State v Augustine [2014] PGNC 125; N5743 (4 September 2014)

N5743

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR.NO.83 - 84 OF 2014

THE STATE

V

KULUME AUGUSTINE

Kokopo: Lenalia, J.
2014: 5th, 19th August & 4th September

CRIMINAL LAW – Sexual offences – Persistent sexual abuse – No breach of trust
authority and dependency – Guilty plea – Criminal Code (Sexual Offences and Crimes Against Children) Act 2000.Section 229D (1) (6).

CRIMINAL LAW – Persistent sexual abuse of victim under age of 16 years – Victim was not related to prisoner – Offence occurred with consent of victim.

Cases cited.

& The State v Sotie Apusa [1988-89] PNGLR 170
The State v Mitige Neheya [1988-89] PNGLR 174
The State v. James Donald Keimou (2001) N2295
The State v. Amos Audada (2003) N2554
The State-v-Penias Moke (No.2) (2004) N2635
The State v. Eddie Sam (2004) N2521) N2809
The State v Hosea Morongo (25.3.08) Cr.No.532 of 2005

Counsel

Mr. L. Rangan, for the State
Mr. P. Kaluwin, for the Accused

4th September, 2014

1. LENALIA, J: The prisoner in this case, Augustine Kulume of Nordup village, Rabaul District, East New Britain Province, now resides at a block in Vunapalading No.1, Gazelle District, pleaded guilty to one count of persistent sexual abuse contrary to s. 229D (1) (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The offence was committed on two occasions on various dates between July and August 2013. The relationship of the prisoner to the victim is he is the biological father of the victim Leonie Augustine.

Brief Facts

2. From the record of interview in answers to questions 20 to 23, the prisoner admitted to sexually penetrating his daughter two times. According to the facts, the first act of sexual penetration took place on a Sunday night between 7pm and 8pm where the prisoner told the victim to pick up some tools from her uncle's house. She walked off and the prisoner having seen her gone, followed her into a cocoa plantation at Vunapalading No.2. He pulled her down under the cocoa trees and undressed her then sexually penetrated her without her consent. This took place in July School holidays.

3. The second occasion of sexual penetration was committed on 5th August 2013. The prisoner threatened the victim around their house where he forced her into a room and sexually penetrated her. On that occasion, the victim left the prisoner and immediately told her mother. Following this, the mother took Leonie to the hospital then the matter was reported to the police at Keravat police station.

Addresses on Sentence

4. On his statement on the final say, the prisoner said sorry to the victim and their relatives. He said sorry to the State and the Court. He said he was tempted to do what he did to the victim. He asked the court to take into account that he is the first time offender.

5. On behalf of the prisoner, Mr. Kaluwin asked the court to consider the following mitigations:

➢ prisoner's guilty plea,
➢ his cooperation with the police interviewing officer, where he early admitted to having sex with the victim on accasions as stated in the facts,
➢ lack of prior conviction,
➢ prisoner first time,
➢ his genuine remorse and,
➢ there may have been consent on the part of the victim.

6. Counsel submitted that, the above factors should be considered by the court. He referred to one or two cases where the National Court judges have imposed terms of imprisonments. He asked the court to consider that the offence took place in a home set environment.

7. Mr. Rangan of counsel for the prosecution, agreed with the defence counsel that though the case may not be serious in the sense that, there seemed to have been some consent on the part of the victim, the court ought to consider the serious issue of child abuse in this Province and elsewhere in this country. Counsel submitted that this case involved a serious breach of trust and the prisoner should be sentenced to a term that will reflect the seriousness of this crime.

Law
8. The prisoner is charged with one Count of persistent sexual abuse. Persistent sexual abuse is an offence against s.229D (1)(6) of the Criminal Code Sexual Offences and Crimes Against Children) Act because, the act of sexual intercourse took place more than once.

9. As the prisoner heard at the introduction of this judgment, the court said, the maximum penalty provided for the above offence is 15 years imprisonment but if it is committed with aggravation as defined by Subsection (6) and s.6A of the Act, an imprisonment term of life imprisonment is available for such cases. Subsection (6) of s.229D of the Act states:

"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."

10 The amended portion of the Criminal Code dealing with sexual offences, does not prescribe the death penalty but instead places the maximum at life for aggravated sexual offences. In this case, there are two or three circumstances of aggravation. First, sexual penetration occurred more than once. Secondly, the prisoner breached the relationship of trust, authority or dependency. This was because the prisoner is the natural father of the victim. Thirdly, at the time the offence took place the victim was under the age of 16 years.

11. The case of The State-v-Penias Moke (No.2) (2004) N2635 establishes that, the more closer the relationship to an accused is to the victim, the penalty ought to be higher. In your case the victim is not related to you and the circumstances of the above case may not apply to yours. In the circumstances of the case before me, the prisoner is the natural father of the victim making the offence very serious indeed. The Act creates the offence of "abuse of trust, authority or dependency". The legislative intent was for the courts to consider and treat abuse of trust very seriously particularly in the home environment and those persons referred to in S.6A of the Act: (See cases of The State v Mitige Neheya [1988-89] PNGLR 174 & The State v Sotie Apusa [1988-89] PNGLR 170). Under s.349A (e) of the Act, breach of trust is an aggravation.

12. The Criminal Code as amended creates and prescribes the maximum penalty of 7 years imprisonment. This is a reduction from the original maximum penalty of life imprisonment in the old provision. The offence of incest is a very serious offence because it destroys the sacred trust between close relatives. In this country, incest is quite prevalent and on the increase. Given the seriousness and its prevalence of this crime, the Courts have imposed maximum sentences of 7 years.

13. Such sentences for rape have ranged from 10 years as in The State v. Amos Audada (2003) N2554 and 17 years cumulative for 9 counts of incest as in The State v. Eddie Sam (2004) N2521 for repeated acts of incest. They even reached life imprisonment as in The State v. James Donald Keimou (2001) N2295 for repeated acts of incest by a natural father against two daughters with a total of three children being born to the daughters.

14. In The State v Hosea Morongo (25.3.08) Cr.No.532 of 2005, the prisoner was convicted on his plea to two counts of incest with his natural daughter. The offences were aggravated by the victim giving birth to a child. He was sentenced to 5 years imprisonment for the first count and 3 years on the second charge which were added up to a total of 8 years cumulative sentences.

15. I have considered addresses on sentence first by the prisoner then his lawyer and that by the prosecuting counsel. I also consider the comments by those contacted in the pre-sentence report. Comments by the Ward Committee Mr. Solomon Wauta and those of Fr. Martin Kareng a Catholic Priest at Keravat.

16. On this case, I consider that a sentence of 9 years is appropriate. The Court suspends 2 years from that sentence on condition to keep the peace after serving the balance. The prisoner is sentenced to 9 years imprisonment. His bail money shall be refunded to him forthwith.
_______________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused