State v Fred (No.2) [2014] PGNC 261; N5758 (14 April 2014)

N5758

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 380 OF 2013

THE STATE

V

STEVEN FRED
(NO.2)

Kokopo: Lenalia, J
2014: 1st, 12th & 14th April

CRIMINAL LAW – Sexual touching – Sentence after a finding of guilty – Criminal Code (Sexual Offences and Crimes Against Children) Act, s.229D (1) & (4)

CRIMINAL LAW – Sexual penetration of an under aged child – Sentence after findings of guilty – Criminal Code, s.229A (1) (2) & (3)

CRIMINAL LAW – Sentence – Sexual penetration and sexual touching committed with breach of trust – Sentencing principles

Cases cited.

Maima v Sma [1972] PNGLR 49
State v Peter Yawoma (2001) N2032)
The State v Kagewa Tanang (2003) N2941
The State v Kiddi Sorari (2004) N2553
The State v Paul Nelson (2005) N2844
The State v Thomas Angup (2005) N2830
State v John Ritsi Kutetoa (22.3.05) N 2814
The State-v-Thomas Tukaliu (2006) N3026
The State v. Kaminiel Okole (2006) N3052
Stanley Sabiu v The State (2007) SC866
The State v Ima Esiko (2009) N3607

Counsel

Mr. L. Rangan, for State
Mr. S. Inisi, for Accused

14th April, 2014

1. LENALIA, J: On 1st of this month, this court found the prisoner guilty on two sexual charges. The first of the two charges is one of sexual touching and the second one for sexual penetration of an under aged girl. The charges were laid pursuant to s. 229B (1) (a) (4) and s. 229A (1) (2) & (3) of the Criminal Code.

2. In brief, the evidence upon which the prisoner was found guilty and convicted was that, on 22nd January 2013 between 7am and 4pm, the victim Evodia July, was in her parents' house at Vunabakut in Kokopo town. During that day, her parents were away at work. With her were two aunties, an elderly uncle and her two small brothers.

3. According to the victim the prisoner returned from work and came and stayed outside the house with the little boys for some time. Then he walked into the house and whistled and made signals to the victim to come into the house. She obeyed and when the two of them were in the house, the prisoner took her into the master bed room. When they were in the room, he closed the door, then he lifted her shirt and started to touch her breasts. He did it for some time then he started to suck her breasts and whilst doing that, he commenced to push his fingers in and out of her vagina and anus.

4. After doing those, he inserted his penis into her vagina and pushed it in and out. The evidence established that when the victim felt pain, the prisoner withdrew is penis. Then after that he continued to push his fingers in and out of the vagina and anus.

Addresses on Sentence

5. On 5th this month, I heard addresses on sentence. In his allocutus, the prisoner said, he is sorry for what he did. He asked for leniency. He asked the court to consider his past good behaviour and that he is a first offender. By the way the prisoner was expressing his remorse, he implied that, the court found him guilty for something he did not do. He asked the court to give him shorter terms of imprisonment for the two offences he was found guilty of.

6. Mr. Inisi of counsel for the prisoner asked the court to consider the following mitigation:

➢ The prisoner's expression of remorse,
➢ He is a first time offender,
➢ That the victim did not suffer physical injuries,
➢ That she did not contact any sexually transmitted diseases,
➢ No weapons were used and
➢ The court should not consider the evidence by the victim of persistent sexual abuse.

7. Counsel's submission is that, because the prisoner is the first time offender, the court should consider lighter penalties partially suspended.

8. For the prosecution, Mr. Rangan addressed the court on the seriousness of the two charges which were committed in breach of trust. The reason for this is because the prisoner had been living with the family of Evodia and that family provided food and accommodation to the prisoner since 2012 until the offences were committed in January 2013.

9. Counsel submitted that any penalties imposed, the court should consider the fact that, the prisoner did what he did in the process of manipulating the victim and sentence should have concurrent effect.

Applicable Law

10. The first count pleads that at the time of the offence, the victim was under the age of 12 years. What the prisoner did is contrary to s.229B (1) (a) of the Criminal Code (Sexual Penetration and Sexual Offences Against Children) Act 2002. This provision states:

"229B. SEXUAL TOUCHING.

(1) A person who, for sexual purposes –

(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or

(b) compels a child under the age of 16 years to touch, any part of his or her body, the sexual parts of the accused person's own body, is guilty of a crime.

Penalty: Subject to Subsection (4) and (5), imprisonment for a term not exceeding seven years."

(2) For the purpose of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.

(3) For purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.

(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term of not exceeding 12 years.

(5) 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 to imprisonment for a term not exceeding 12 years."

11. Note the wording of Subsections (4) and (5) which provide penalties for cases involving circumstances of aggravation. Where an offender is charged for sexual touching of a girl under the age of 12 years or where a person engages in a sexual touching with an existing relationship of trust, authority or dependency. In both cases, the maximum penalty is 12 years imprisonment.

12. On sexual penetration, s.229A (1) (2) (3) states:

"(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."

13. The prisoner must realize that what he did to the victim offended against the law and the maximum penalties he committed are 12 years for sexual touching and for sexual penetration is life imprisonment. This is because, the offences he committed against the victim was when she was under the age of 12 years. She was in fact 9 years old at the time he committed the crimes against her. It has always been said, that victims under age are children. They are not in any way ready for sexual exposure. The following discussions reflect on the concerns that have been expressed in various National Court Judgments of various Judges and even the High Court of this nation.

Principles of Sentencing

14. Sentencing trends by the National Court Judges on sexual assault or similar charges as sexual offences on the recent past has fluctuated from terms of imprisonment to wholly suspended sentences. I will cite some cases to illustrate that point. The prisoner's case may not be similar to the case of The State-v-Thomas Tukaliu (2006) N3026. In that case, the prisoner pleaded guilty to two counts of sexual touching of a 10 years old victim with aggravations of an existing relationship of trust, authority or dependency. He had on previous occasions sexually touched the victim many times. He was sentenced to 5 years imprisonment. Three years were suspended with conditions. He only served 2 years.

15. In The State v Ima Esiko (2009) N3607, the prisoner pleaded guilty to sexually assaulting a woman. In that case, the prisoner and the victim were neighbours. The prisoner touched the victim's breasts to arose her sexual feelings. She rejected such approach. He persisted and touched her genital area and around the groins. He pulled the victim's trousers down then tore her panties. The prisoner pleaded guilty. He was sentenced to 3 years imprisonment. The pre-trial custody period was deducted and the balance was suspended.

16. In the case of The State v Thomas Angup (21.4.05) N2830, the prisoner pleaded guilty to a charge of sexual toughing of his step daughter. He was convicted and sentenced to a term of 6 years. So was in the case of The State v Kagewa Tanang (2003) N2941, the victim was the daughter of the prisoner's brother. He pleaded guilty to one count of sexual touching, he was sentenced to 6 years.

17. In The State v Paul Nelson (25.5.05) N2844, the accused pleaded guilty to one count of sexual touching against s.229B. He was sentenced to three years imprisonment. He was ordered to serve one year only with two years to be suspended by order of the court if and when the application for suspension is granted.

18. In sexual penetration cases, sentences also vary from case to case. In State v Thomas Angup (supra) where the prisoner was charged with various counts of sexual penetration and sexual touching of an underage girl. He was convicted on his plea. The victim was age 12 and the prisoner was 34 years. It was a case involving breach of trust. Lay J, sentenced the prisoner to 20 years imprisonment.

19. In State v John Ritsi Kutetoa (22.3.05) N 2814 a case here in Buka, Cannings J; sentenced the offender to 17 years for a similar offence. The victim in that case was under the age of 12 years. That case was aggravated by a number of factors such as the age, very large age difference, and there was no consent from the victim. As well the offender caused physical injuries to the victim.

20. In The State v. Kaminiel Okole (2006) N3052, on guilty pleas, this Court imposed sentences of nine (9) years and eight (8) years respectively for the first two (2) counts of sexual penetration pursuant to s.229A (2)(3) ordered to be served consecutively and five (5) years for the third count for breach of trust, authority or dependency contrary to s.229E (1) which was to be served concurrently with count two (2). That was a case involving breach of trust, authority or dependency.

21. The Court ordered that two (2) years suspended from the head sentence of seventeen (17) years on condition that the prisoner served fifteen (15) years of his sentence.

22. Recently in the Supreme Court case of Stanley Sabiu v The State (27.6.07) SC866 it set out some general considerations for a sentencing Judge to consider when sentencing an offender for sexual penetration of under-aged children. Sexual penetration of under age children is a heinous crime and is quite prevalent.

23. As to an appropriate sentence to be imposed in the circumstances, in the Supreme Court decision of Stanley Sabiu v The State (2007) SC866 after reviewing five (5) various National Court decisions in relation to or concerning Section 229A(1)(2)(3) Criminal Code, the Court said at the last sentence of paragraph 9 and paragraph 10:

"In 5 cases where the victims were between 13 and 15 years of age, sentences of imprisonment imposed were 20, 17, 15, 12 and 10 years.

The general principles of sentencing provide that the maximum sentence is reserved for the worst cases: Maima v. Sma [1972] PNGLR 49. The maximum sentence for sexually penetrating a child under the age of 16 years is 25 years imprisonment and the maximum sentence for sexually penetrating a child under the age of 12 years is life imprisonment. What should the starting point be in such cases? In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that the sexual penetration of children under the age of 12 years is the more serious, hence the larger maximum penalty. In The State v. Biason Benson Samson (supra) Cannings J. determined that the starting point in a case involving a 13-year-old victim was 15 years imprisonment. We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than 15 years imprisonment."

24. As can be seen from the comments above, the Supreme Court did not specify the starting point for offences involving victims at the age of 15 years as it said an offence involving victims at the age of 12 years is very serious. On the present case, the victim was at the age of 9 years and the facts or evidence shows she may have consented to sex and sexual intercourse continued until they were found out.

25. Like any other offences, sexual offences are serious in nature as they infringe on the rights of women particularly if they are committed with force and violence and where as was in this case, the victim was aged 9 years. According to the victim's certificate of birth, she was born on 20th April 2003. At the date she was sexually abused, she would have been about 9 years and 9 months. At the time the offence was committed, the prisoner was about 22 years of age. The age gap was more than thirteen years.

26. The amendment to most of the sexual offences in the Criminal Code was aimed at protecting children against sexual exploitation and abuse. The people of Papua New Guinea had decided through their elected leaders in the National Parliament to change the law and express their abhorrence against this sort of conduct. The people have spoken through their leaders indicating that, Papua New Guinea cannot tolerate children being abused. It makes sense, that people must care and respect their children who will become future leaders of this nation.

27. The general principle of sentencing in criminal practice in this jurisdiction is the maximum penalty is reserved for the worst cases encountered in practice: Maima v Sma [1972] PNGLR 49. The maximum penalty for sexual penetration of a child under the age of 12 years is 25 years imprisonment and the maximum sentence for sexually penetrating a girl where there was an existing relationship of trust, authority or dependency between the accused and the child is life imprisonment subject to s.19 of the Criminal Code.

28. Sexual abuse of young children is very common in this Province. In this country there is an out-cry to increase punishments for sexual offences. Death penalty has been proposed for the offence of rape. The theme of sexual abuse of our women and young girls whether under age 12 or above is being seriously and adequately addressed by the Parliament. This result in amending certain provisions of the Criminal Code which are now contained in the Amended Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

29. I adopt the considerations stated above and apply them to the circumstances of the instant case. The above considerations are useful guidelines to be considered in sentencing for child sexual penetration cases. I would emphasis the fact 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. (See Stanley Sabiu-v-The State (supra). 30. Like on the instant case, it was not as isolated incident. The prisoner had repeated sexually abused the victim over a period of time.

31. Having considered all mitigating factors and circumstances of aggravations, the terms of the pre-sentence report, I consider a imposing a custodial penalty because aggravating factors weigh heavily on the prisoner as the victim was first like an uncle to you and secondly, she was under the age of 12 years when you committed the crimes against her.

32. The third aspect of such aggravations is that, you persistently sexually abused the victim. Though such aggravation was not pleaded in the indictment, no rule of law prevents the court from referring to the third aspect of such aggravations.

33. The maximum penalty for sexual touching is 7 years. If it is aggravated by an existing relationship of trust, authority or dependency, the maximum penalty is 12 years. In your case, you could be sentenced to 12 according to s.229B (4) & (5) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 because you sexually touched the daughter of your cousin sister.

34. The charge of sexual penetration of underage girls as was in this case where the victim was a little over 9 years, under the age of 12 years committed against s.229A) (2) (3) of the Code carries the maximum penalty of life imprisonment due to the aggravations defined in the above section. In case of the prisoner, he could be sentence to life imprisonment this morning.

35. I have considered counsels submissions on mitigations and aggravations. I have also considered the prisoner's expression of late remorse for what he did to his knees. I consider the fact that the victim did not suffer any injuries physically. However she certainly suffered great emotional distress and pain due to what the prisoner did to her.

36. In my observation of the victim during the trial of these two case, I was of the view that the victim had actually developed psychological disorder. This is because, the abuse of the victim could have led to such psychological and emotional problems. What I say on this paragraph is an obiter dictum opinion only and the court will not consider this on sentence.

37. The reason for raising the concern above is because, I note that numerous sexual and other violent offence cases clearly show that, victims of such offences continue to suffer ongoing psychological traumas. In countries like Australia and elsewhere, there are readily available appropriate medical services to assist victims to overcome such problems. Such services are not available in this jurisdiction. Such specialist medical services are almost non-existent. (See the State v Peter Yawoma (2001) N2032).

38. This means victims particularly in cases like the instant case where the victim was abused for over one year and she was very young, such victims will suffer for the rest of their lives. The victim may have been 8 years when the prisoner started molesting her. Therefore, the fact that the victim in this case suffered no physical harm does not necessarily operate in the prisoner's favour.

39. I consider the principle developed in the case of The State v Kiddi Sorari (2004) N2553 where the court said that even in sexual cases where there is no existing relationship of trust, authority or dependency, there is a de facto concept of community responsibility to our young children and the women in our communities.

40. Considering other mitigations in your favour and the aggravations in your cases, your expression of remorse has no merits as it was made at the 11th hour. I thank Mr. Rangna for the reference you made in your submission on cumulative and concurrent sentences principles. Cases such as The State v Aur Sivi [1981] PNGLR 514 or the earlier ones like that of Wari Mugining v The Queen [1975] PNGLR 325 establish that where there is a string of offences committed in the process of committing an offence, sentence should be made concurrently.

41. In your cases, you are sentence to a term of 5 years imprisonment for the first Court. On the second count you are sentence to 17 years imprisonment. The two sentences shall be served concurrently upon each other. The custody period shall be deducted from the period to serve.

_____________________________________________________________
The Public Prosecutor: Lawyer for the State.
The Public Solicitor: Lawyer for the Accused.