State v Mathew [2013] PGNC 338; N5550 (23 October 2013)

N5550

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 316 OF 2013

THE STATE

V

IAN MATHEW

Lorengau: Geita AJ
2013: 15th, 21th, 23 October

CRIMINAL LAW – Sentence – Particular offence – Sexual penetrating of a girl under 16 years – S. 229A (1) (3) of the Criminal Code Act.

CRIMINAL LAW – Guilty plea- Breach of trust relationship diminished – Act of sexual intercourse with girl under 16 consensual – Sentenced to 7 years – Wholly suspended and put on Probation with conditions – Counselling as part of condition – Additional orders for compensation payment considered improper amounting to unjust enrichment.

Cases Cited

The State v Michael Kilau (2006) N3107

Counsel:

Francis Pope, for the State.
Paul Moses, for the accused.

SENTENCE

23 October, 2013

1. GEITA AJ: You pleaded guilty to a charge of sexual penetration of a girl under the age of 16 years old at Pelipowai village in Lorengau Manus Province on 28th August 2012. You penetrated her vagina with your penis thereby contravening s 229A (1) (3) of the Criminal Code Act, as amended to date. Furthermore an existing relationship of trust, authority or dependency between you as a teacher and the child as a student existed.

The Law.

2. You have been convicted of sexual penetrating of a girl under the age of 16 years old an offence contrary to s. 229A (1)(3) Criminal Code Act, as amended. It reads:

"229A. Sexual penetration of a child.

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

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

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(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.

The facts

3. The facts as agreed by the State and Defence on the depositions for the guilty plea are these: During the month of August 2012 you were a teacher and the complainant CT was a student at Warambei Primary School. On the evening of August 28 between 7pm and 8 pm you entered the complainant's house and had sexual intercourse with her by inserting your penis into her vagina. At that time her parents had gone into town leaving her behind with her elder sister. The complainant CT was 15 years old at the time and that a breach of trust relationship existed in that you were a teacher and CT was one of your students.

Allocutus

4. In your allocutus, you said sorry for what you have done in the eyes of God and to the court. You said you did that because of a relationship and I ask for leniency from court.

Mitigating factors

5. The mitigating factors in your case are:

a) Your plea of guilty

b) That you had co-operated with the police and readily made admissions.

c) That you had expressed genuine remorse for your behaviour.

d) No treat of violence and force used on victim

e) That you are first-time offender

f) Consent on part of victim

g) You have reconciled with the victim's relatives

h) Victim's education not disrupted

Aggravating factors

6. The factors in aggravation include:

1) Existing relationship of trust, authority and dependency.

2) Victim under 16 years

Defence submissions

7. Your Lawyer told me about your personnel particulars and also made submissions on what the appropriate sentence ought to be in your case. In his submissions, your lawyer urged Court to take into account the mitigating factors. He submitted that you had just graduated as a teacher and was six months into work when the crime was committed. Mr Moses said the victim was partly to be blamed as she led the accused into a relationship. The accused was invited into her home during the absence of her parents and at that time other family members were around in the house. Furthermore the relationship was strengthened by the victim requesting material assistance from the accused hence the trust dependency and authority relationship diminished.

8. In support of his submission your Lawyer referred me to the case of The State v Michael Kilau (2006) N3107 by Kirrowom J delivered on 13 October 2006. That case involved a teacher and his pupil with the pupil falling pregnant and removed from school. The teacher was sentenced to 7 years and also ordered to pay K1000 as compensation. Mr Moses said when comparing that case to your case yours was not the worst type of case and the whole of the sentence be suspended. In addition Mr Moses urged Court to consider Section 19 Code when punishing you. He urged the Court to impose a sentence of 7 years to be wholly suspended due to the favourable mitigating circumstances together with those other reasons mentioned above.

Pre Sentence Report

9. Your Pre-Sentence Report sets out in great detail all relevant information and it contains a recommendation that you be ordered to pay compensation and given counselling to control your emotions. The Probation Office however admitted that the crime was prevalent in the province and that a deterrence sentence be also considered to prevent future occurrences. On the whole I commend the Acting Senior Provincial Probation Officer Ms Nancy Poli for a well researched and balanced report on your behalf.

State submissions

10. Counsel for the State, Mr Popeu submitted that although some form of reconciliation had taken with some amount of monies paid to the victim and her relatives the offence was serious. The teacher/pupil existing relationship aggravated the situation and there was serious breach of trust. He submitted that parents send their children to school to be educated and not to be abused by teachers. Mr Popeu submitted that a deterrence sentence be imposed to deter others and the general public for committing similar crimes. He submitted that a sentence of 10 years be imposed on the accused.

Community attitudes

11. All forms of crimes which go against the moral fabrics of society are abhorred with disdain by any community including the community here in Manus Province. The sentiment recorded by the Probation Officer in your Pre Sentence Report is testament to community feelings and disgust towards such crimes. The prevalence and sudden upsurge of sexual crimes against the female population especially young children has brought about the introduction of new laws with very high penalties. I am here referring to the amendments passed in 2002: Sexual Offences and Crimes Against Children 2002.

Was sexual penetration consensual?

12. In your record of interviewed you elected to remain silent throughout however upon arraignment you admitted to the indictment. In your allocutus you said you did what you did because of a relationship. Although you did not elaborate the nature and extend of your relationship with the victim I take judicial notice of your reply to mean a boy/girl relationship. The victims admissions of you having sexual intercourse with her on three occasions during the course of the night to me is sufficient inferential evidence for one to draw conclusions that the sexual relations was somewhat consensual. There is no evidence of great distress or resistance although the victim said she was forced. Coupled with that there does not appear to be any urgency in subjecting the victim to medical examination. The examination was conducted one month after the supposed attack on 29th September 2012 with no physical abnormalities detected and suggestion that penetration of the vagina may have taken place. Inferentially the length of time you both remained in the victim's house from 7pm to 6 am the next morning could easily be seen as a relationship which existed. It follows in my view that any sexual activity conducted during that night could easily amount to consensual sexual intercourse.

Was there an existing relationship of trust, authority or dependency?

13. Touching on the issue of an existing relationship between you and the victim I am of the view that that element of the charge is greatly diminished for two reasons. First there was an existing relationship which was consensual and second the crime was not committed within the precincts of the school. The teacher/student relationship in my view is reduced to only a boyfriend/girlfriend relationship. The degree of the seriousness of the crime in my view is further lessened in that the relationship was that of a boy-girl relationship as opposed to a situation where both the accused and the victim were strangers.

Court Observations

14. The law that you have been charged with is two pronged. First you had sexual intercourse with a girl under the age of 16 years and there was an existing relationship of trust, authority or dependency between the accused and the child: You were a teacher and she was your student. The law stipulates that if found guilty of this crime, of which you have been, you could be imprisoned for life, subject to Section 19 of the Criminal Code.
I also agree with Mr Moses that yours was not the worst type of assault. Your mitigating factors outweigh the only aggravating factor: existing relationship of trust, authority and dependency. As I have said earlier the degree of this element was greatly reduced in that the crime was not committed within the school environment but at the victims home upon invitation.

Sentence.

15. I am urged to take into account that this is your first time in court and you could be regarded as a youthful first offender. You have recently joined the work force and 6 months into teaching at Pelipowai Primary School. Be that it may you have brought it upon yourself and should not expect any leniency and pity from others. I am not inclined to order any additional compensation payment other than those already paid and received in good faith. To do so in my view would be seen as the victim and her family members enriching themselves unjustly from this crime.

16. Having taken into account your personal background and your family background as told to me by your lawyer and your antecedent report. Then in mitigation, I have taken into your favour that you have pleaded guilty. Further you have said sorry for what you have done. All in all I consider a sentence of 7 years imprisonment to be appropriate which I so impose.

17. You are convicted and sentenced to seven (7) years imprisonment in hard labour. However in the exercise of my discretion under s.19 of the Criminal Code I suspend the whole of the sentence and place you on Probation with conditions as follows:

(1) You are placed on Probation for 3 years and to be under the supervision of Lorengau Probation Officers,

(2) You are to keep the peace and to be of Good Behaviour,

(3) You must attend counselling to control your emotions

(4) Probation Officers must be allowed to carry out random inspections of your house at all times.

(5) Should you fail to comply any of the above orders you will be arrested and made to serve the whole of the suspended sentence. __________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused