State v Save [2014] PGNC 228; N5759 (11 July 2014)

N5759

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1097 OF 2013

THE STATE

V

PAUL SAVE

Kokopo: Lenalia, J.
2014: 16th, 19th June, & 11th July

CRIMINAL LAW – Sexual offence – Persistent sexual abuse of victim under the age of 16 years for over a period of time – Victim age 13 at time of offence – Accused was about 39 years of age – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.s.229D (1)(6).

CRIMINAL LAW – Persistent sexual abuse under breach of trust, authority and dependency – Victim was 13 years or even before this age – Serious consequences – Victim was an step-daughter of prisoner – Serious breach of trust – Appropriate penalty – Term of imprisonment.

Cases cited

The State-v-Sottie Apusa [1988-89] PNGLR 170
The State-v-Penias Moke (No.2) (2004) N2635
The State-v-Biason Benson Samson (2005) N2799
The State-v-Ndrakum Pu-Uh (2005) N2949
The State v Tiama Esrom (13.4.06) N3054
The Penias Mosey (No.2) (2004) N2635
The State v Thomas Anger (21.4.05) N2830

Counsel:

L. Rangan, for the State
N. Kasa, for the Accused

11th July, 2013

1. LENALIA, J: The prisoner pleaded guilty to one count of persistent sexual abuse of a child pursuant to s.229D (1) & (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

Facts.

2. The undisputed facts to which the prisoner admitted to are that on unknown dates between January 2013 and July 2013 at Puipui village, Wairiki, Toma East New Britain Province, the prisoner persistently and sexually abused the victim Anastasia Paul who was by then 13 years old.

3. The prisoner is the stepfather of the victim. Since the victim was small, the prisoner got married to her mother Antonia. Sexual abuse started when the prisoner and his wife went to a house-karai of a death of a relative. Sometime in the middle of the night, the prisoner came back to their house and tied a laplap around the victim's mouth to stop her from shouting and he sexually penetrated her. After having sex, he returned to the house-karai. When the prisoner and his wife returned to their house that morning, the victim reported to her mother. That was the beginning of the persistent trend of sexual abuse.

4. Whenever the prisoner wanted sex, he would come to the victim and persuade her to have sex. The victim said in her statement that, the prisoner treated her like his wife. On that first time he had sex with her, when she told her mother, the mother spoke to the prisoner but nothing happened.

Addresses on Sentence

5. In his address on allocutus, the prisoner said, he is sorry to the victim and their community. He said sorry to the court. He asked for leniency on sentence.

6. Ms. Kasa submitted the following mitigations and asked the court to consider them on sentence:

✓ The prisoner's guilty to this very serious charge.
✓ His co-operation with the police investigating officers and the admission on the record of interview.
✓ He showed remorse in allocutus.
✓ His previous good character.

7. Counsel submitted, this was a case where the victim was and is a step-daughter of the prisoner and the court should consider such factor s on sentence. She did not submit for any compensation.

8. Mr. Rangan submitted that the offence committed by the prisoner is serious as it carries the maximum penalty of 15 years but if if the offence is committed with aggravations such as the instant case, the maximum penalty is life imprisonment.

9. Mr. Rangan referred to one or two cases where terms of imprisonment imposed were high because of the breach of trust.

Applicable Law

10. The prisoner is charged with the crime 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 victim was the daughter or step-daughter of the prisoner.

11. 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 define by Subsection (6) and s.6A of the Code, an imprisonment term of life imprisonment is available for such cases. That is what Subsection (6) of s.229D of the Code states.

12. The prisoner is charged for sexual penetration of an underage victim and he breached the trust repose on him by the victim as a father. Persistent sexual abuse is punishable by an imprisonment term of 15 years according to s.229D of the Act and if sexual intercourse took place more than one occasion a person can be sent to jail for life imprisonment. The above Section states:

"(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 the crime of persistent abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) For purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a)must specify with reasonable particularity the period during which the offence against this section occurred; and

(b)must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(a)the court must be satisfied beyond reasonable doubt, that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and

(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be satisfied about the dates or the order of those occasions.

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and liable, subject to Section 19, to life imprisonment."(Emphasis added).

13. The sentence trends on sexual abuse cases have seen some increase over the past few years depending of the facts of each case. Note worthy is the definition Section of 349 of the Act. Often defence counsels would try to trivialize their clients' cases by submitting that, say for instance in incest cases or any other sexual penetration cases by saying that the case is not the worst type case. The Act itself sets out and defines circumstances of aggravations in Section 349 . That section states:

"349A. Interpretation.

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where –

(a)the accused person is in the company of another person or persons; or

(b)at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or

(c)at the time of, or immediately before or after the commission of the offence, the accused person tortuous or causes grievous bodily harm to the complainant; or

(d)the accused person confines or restrains the complainant before or after the commission of the offence; or

(e)the accused person, in committing the offence, abuses a position of trust, authority or dependency; or

(f)the accused is a member of the same family or clan as the complainant; or

(g)the complainant has a serious physical or mental disability; or

(h)the complaint was pregnant at the time of the offence; or

(i)the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS)."(Emphasis added).

14. There are very serious aggravating circumstances involved on this case. They include:

• abuse of trust,
• very close blood relative,
• persistent sexual abuse,
• was in the position of authority in that he was the step-father of the victim.
• and the age gap between the victim and the prisoner was big.
  

15. I have discussed some of the above factors. I wish to stress the element of abuse of position of trust. Obviously, if the prisoner cannot respect members of his own family, how can he expect the people in his community to respect him?

16. The element of breach and trust is a very serious aggravation. Subsection (6) of the section charged is clear. It says that, if one or more of the occasions involved acts of sexual penetration, an offender is liable, to life imprisonment."

17. The definition under s.6A (2) of the above Criminal Code also applies in the case of the prisoner. It states:

"(1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A relationship of trust, authority or dependency" includes, but is not limited to, circumstances where –

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, Sibling (including step-sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counselor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care or control." (Emphasis added)

18. The definition section that is s.1 of the Criminal Code defines the phrase
Circumstances of "aggravation" in the following words:

"Circumstatnces of aggravation" "includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance."

19. The prisoner's case falls under the above definitions. He committed the crime of persistent sexual abuse by penetration on his stepdaughter from even before 2013 until the complaint reported. Following that, the prisoner paid compensation and the victim thought that would be the end. However, the prisoner continued to have sex with her. Sexual intercourse had with someone within the family unit has always been serious.

20. The concern law does not prescribe the death penalty but instead places the maximum at life. On this case, circumstances of aggravations are present on the instant case. The mother of the victim knew about what was happening because after the first act of sexual intercourse, Anastasia reported to her mother.

21. The case of The State-v-Sottie Apusa [1988-89] PNGLR 170 establishes that where a sexual offence of this nature is committed between persons having relationship of trust authority and dependency it is an aggravation. Further 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 high. In your case the victim was and is your stepdaughter.

22. The offence that you committed was not a one off incident. You abused the victim for a period of time in the guise of being step-parent. In considering the circumstances of a particular case, the court must consider the circumstances under which the crime of sexual nature was committed. In The State-v-Biason Benson Samson (2005) N2799 Cannings; J restated a list of considerations for sentencing in respect of sexual abuse of children either by penetration or otherwise, that he had previously mentioned in The State-v-Pennias Mokei (No 2) (supra).

23. Such considerations have been adopted in many cases. Those considerations include issues such as:

(a) Is there only a small age difference between the offender and the victim?

(b) Is the victim not far under the age of 16 years?

(c) Was there consent?

(d) Was there only one offender?

(e) Did the offender use a threatening weapon and not use aggravated physical violence?

(f) Did the offender cause physical injury and pass on a sexually transmitted disease to the victim?

(g) Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?

(h) Was it an isolated incident?

(i) Did the offender give himself up after the incident?

(j) Did the offender cooperate with the police in their investigations?

(k) Has the offender done anything tangible towards repairing his wrong such as offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?

(l) Has the offender caused further trouble to the victim or the victim's family since the incident?

(m) Has the offender pleaded guilty?

(n) Has the offender genuinely expressed remorse?

(o) Is this his first offence?

(p) Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?

(q) Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

24. I adopt the above considerations and apply them to the circumstances of the instant case. The above considerations are useful guidelines to be considered in sentencing for child abuse cases.

25. I would emphasis the fact that it is for the trial judge or magistrate to determine the sentence to be imposed after having regard to all of the circumstances of the particular case before him.

26. In The State-v-Philip Komo (2009) N3816, the offender was charged with aggravated rape of his step-daughter similar to the instant case. It was a trial and the offender was found guilty. He was sentenced to 18 years by Ellis J in Kavieng. In The State-v-Jerome Deila (2009) N3840 a similar case as the one before me, aggravated by existing relationship of trust, authority or dependency. Davani J sentenced the offender to 15 years.

27. The prisoner's case falls into that category. The maximum penalty prescribed by s.229D (1) (6) is life imprisonment. As I have stated earlier, the Court has discretion to impose a term of years. My view is, it does not only mean that because the prisoner is the adoptive father of the victim so the offence is aggravated by breach of trust. No, s.229D (1) (6) covers anyone caught committing persistent sexual abuse who may not be related biologically or by lineal descendents alike.

28. On the sentencing discretion of the National Court, the Supreme Court in Stanley Sabiu v The State (2007) SC866 while reviewing suggested guidelines for sexual penetration cases in the cases of The State-v-Pennias Mokei (No 2) (2004) N2635 and The State-v-Ndakum Pu-Uh (2005) N2949 the Supreme Court in Stanley's said:

"We are of the view that the above are useful guidelines to be considered in sentencing for child sexual penetration cases. We emphasis however that it is for the trial judge to determine the sentence to be imposed after having regard to all of the circumstances of the particular case before him."

29. Having considered all circumstances of this case such as the mitigations together with the aggravations, the maximum penalty ought to be reserved for the worse type case: AMaima v Sma [1972] PNGLR 49. On the circumstances of the instant case, I consider that the appropriate penalty should be a sentence of eighteen (18) years imprisonment. The prisoner is sentenced to 18 years imprisonment. The custody period shall be deducted from the balance if he was in custody. His bail money shall be refunded to him if he is on bail.
___________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused