State v Dantale [2013] PGNC 230; N5387 (17 October 2013)

N5387

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 103 0F 2013

THE STATE

V

LUCAS DANTALE

Madang: Cannings J
2013: 19 August, 1, 17 October

CRIMINAL LAW – sentence – guilty plea – two counts of engaging in act of sexual penetration of a child under the age of 16 years – 30-year-old male offender/13-year-old female victim – circumstances of aggravation: existing relationship of trust and authority: teacher-student relationship.

The offender, a schoolteacher, pleaded guilty to two counts of engaging in an act of sexual penetration with a child under the age of 16 years, a 13-year-old pupil, and was before the Court to be sentenced.

Held:

(1) When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle. The following notional sentences were passed: (a) count 1: 8 years, (b) count 2: 10 years, resulting in a total potential sentence of 18 years imprisonment.

(2) The offences were committed in separate incidents, so the sentences should be served cumulatively. However, in view of a favourable pre-sentence report, the totality principle justified a reduction of the total sentence to 12 years imprisonment. The pre-sentence period in custody was deducted. None of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Jack Mari v The State (2007) SC1147
Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State (2006) SC890
The State v Biason Benson Samson (2005) N2799
The State v George Taunde (2005) N2807
The State v Ian Unawing CR No 392/2005, 19.08.05
The State v Johnson Roman CR No 1924/2005, 23.03.07
The State v Penias Mokei (No 2) (2004) N2635
The State v Titus Soumi (2005) N2809
The State v Willie Dominic (2005) N2938

SENTENCE

This is the sentence for an offender convicted of two counts of engaging in an act of sexual penetration with a child under the age of 16 years.

Counsel

M Pil, for the State
S Tanei, for the offender

17th October, 2013

1. CANNINGS J: Lucas Dantale has pleaded guilty to two counts of engaging in an act of sexual penetration with a child under the age of 16 years. The offender was 30 years old and working as a teacher at a school in Madang Province when he committed the offences against one of his pupils, a 13-year-old girl, "V", in September 2012. V was the daughter of another teacher at the same school. The offences were committed in the school residential compound. On the first occasion the offender approached V while she was alone in her house, forcefully removed her clothes and penetrated her vagina with his penis. The second offence was committed outside, in a clump of tall grass next to a garden, in similar circumstances: the offender forcefully removed the victim's clothes then penetrated her in the same way. He has been convicted of two counts of engaging in an act of sexual penetration with a child under the age of 16 years under Section 229A(1) of the Criminal Code, in circumstances of aggravation under Section 229A(3) of the Criminal Code, in that at the time of the offence there was an existing relationship of trust and authority between the offender and the victim: he was a schoolteacher and she was his pupil, which is included in the definition of such a relationship in Section 6A(2)(d) of the Criminal Code. This is the judgment on sentence.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender said:

I know what I did was wrong. I confessed everything to the Police. I am truly sorry for what I have done. In the eyes of the Creator and to the victim and her family and to the school I say sorry. I tried to overcome temptation but I did not succeed. I have made a grave mistake. This is my first and last time to face the law. I have a young family to care for and I am willing to compensate the victim. I ask for the mercy of the Court.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). The depositions show that the offender co-operated with the police and made substantial admissions in his police interview, which was conducted in October 2012, the month following commission of the offences.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service. Lucas Dantale comes from Talim village, Madang Province. He is now aged 31 and is married with two children. His marriage is stable and his wife still strongly supports him and loves him despite commission of these offences and regards him as an excellent husband and father. He has a grade 12 school education and has graduated as a teacher from Madang Teachers College. He has a 10-year service record as a teacher. The head teacher of the school where he committed the offences speaks very highly of him: he was a hard working and committed teacher, well-liked by teachers and students. He left the school of his own accord following revelation of these incidents but as far as the school is concerned he would be welcome back, if that were possible. The offender's Ward Councillor has expressed similar sentiments in an affidavit.

6. The report states that the offender was financially secure when he was employed as a teacher but he is presently without a regular income. His Four Square Church pastor also speaks highly of him and says that he is highly regarded in the local community. The offender has recently joined the Seventh-Day Adventist Church. The victim and her mother were unable to be contacted to gauge their attitude to the offender as they have left the school and moved to another province. The report concludes that he is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Tanei highlighted that no violence was used against the victim and she did not acquire any sexually transmitted disease, the offender acted alone and he has no prior convictions, he has cooperated with the police and made an early guilty plea, he is willing to compensate and reconcile with the victim and he has expressed remorse. A total sentence of no more than eight years imprisonment, fully suspended, would be sufficient.

SUBMISSIONS BY THE STATE

8. Mr Pil submitted that this was an extremely serious case because of the violation of trust between a teacher and his pupil. The sentence should be at least ten years, with no suspension.

DECISION MAKING PROCESS

9. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty for each offence?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. Engaging in an act of sexual penetration with a child under the age of 16 years in circumstances of aggravation that have been charged and proven in this case results under Section 229A(3) of the Criminal Code in a maximum penalty of life imprisonment. The Court of course has a discretion to impose less than the maximum term and suspend part or all of the sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS THE STARTING POINT FOR EACH OFFENCE?

11. I regard the starting point for each offence as 20 years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

12. It is useful to consider sentences imposed in previous cases involving children between the ages of 12 and 16, which are summarised in the following table.

SENTENCES UNDER SECTION 229A: CHILDREN AGED 12 –16

No	Case	Details	Sentence
1	The State v Penias Mokei (No 2) (2004) N2635, Wewak	Trial – offender aged 33 – victim, a girl, aged 13 – offender was the girl's uncle – no consent – no aggravated physical violence – isolated incident –offender cooperated with police – expressed remorse – no compensation attempted – first offender.	15 years
2	The State v Biason Benson Samson (2005) N2799, Kimbe	Guilty plea – offender aged 17 at time of offence – victim, a girl, aged 13 – lack of consent – no aggravated physical violence – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	5 years
3	The State v George Taunde (2005) N2807, Buka	Guilty plea – offender aged 33 at time of offence – victim, a girl, aged 13 – uncle/niece relationship – lack of consent – no aggravated physical violence – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	10 years
4	The State v Titus Soumi (2005) N2809, Buka	Guilty plea – offender aged 30 at time of offence – victim, a girl, aged 14 – offender married to complainant's older sister – consensual sex – no physical violence – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	2 years

5	The State v Willie Dominic (2005) N2938, Madang	Guilty plea – offender aged 17 at time of offence – victim, a girl, aged 14 – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	4 years
6	The State v Ian Unawing CR No 392/2005, 19.08.05, Bialla	Guilty plea – offender aged 26 at time of offence – victim, a girl, aged 13 – no relationship of trust – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	8 years
7	The State v Johnson Roman CR No 1924/2005, 23.03.07, Kimbe	Guilty plea – offender aged 30 at time of offence – victim, a girl, aged 15 – no aggravated physical violence – no relationship of trust – offender cooperated with police – expressed remorse – no compensation attempted – first offender.	5 years
8	Jack Mari v The State (2007) SC1147, Lae	Guilty plea – mature aged offender – 14-year-old girl – father/stepdaughter relationship – review of original sentence of 20 years – sentenced reduced by Supreme Court.	15 years

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

13. When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle.

14. The notional sentence for the first offence will reflect the mitigating and aggravating factors. As for the mitigating factors I accept most of those highlighted by Mr Tanei:

• no physical violence was used against the victim;
• she did not acquire any sexually transmitted disease;
• the offender acted alone;
• he has no prior convictions;
• he cooperated with the Police;
• he made early admissions;
• he had pleaded guilty;
• he entered an early guilty plea;
• he is willing to compensate and reconcile with the victim;
• he has expressed genuine remorse;
• he has cooperated with the Court by complying with bail conditions and attending Court whenever required.
  

15. The aggravating factors are:

• the extreme violation of trust between teacher and pupil;
• there was no consent;
• there was a large age gap, of 17 years, between the offender and the victim.
  

16. There are more mitigating factors than aggravating factors. What saves the offender from a sentence of around 20 years is his public and genuine expression of remorse and shame at what he did, his co-operation with the police and, of course, his guilty plea. I impose a notional head sentence for the first offence of eight years imprisonment.

17. The second offence is more serious. It was committed two weeks after the first offence, by which time the offender had had time to reflect on what he had done and take steps to ensure that he did not repeat it. The sentence is ten years imprisonment.

18. The total potential sentence the offender is facing is:

8 years (count 1) + 10 years (count 2) = 18 years imprisonment.

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

19. The general rule is that if two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88). Here, there was one victim but two offences separated in time by two weeks, so the sentences should be served cumulatively.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

20. I now look at the total sentence that the offender is potentially facing (18 years) to check if it is just and appropriate having regard to the totality of the criminal behaviour involved (Acting Public Prosecutor v Konis Haha [1981] PNGLR 205). I consider that a substantial reduction, of six years, will lead to a sentence that more accurately reflects all the circumstances in which these offences were committed. The total sentence will be 12 years imprisonment, apportioned as follows: count 1, five years; count 2, seven years.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

21. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one month.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

22. The offender has received a favourable pre-sentence report, which shows that he has a commendable record as a schoolteacher, that he is well thought of in his local community and that he is an excellent husband and father and that he has a wife who still loves him despite what he has done. Faced with such a good report which concludes that he is suitable for probation, the Court might well be justified in granting a partial or even entire suspension of the sentence if there was a positive indication that there had been a full and effective reconciliation between the offender and the child victim and that the child's parents had been involved in that process. But here there is no such indication. This is not something on which the offender, even though he has pleaded guilty, should be given the benefit of the doubt. The fact is that he has sexually abused a child on two occasions and in doing so he violated a sacred trust that exists between any schoolteacher and his or her pupils. These are heinous crimes. A custodial sentence is required. There will be no suspension of any part of the sentence.

ORDER

23. Lucas Dantale, having been convicted of two counts of engaging in an act of sexual penetration with a child under the age of 16 years contrary to Section 229A(1) of the Criminal Code in circumstances of aggravation under Section 229A(3) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	12 years
Pre-sentence period to be deducted	1 month
Resultant length of sentence to be served	11 years, 11 months
Amount of sentence suspended	Nil
Time to be served in custody	11 years, 11 months

Sentenced accordingly.
__________________________________________________

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