be seen from the cases referred to me by both lawyers, prison sentences still average around 7 years to 10 years for most cases.

12. What is the law on abuse of trust, authority or dependency? Section 229E Code has this to say:

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

13. Section 6A Code describes relationship of trust, authority or dependency in this way:

(1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where –

(a) t>a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) thesed has care or custody of the complainant; or

(c) the accused is the cohe complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor or the complainant; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a heath care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care or control.

Pre- Sentence Report

14. A pre sentence report prepared and submitted on your behalf by the Probation Officer Ms. Kutan Poniou on 14/8/2013 amongst other recommendations suggest that you were no real threat to the community and should be placed on part custodial probation due to your advanced age and that you are currently serving sentence of 14 years for another crime. Ms Kutan's report cited the strong views of the victim and other interested community members here in Wewak which lend towards leniency for the prisoner despite the seriousness of the offence.

Decision of the court
15. The first issue is whether the offence committed by the prisoner is of the worst type and whether the court should impose the maximum prescribed sentence. I agree with defence lawyer Mr Fingu that although series, this attack was not the worst type. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus 1988 PNGLR 193)

16. The second issue is framed in this question and that is what an appropriate sentence in your case is? I have had the benefit of submissions from both lawyers on all relevant issues. I also have had the benefit of a pre sentence report presented to me. In deciding on what the appropriate sentence I should impose on you and whether parts of your sentence should be suspended, will depend on points favourable to you and points against you.

17. The law on sexual offences against children is founded in s.229A to s.229V of Criminal Code Act as amended. The offences contained therein range from between 5 years – 25 years, subject to Section 19, to imprisonment for life.

18. Having had the benefit of accessing two National Court judgments in which amongst other crimes the existing relationship of trust, authority and dependency were violated, prison terms ranging from 17 years to 18 years were imposed. (The State v Kutetoa (2005) N2814. Cannings J; The State v William Eiya CR 1283 of 2006, unreported 25 June 2008. Davani J.)

19. His Honour Cannings J in the case of The State v Penias Mokei (No.2) (26.8.04) N2635, said amongst other considerations in sentencing offenders on charges of sexual abuse under the Act the need to consider "the level of breach of trust" existing at the time. The closeness of that relationship of trust between the accused and the victim, increases the seriousness of betrayal of trust, hence warranting a much higher penalty. In most Papua New Guinean societies you and your daughter's relationship would be seen as that of father/adopted daughter or in the words of the victim the prisoner was referred to as "papa". Be that as it may, the crime is akin to incest, hence very serious. His Honour Cannings, J. sentenced the offender to 15 years imprisonment. At the time of the offence, the complainant was aged 13 years and the offender was 33 years old. There was no breach of existing relationship of trust. The prisoner was a first offender. He pleaded guilty. I too adopt and apply the principles in that case.

20. On a random selection of previous National Court cases relating to sexual offences against children including those referred to me this morning, it is evident that sentences appear to be on an upward trend. One possible reason of this trend is the prevalence of this crime over time. The case before me is no different.

21. In your case there was breach of existing relationship of trust. The offence infringes and violates the fundamental duty of fathers and mothers to care for their children and raise them up in the manner expected by the Constitution and the law. I make special allowance for your guilty plea, no previous convictions, you are remorseful and your pleas to me that you will be baptised soon. After having considered all the information before me in your favour and against you I have come to the conclusion that a head sentence of 10 years would be the appropriate starting point in your case. I do not consider it appropriate under the circumstances to invoke my powers under s 19 (1) of the Criminal Code Act to suspend or put you on a non custodial sentence in view of the seriousness of the type of crime. The sentence I now impose upon you is as follows:

1. You are sentenced to 10 years imprisonment in hard labour,
   
2. I order a deduction of 17 months for your pre trial custody from 20 January 2010 up to 12 July 2011,(Your commitment)
   
3. I impose a sentence of 8 years 7 months.
   

Orders accordingly.

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