N9035

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 403 OF 2013

THE STATE

V
GILMORE TOKWAKWASI

Alotau:  Toliken, AJ
2013:   13th, 23rd August

CRIMINAL LAW – Sentence – Persistent Sexual Abuse of child under age of 16 years by step-father– Guilty plea – Objective of sentencing in cases of persistent sexual abuse of children considered – Welfare and safety of child victims of paramount consideration – Need to separate offender from victim - Need for punishment and deterrence – Custodial sentence unless exceptional circumstances are shown for a non-custodial sentence – Suspension generally inappropriate unless supported by a good Pre-Sentence Report - Criminal Code Act Ch. 262, s 229D (1)(6).

CRIMINAL LAW – Sentence –Mitigating factors considered – Early guilty plea and early admission to police – Co-operation with police and community leaders - First time offender – Non-legal provocation (wife accused offender constantly of having affair with victim) – Offender did not impregnate victim or infect her with STI  – Victim a year shy of age of consent - Expression of remorse – Aggravating factors – Existence of relationship of trust, authority and dependency – Law does not differentiate between biological and adopted/step children - Prevalent offence - Appropriate sentence – 13 years less pre-sentence custody period – Suspension inappropriate.

Cases Cited:

Public Prosecutor v Don Hale (1998) SC564
Saperus Yalibakut v The State (2006) SC890  
Stanley Sabui -v- The State (2007) SC866 
The State v Steven Makai (2010) N3914
The State -v- Joe Mui CR: 1495 of 2010 
The State -v- Steven Siname (2009) N3908
The State -v- Kuyaps Toki Jonathan (2008) N3315
The State v Ereman Kepas (2007) N3192
The State v Makis (2012) N4888
The State -v- Ben Sakias (2011) N4238
The State -v- Danny Tutuve (2011) N4400
The State v Martin Willie CR 541 of 2010 (Unreported and unnumbered judgment dated 12th December 2012) 
The State v Billy Paulo (2013) N5286

Counsel

L. W. Kuvi, for the State
P. Palek, for the prisoner

JUDGMENT ON SENTENCE

23rd August, 2013

1.	TOLIKEN, AJ:	    Gilmore Tokwakwasi, you pleaded guilty before me on the 13th of August 2013, for one count of persistent sexual abuse in contravention of Section 229D (1)(6) of the Criminal Code Act, Chapter 262 (as amended).

THE CHARGE

2.	The indictment charged that:

“...between the 1st of April 2010 and 31st of October 2011 at Wamilar village Sehulea, Milne Bay Province...[you] engaged in a conduct of persistent sexual abuse of a child namely Velma Gilmore, a child under the age of 16 years.

AND in the course of the conduct between the 1st of April 2010 and 30th of April 2010, [you] sexually penetrated the said Velma Gilmore by inserting [your] penis into her vagina.

AND in the course of the conduct between 29th of October 2011 [you] sexually penetrated the said Velma Gilmore by inserting [your] fingers into her vagina.

AND in the course of the conduct of the 29th of October 2011, [you] sexually penetrated the said Velma Gilmore by inserting [your] penis into her vagina.

THE FACTS

3.	The brief facts which you admitted are that at all material times, Velma Gilmore was your stepdaughter and that all material times she was 15 years old. Sometimes between the 1st of April 2010 and 30th of April 2010, Velma Gilmore was asleep in the family house at Wamila village, Sehulea, Milne Bay Province.  You went over to her and woke her up and insisted on having sexual intercourse with her but she refused and closed her legs.  However, you climbed on top of her, over-powered her and inserted your penis into her vagina.  After that, you told her that you would assault her if she told anyone.

5.	On the 29th of October 2011, you took Velma Gilmore to the Solasola River.  There, you removed her shorts and pushed your hands into her vagina.  You, then pushed her to the ground, inserted your penis into her vagina and had sexual intercourse with her.

6.	I perused the Committal Court Hand-up Brief.  I was satisfied that the material there supported both your plea and the charge.  I, then, convicted you for one count of persistent sexual abuse.

ANTECEDANTS

7.	You are 35 years old and have 4 children. The child Velma is the first born - though you claim that she is not your biological daughter.  You yourself are the 4th born in a family of five.  You are a member of the United Church.  You are uneducated and are a simple villager.  You have no previous convictions, and the State did not allege any.

ALLOCUTUS

8.	You admitted committing the crime and said that everything is true.  You apologised to the Court. You asked if you could be released so that you could go back home and pay compensation to the victim and look after your other children. You said you have two small kids whom you would like to return to and care for. You said this is your first offence and promised not to ever re-offend.

SUBMISSIONS

9.	Your lawyer, Mr Palek submitted that yours is not the worst offence of its type.  Hence, it should not attract the maximum penalty reserved for this offence – life imprisonment. Counsel referred me to several cases to assist are in arriving at are appropriate sentence for you.  The sentences in those cases ranged from 10 years to 20 years.

10.	One such case was The State v Billy Paulo (2013) N5286.  This was a case involving a father and his biological daughter. There, the abuse started when the daughter was 7 years old and went on for 4 years.  I, sentence the prison to 20 years imprisonment.  Your lawyer, however, said that, that case and yours are distinguishable.  There, it was biological father/daughter relationship which started when child was 7 years and subsisted for 4 years. In your case, he said your victim was just below age of consent i.e.  16 years and is like The State v Ben Sakias (2011) N4238 which attracted 12 years imprisonment.

11.	Your lawyer put to my attention factors which he said mitigated your offence.  I will come to these later.  Some of these are raised in submissions.  Counsel asked me to take this too into account. He, however, conceded that there is an existing relationship of trust even though Velma is not your biological daughter, and that the offence is prevalent. He proposed a sentence of 10 – 15 years less 8 months 10 days in pre-trial custody.

12.	Mrs. Kuvi for the State, said on other hand that there was serious breach of trust as this was a father/daughter relationship and that the sexual abuse consisted of both penile and digital penetration. Mrs. Kuvi also cited several cases including Billy Paulo (supra). Counsel, however, conceded that a sentence of between 10 – 15 years would be appropriate, but a suspension will not. 

THE OFFENCE

13.	Section 229D of the Code prescribes the offence of persistent sexual abuse as follows:

		229D.	 PERSISTENT SEXUAL ABUSE OF A CHILD
	(1) A person who, on two or more occasions, engages in conduct in relation to a 	particular child that constitutes an offence against this Division, is guilty of a crime of 	persistent abuse of a child.
	Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.
	... 
		(6) If one or more of the occasions involved an act of penetration, an offender 	against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.

14.	So, as we can see the crime of persistent sexual abuse is very serious indeed. Where it does not involve sexual penetration, the maximum penalty is 15 years but if penetration was involved as is the case here, the maximum penalty is life imprisonment.

15.	The penalty reflects the seriousness of the offence and society’s view of this abhorrent behaviour and especially so when the abuser stands in a position of trust, such as in the case of parent/child relationship. And it must be stated categorically that the law does not differentiate between biological and adopted or stepchild/parent relationships.

SENTENCING TREND

To appreciate what sentences this court has been imposing on offenders for this offence let me consider some recent cases, some of which were cited to me by counsel.

No	CASE	PARTICULARS	SENTENCE	
1	The State v Billy Paulo (2013) N5286; Toliken AJ.	Plea – One count of persistent sexual abuse by prisoner of biological daughter – Abuse started with digital penetration when victim was 7 years old and persisted over a period of 4 years culminating in sexual penetration – Welfare of child a paramount consideration – Need to separate prisoner from victim, an important object of sentencing for this type of offence.	20 years less pre-sentence custody period.	
2	The State v Martin Willie CR 541 of 2010 (Unreported and unnumbered judgment dated 12th December 2012) Toliken AJ.	Plea – one count of persistent abuse of 15-year-old girl – First time offender – No force or violence used – Element of consent – victim not too far below age of consent – Victim did not fall pregnant or contract STI - Sexual penetration – Offence prevalent.	10 years less period in pre-sentence custody	
3
	The State -v- Danny Tutuve (2011) N4400; Ipang AJ. 	Trial – one count of persistent sexual abuse – two separate occasions of penile penetration of 9-year-old child by 55 years old prisoner – huge age difference. 	18 years less pre-trial custody period.	
4	The State -v- Ben Sakias (2011) N4238; Sawong J. 	Plea – prisoner sexually penetrated niece on two different occasion – Prisoner 28 years old/ victim 14 years old – mitigating factors – Plea saved victim from giving evidence in court – expression at remove – unsophisticated village – first time offender – No violence – Aggravating factors – Breach of trust – victim became pregnant – Prevalence of offence.	12 years less pre-sentence custody period.	
5	The State v Steven Makai (2010) N3914; Cannings J. 	Persistent penetration of 9-year-old girl by 30-year-old man over 19-month period – Brother in-law/sister-in law relationship – offender acted alone, no use of weapons or aggravated violence – caused no further trouble – Huge age difference – tender age of victim – no consent – extreme breach of trust – no reconciliation or forgiveness – no remorse.	20 years less time in pre-trial custody.	
6	The State -v- Joe Mui CR: 1495 of 2010; Cannings J.	Convicted of one count of persistent sexual abuse (penetration) of child - No particulars available to the court.	12 years less pre-sentence custody period.	
7	The State -v- Steven Siname (2009) N3908; Lenalia J.	Plea – 3 counts of persistent sexual abuse (penetration) – biological brother/sister relationship – victim 15 years old – mitigating factor – plea of guilty, first-time offender – no injuries – Aggravating factors – victim became pregnant - Not one after incident. 	For count 1 & 2 = 28 years cumulative. Count 3 – 10 years concurrent. Total 28 years less time in pretrial custody.	
8	The State -v- Kuyaps Toki Jonathan (2008) N3315; Kandakasi J	Plea- persistent sexual penetration of 13 years old girl – breach of trust – use of threats and force – victim become pregnant – no compensation – First time offender – Prevalent offence – Prisoner 22 years old.	18 years less period in pre-sentence custody period.	
9	The State v Ereman Kepas (2007) N3192; Cannings J. 	Plea – Five instances of sexual touching and one instance of sexual penetration – Prisoner 60 years old – victim 10 years old – father/stepdaughter relationship – Abuse over 4 months – Mitigating factors include guilty plea, nil priors, advanced age and medical condition – Aggravating factors include big age difference, no consent, tender age of child, breach of trust, physical violence and injury, no apology, no compensation, no genuine remorse.	12 years less pre-trial custody period.	
10 	The State v Makis (2012) N4888; Kawi J.	Plea – Two counts of persistent sexual abuse of daughter by biological father – Circumstance of aggravation alleged, i.e., use of weapon to threaten victim into submission – Breach of relationship of trust, authority and dependency 	Count 1 – 14 years 
Count 2 – 13 years
Total = 27 years to be served consecutively	

16.	 The sentencing trend has appropriately been high – the highest being 28 years as we have seen above. This is not to say, however, that you will receive that high a sentence because your sentence will depend entirely on the circumstances of your case. 

YOUR CASE

17.	My task now is to impose a sentence that is appropriate or befits the circumstances of your case. And to do that let me briefly consider your mitigating factors and those factors going against you. Your mitigating factors are –

1.	You entered an early guilty plea.
2.	You are a first-time offender.
3.	You were of prior good character before you sexual abusing your 	daughter.
4.	You are a simple villager and are illiterate.
5.	You co-operated with the police and village leaders.
6.	You made early admissions to the police.
7.	The victim is a year shy of the age of consent.
8.	There was non-legal provocation in that as your lawyer submitted your 	wife had been accusing you of having an affair with victim. (Saperus 	Yalibakut v The State (2006) SC890)
9.	You did not impregnate the victim or infect her with a Sexually 	Transmitted Infection (STI).

18.	There are, however, aggravating factors against you. These are:

1.	There is in existence a very close relationship of trust between you and the victim despite fact that she is not your biological daughter but your stepdaughter.
2.	This type of offence is becoming very prevalent in this province and elsewhere in the country.

19.	I do agree that that yours is not the worst kind of persistent abuse. Nonetheless it deserves a punitive and deterrent sentence. A sentence in your case should also seek to serve an additional purpose – separation – that is separating you from your stepchild. As I said in The State v Billy Paulo (supra), the welfare of child victims or survivors of sexual abuse and more so victims of persistent sexual abuse involving sexual penetration by those closely connected with her, is of paramount consideration. In such cases, the paramount object of sentencing should be separation - that is, separating the offender from the child victim. This is an important consideration in your case given that the victim or survivor as she might more appropriately be considered, is your stepdaughter.

20.	It is worth reiterating what the Supreme Court said in Stanley Sabui -v- The State (2007) SC 866 (Mogish, Manuhu, Hartshon JJ.). There, in an appeal against sentence on a conviction for sexual penetration under Section 229A, the court said that Parliament had clearly spoken - that sexual penetration of children should be severely punished and that the sexual penetration of children under 12 is more serious hence attracting the maximum penalty of life imprisonment.
 
21.	In The State v Billy Paulo (supra), I said “… what the court said there should apply with stronger force in cases of persistent sexual abuse under Section 229D (1) (6) of the Code. Parliament has indeed spoken very clearly that those who persistently sexually penetrate children must be visited upon by the same maximum penalty – life imprisonment where appropriate. And more so where there is in existence a position of trust, authority and dependency.”

22.	It must also be stated that because of the over-riding need to protect child victims or survivors, this type of offence must generally attract custodial sentences unless exceptional circumstances are shown for the imposition of a non- custodial sentence. Sentences may, however, be “tempered with mercy” by the court in the exercise of its discretion. And this may include a suspension – whether whole or partial – providing that suspension is supported by a good Pre-sentence Report. This of course must be viewed against the need to protect the victim. (Public Prosecutor v Don Hale (1998) SC 564)   

23.	So, what is an appropriate sentence for you?  Given the circumstances, I think that a starting point should be 15 years and head sentence of 13 years would be appropriate. This sentence serves basically to protect your stepdaughter and to punish you and hopefully rehabilitate you. 

24.	I, therefore, impose a sentence of 13 years.  From this, 8 months and 10 days shall be deducted for time spent awaiting trial and sentence. Your resultant sentence should therefore be 12 years and 3 months 20 days. And because of the over-riding need to separate you from your victim for her own protection, none of this would be suspended.

Sentenced and ordered accordingly.

______________________________________________________________________________
Public Prosecutor:	Lawyers for the State
Public Solicitor:	Lawyers for the Prisoner