State v Rousela [2013] PGNC 377; N9033 (8 August 2013)

N9033

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 260 OF 2013

THE STATE

V

GEORGE ROUSELA

Alotau: Toliken, AJ
2013: 21^st May, 8^th August

CRIMINAL LAW – Sentence – Sexual touching – Accused (35 years old) rubs his penis and manually stimulates 8 year old victim’s vagina - Step-father/step-daughter relationship – Guilty plea – First time offender – Expression of remorse – Isolated incident - Very close relationship of trust, authority and dependency - Huge age difference - Prevalent offence - Purpose of sentencing in sexual offences against children considered – Reasons for suspension of sentence in sexual offences considered – Sentence of 6 years less period spent in custody – No suspension or probation – Criminal Code Act Ch. 262, s 229B(1)(4).

The prisoner pleaded guilty to sexually touching his 8-year-old stepdaughter with his penis and fingers. This was an isolated incident. The prisoner pleaded for a suspended sentence so that he can reconcile with his wife and stepdaughter.

Held:

(1) An additional and perhaps the over-riding purpose for sentencing perpetrators of sexual abuse against children, particularly those who stand in very close relationships of trust, authority and dependency such as parents, whether biological, adoptive or stepparents, guardians and close relatives, is to separate or keep such abusive and dangerous people away from their victims.

(The State v Billy Paulo CR 342 of 2011 (unreported and unpublished judgment delivered in Alotau on 24^th May 2013) followed.)

(2) There is no guarantee that abuse will not be repeated. Expressions of remorse cannot guarantee that the offender will not re-offend. Furthermore, an isolated incident may be the beginning of a long chain of abuse that can often follow a child even up to his or her adulthood.

(3) While there are many reasons that can be advanced to justify the suspension of a sentence, generally, in sexual offences against children, the over-riding consideration should and must be the welfare and safety of the child. The protection of our children from sexually abusive adults undergirds the enactment of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. That being the case suspension of sentence for this type of offence should be exercised sparingly, if at all.

(4) When considering whether to suspend a sentence the court should, among other things, consider the following -

(i) the nature of the relationship between the victim and the offender.
(ii) the comparative ages of the victim and the offender.
(iii) the capacity of the child’s mother (and other relatives for that matter) or State agencies to protect the child from further abuse by the offender.
(iv) the genuineness or otherwise of any remorse expressed by the offender.
(v) whether such remorse has been demonstrated by a clear evidence of turning about (a complete change) by the offender.
(vi) the possibility or likelihood of re-offending by the offender.

(5) Where the relationship is that of stepfather/stepdaughter or between biological or adoptive father and daughter, the likelihood of repeated offending remains very real and high, and the court would be failing its duty to protect an abused child if it suspends a sentence without considering the above matters. The best interest of the child would be best served if the offender were to be incarcerated for a sufficiently long period of time.

(6) In the circumstances of this case, a suspended sentence will unnecessarily put the child in danger. There is no guarantee that the child will be safe with the prisoner. There is no guarantee that the mother, her relatives and State agencies will be able to protect the child from further abuse by the prisoner. The relationship is one of stepfather/stepdaughter and in all probabilities, the prisoner will immediately return to the family home if his sentence or any part of it is suspended and pose immediate danger to the victim. Therefore, none of the sentence will be suspended nor will I consider probation.

(7) The prisoner will serve the full balance of his sentence – 5 years, 6 months and 21 days at Giligili Corrective Institution.

Cases Cited

Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
The State v Kawega Tanang (2005) N2941
The State v Paul Nelson (2005) N2844
The State v Thomas Angup (2005) N2830
The State v Thomas Tukaliu (2006) N3627
The State v William Patangala (2006) N3027
The State v Steven Archie (2009) N3727
The State v Ateika (2010) N3962
The State v John (2012) N4630
The State v Billy Paulo CR 342 of 2011 (unreported and unpublished judgment delivered in Alotau on 24^th May 2013)

Counsel

R Auka, for the State
M Arua, for the Accused

JUDGMENT ON SENTENCE

8^th August 2013

1. TOLIKEN, AJ: The prisoner George Rousela pleaded guilty before me for one count of sexual touching contrary to Section 229B (1)(4) of the Criminal Code Act on the 21^st of May 2013.
   
2. On 7^th of December 2012 at Keen Village, Alotau, Milne Bay Province, the prisoner was baby-sitting his two-year-old toddler while his wife and stepdaughter Catherine Auwega went down to the river to wash their dishes and laundry and fetch water for the house.
   
3. The child Catherine returned to the house with the clean dishes, laundry and water, leaving her mother behind at the river. She was wet and went into the room to change. As she was coming out of the room after changing her clothes, the prisoner confronted her and pulled her back into the room. There he laid her down on the floor, opened her legs and started rubbing his penis against her vagina while touching (stimulating) her vagina at the same time with his fingers.
   
4. While this was happening, the prisoner’s wife returned from the river. The child immediately reported the matter to her. The matter was reported to the police, and he was charged.
   
5. The child was later taken to the hospital for a medical check. The medical examination revealed no obvious bleeding, or fluid around the perineum and the hymen was intact.
   
6. The child was about 8 years old at the time of the incident.
   
7. I confirmed the plea and convicted the prisoner having satisfied myself that the evidence in the committal depositions supported the charge.
   
8. The prisoner is a first-time offender. He is married to the victim’s mother – hence, the victim’s stepfather. He is 29 years old, educated to Grade 2 only. He is a villager and is a member of the Anglican Church.
   
9. The prisoner apologised for his offence. He also apologised to his wife and stepchild.
   
10. Mr. Arua for the prisoner submitted that this is not a worst offence that should attract the maximum penalty of 12 years. He said that the offence involved only the fingers and penis but there was no penetration. There was also no violence offered or injuries suffered and that it was an isolated incident.
    
11. Counsel cited the following cases to assist the Court in arriving at an appropriate sentence. These are The State v Paul Nelson (2005) N2844; The State v Kagewa Tanang (2005) N2941; The State v Thomas Tukaliu (2006) N3627; The State v William Patangala (2006) N3027 and The State v Steven Archie (2009) N3727. I will return to these later.
    
12. Mr. Arua asked for a sentence of between 1-3 years which should then be wholly suspended.
    
13. Mr. Auka on the other hand urged the Court to consider Parliament’s call for tougher sentences for this type of offence and the communities’ call, in recent times for equally tougher sentences.
    
14. Counsel submitted that the victim was the prisoner’s stepdaughter hence there existed a close position of trust. There is hence a high degree of culpability made worst by the huge age difference between the prisoner and the child.
    
15. Counsel cited The State v Kagewa Tanang (supra) and The State v Thomas Angup (2005) N2830. The latter was a case of sexual touching by father of stepdaughter amongst other counts.
    
16. Counsel submitted hat this offence is prevalent in this province and Papua New Guinea as a whole. He reminded the Court that his call for a tougher penalty comes at a time when women around the country are staging the Haus Krai to protest the abuse of women and children.
    
17. He also asked me to consider what I said in the case of The State v Billy Paulo CR 342 of 2011 (unreported and unpublished judgment delivered in Alotau on 24^th May 2013) - that an offender such as the prisoner ought to be separated from the victims to prevent repeat of this sickening type of behaviour.
    
18. Counsel referred the Court to the victim’s mother’s objection to any lesser sentence and urged the Court to impose a sentence of 6 years.
    
19. The offence under consideration carries a maximum penalty of 12 years imprisonment.
    
20. This is a clear reflection of Parliament’s view on offences involving the abuse – sexual or otherwise - of children. Sub-section (4) of Section 229B covers children under the age of 12 years. This is a very vulnerable group or class of children who must be protected and loved and nurtured by their parents, guardians and others who stand on positions of trust, authority and dependency. Hence, the penalty of 12 years (as opposed to 7 years for children under 16 years (Sub-section (1)) appropriately reflects the seriousness and gravity of such an offence.
    
21. Let me now consider a few cases to see how this Court has treated offenders for this offence. Some of these were cited to me by Counsel.
    
22. In The State v Ateika (2010) N3962, the prisoner pleaded guilty to two counts of sexual touching of two 9-year-old girls who were related to him. The prisoner was 39 years old and educated up to Grade 10. He had invited the girls into his bedroom, got them naked, rubbed their bodies and vaginas with oil and then rubbed his penis against their vaginas until he ejaculated. The Court found an existing relationship of trust. He was sentenced to 5 years for each count which were served concurrently.
    
23. In The State v Thomas Angup (supra), the prisoner was convicted on plea for sexually touching his stepdaughter. He was sentenced to 6 years.
    
24. In The State v Kagewa Tanang (supra), the prisoner pleaded guilty to one count of sexual touching of a child of 12 years with his penis and fingers. When alone with the victim, he manipulated the child’s vagina with his fingers. He laid her on the floor and then attempted to penetrate her vagina but could not. Hence, he simply rubbed his penis around her vagina.
    
25. There His Honour Kirriwom J. considered the prisoner’s plea, his expression of remorse, his prior good character. Against him, His Honour, however, noted that the prisoner was an adult. The prisoner was, therefore, given a sentence of 6 years.
    
26. In The State v Thomas Tukaliu (supra), the prisoner pleaded guilty to 2 counts of sexually touching his niece, hence, there was relationship of dependency and trust. He was sentenced to 5 years, 3 years of which were suspended with conditions.
    
27. In The State v John (2012) N4630, the 35-year-old prisoner pleaded guilty to sexually touching his 10-year-old daughter with his fingers and penis. Although the indictment was for sexual touching the committal depositions disclosed penile and digital penetration of the victim’s vagina. The victim suffered serious injuries to her vaginal area which included a torn hymen. There, the court (David J.), considered the aggravating and mitigating factors as squaring out and sentenced the prisoner to 6 years less time spent in custody.
    
28. In The State v Paul Nelson (supra), the 68-year-old prisoner pleaded guilty to sexually touching the 12-year-old victim with his fingers. He was among other things a first-time offender, there was no relationship of trust, the prisoner did not express any remorse and advanced in years. This was an isolated incident. He was sentenced to 3 years, 2 of which were suspended with conditions.
    
29. So, let me now consider the case at hand.
    
30. The prisoner pleaded guilty to the offence. He has no prior convictions. No physical violence was used nor did the victim suffer any physical injuries. He is of prior good character and appears remorseful and the offence was an isolated one.
    
31. However, I find that there is an existing relationship of trust, dependency and authority in that the victim is the prisoner’s stepdaughter. There is an age difference of almost 20 years between the prisoner and the victim. Furthermore, this offence is becoming increasingly prevalent. So, what would be an appropriate sentence? Should it attract the maximum penalty? Should any of it be suspended?
    
32. The law is clear that the maximum penalty is always reserved for the worse instance of the offence. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92]
    
33. In the circumstances, I do not think that this case can easily fall into the worst category of this type of offence, hence, it should not attract the maximum.
    
34. Nevertheless, it need not be emphasized that sexual abuse of children under 16 years of age and more particularly those under 12 years is a very serious offence indeed. It calls for an immediate custodial sentence not only for personal and general deterrence, but also for the simple and plain purpose of punishment.
    
35. The State v Billy Paulo (supra) was a case of persistent sexual abuse (including penile penetration) of a child by her biological father over a period of 7 years beginning when the child was merely 7 years old. I said there that an additional and perhaps the over-riding purpose for sentencing perpetrators of sexual abuse against children, particularly those who stand in very close relationships of trust, authority and dependency such as parents, whether biological, adoptive or step- parents, guardians and close relatives, is to separate or keep such abusive and dangerous people away from their victims.
    
36. This is because there is no guarantee that abuse will not be repeated. Expressions of remorse cannot guarantee that the offender will not re-offend. Furthermore, an isolated incident may be the beginning of a long chain of abuse that can often follow a child even up to his or her adulthood.
    
37. Having said that, I consider those factors for and against the prisoner and I must say that a head sentence must fall somewhere in the mid-range.
    
38. I take note of the fact that there was an existing very close relationship of trust, that of stepfather and stepdaughter. It does not matter one bit to me or to the law that the child was merely a stepdaughter. The prisoner had a duty (both moral and legal) to protect, love and nurture this child – the child of the woman whom he married and obviously love. But instead of doing that, he abused her - once only as he was caught – but there is no guessing what would have happened had his immoral and diabolic act had not come to light.
    
39. Furthermore, there was an age difference of almost 20 years. This also heavily aggravates his offence.
    
40. The sentences in the cases considered above ranged between 5 – 6 years and all exhibit certain features that are similar the circumstances of this case.
    
41. In the case of The State v Thomas Angup (supra), the prisoner was the stepfather of the child. The prisoner was sentenced to 6 years. The case of The State v Kagewa Tanang (supra), where the prisoner touched the victim’s vagina with his penis and fingers a sentence of 6 years was also imposed. These two cases are like the matter at hand.
    
42. In the circumstances, I, therefore, impose a sentence of six (6) years from which the period spent in custody – five (5) months and mine (9) days – is to be deducted. The prisoner shall therefore serve the balance of 5 years 6 months and 21 days at Giligili.
    
43. Should any of these be suspended or should the prisoner be considered for probation supervision?
    
44. While there are many reasons that can be advanced to justify the suspension of a sentence, generally, in sexual offences against children, the over-riding consideration should and must be the welfare and safety of the child. The protection of our children from sexually abusive adults undergirds the enactment of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. That being the case suspension of sentences for this type of offence should be exercised sparingly, if at all.
    
45. The question for me then is: Will I be promoting the protection of the victim and her welfare if I were to suspend the sentence whether wholly or in part or place the offender on probation?
    
46. I guess the answer to this question will depend very much on the circumstances of each case. However, I would like to think that when considering whether to suspend a sentence the court should, among other things, consider the following –
    

(i) the nature of the relationship between the victim and the offender.

(ii) the comparative ages of the victim and the offender.

(iii) the capacity of the child’s mother (and other relatives for that matter) or State agencies to protect the child from further abuse by the offender.

(iv) the genuineness or otherwise of any remorse expressed by the offender.

(v) whether such remorse has been demonstrated by clear evidence of turning about (a complete change) by the offender.

(vii) the possibility or likelihood of re-offending by the offender.

47. I strongly feel that where the relationship is that of stepfather/stepdaughter or between biological or adoptive father and daughter, the likelihood of repeated offending remains very real and high, and the court would be failing its duty to protect an abused child if it suspends a sentence without considering the above matters. The best interest of the child would be best served if the offender were to be incarcerated for a sufficiently long period of time.
    
48. In the circumstances of this case, I feel that a suspended sentence will unnecessarily put the child in danger. There is no guarantee that the child will be safe with the prisoner. There is no guarantee that the mother, her relatives and State agencies will be able to protect the child from further abuse by the prisoner. The relationship is one of stepfather/stepdaughter and in all probabilities the prisoner will immediately return to the family home if his sentence or any part of it is suspended and pose immediate danger to the victim. Therefore, none of the sentence will be suspended nor will I consider probation.
    
49. The prisoner will serve the full balance of his sentence – 5 years, 6 months and 21 days at Giligili Corrective Institution.
    

Sentenced accordingly.
______________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused