State v Paina [2014] PGNC 93; N5621 (23 June 2014)

N5621

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 54 OF 2013

THE STATE

-V-

MANFRED PAINA

Alotau: Toliken, AJ.
2014: 23rd May

CRIMINAL LAW – Sentence – Sexual Penetration – Stepfather/step daughter – Mitigating factors – Early guilty – First time offender – Remorse - Extenuating factor – Open and persistent hostility by victim towards prisoner for marrying victim's mother – Aggravating factors – Close relationship of trust, authority and dependency – Prevalent offence – Appropriate sentence – 11years less pre-sentence custody period – Suspension inappropriate- Criminal Code act Ch. 262, s 229A (1)(3).

Cases Cited:

Yalibakut v The State (2006) SC 890
Stanley Sabiu v The State (2007) SC 866
The State v Peter Lare (2004) N2557
The State v Kemai Lumou (2004) N2684
The State –v- Pennias Mokei (No.2) (2004) N2635
The State v George Taunde (2005) N2807
The State v Binga Thomas (2005) N2828
The State v. John Ritsi Kutetoa (2005) N2814
The State v Tiama Esrom (2006) N3054
The State v Brown Kawage (2009) N3696

The State v Roy Lisenia; CR 645 of 2011(unreported and unnumbered

judgment dated 20th September 2011)

Counsel:

R. Luman, for the State
P. Palek, for the prisoner

JUDGMENT ON SENTENCE

23rd May, 2013

1. TOLIKEN, AJ: Manfred Paina, you pleaded guilty to the charge that:

"...On a date unknown in June 2012 at GADOVISU, RABARABA in Papua New Guinea [you] engaged in an act of sexual penetration with a child under the age of sixteen years, namely STELISA PAINA SIROPODI then aged 15 years old, by inserting his penis into her vagina.

AND AT THE TIME AFORESAID there was an existing relationship trust, authority and dependency between the said MANFRED PAINA and the said STELISA PAINA SIROPODI namely step father and step daughter.

2. This is an offence under Section 229A (1)(3) of the Criminal Code Act (as amended) (the Code) .

FACTS

3. The brief facts which you admitted and upon which I am about to sentence you are as follows:

The victim Stelisa Paina is your step daughter in that you are married to her biological mother. On an unknown date in June 2012 her mother was away at Dogura doing her market. At about midnight the victim was sleeping in her corner of your family home at Gadovisu when you went up to her and removed her cloths. She felt your presence and woke up. She told you that she would report you to her mother, however, you threatened her saying that you will stab her with a knife and then you proceeded to insert your penis into her vagina and then sexually penetrated her. Stelisa was then 15 years old. The State also said that as step father you were in a position of trust.

4. I entered a provisional plea of guilty plea. I confirmed it only after I had read the committal depositions and having satisfied myself that evidence supported the charge and your plea. I then convicted you.

ANTECEDENTS

5. You are 39 years old and come from Gadovisu village, Rabaraba, here in Milne Bay. You are married with 3 children and come from a large family of 4 brothers and 2 sisters. Your father is still alive but your mother is deceased. You are an Anglican but during custody awaiting trial you converted to Seventh Day Adventist Faith. You are a simple villager and were educated up to Grade 6 only. You have no prior convictions and you had been in custody for 1 year 9 nine months and 1 week awaiting your trial/sentence.

ALLOCUTUS

6. In your address to the Court, you said you were sorry for breaking God's law and Papua New Guinea Law and for dishonouring the flag. You apologised for dishonouring the victim, your family, the community of Alotau District and the people of Milne Bay. You said that you acted out of frustration because of the disrespect the victim had shown you. You said she would get angry and try to stop you from sleeping with her mother and often asked you to leave her. You tried to appease her by giving her and her mother's people a pig according to custom. That did not stop her and she continued to disrespect you even publicly. This is your first offence asked for forgiveness and you asked to be placed on good behaviour bond or probation.

SUBMISSIONS

7. Your lawyer submitted that yours is not a worst case. He said you committed the offence out of frustration because of victim's disrespect towards you despite your having killed a pig for her line for you to accept you. He cited several mitigating factors in your favour. These are that you're a simple villager having dropped out of Grade 6, are a first time offender, you entered an early plea and that you have shown remorse for your offence. Further more you co-operated with the police by making early admissions to them and you maintained that during the committal hearing. The victim did not contract any Sexually Transmitted Infections or fall pregnant.

8. Mr. Palek conceded, though, that you were in a position of trust, authority and dependency and that this is a very prevalent offence.

Counsel cited several cases to me which he said are similar to yours, three of the more relevant ones being The State v Tiama Esrom (2006) N3054, The State v. John Ritsi Kutetoa (2005) N2814 and The State –v- Pennias Mokei (No.2) (2004) N2635. I will presently discuss these cases. Counsel therefore submitted that an appropriate sentence for you should be between 8 – 12 years.

9. Mr. Luman on behalf of the State agreed that yours is not the worst kind. However, he said it was aggravated by the fact that you were in a position of trust – a very close one - that of step-father/step-daughter. The offence is also very prevalent and counsel said that frustration was not an excuse for your action. He said you had no right to do what you did and therefore the Court should not place any weight at all on your claim of frustration.

10. Counsel also cited a few cases which he said are cases in point that should assist the Court in deciding an appropriate sentence for you. These includes The State v Kemai Lumou (2004) N2684; The State v. John Ritsi Kutetoa (supra) and The State v Tiama Esrom (supra) which I will discuss further down in this judgment. The State therefore asked for a sentence between 10 – 17 years.

THE OFFENCE

11. Section 229A of the Code provides for the offence under consideration. It provides:-

"229A Sexual penetration of a child

(1) A person who engages in an act of sexual penetration of a child under the age of 16 is guilty of a crime.

Penalty: Subject to subsection (2) and (3) imprisonment for a term not exceeding 25 years.

(2) ....
(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".

12. In The State v Roy Lisenia; CR 645 of 2011(unreported and unnumbered

Judgment dated 20th September 2011) a case of an uncle/niece relationship I said:

"... it has been said in numerous times and cases by this court, and I say it again, that Parliament, in response to an escalating rate of sexual abuse of children, mostly of the most vulnerable and of the weaker sex, changed the law and imposed very stiff penalties to discourage the perpetration of this hideous crime against our children.

"The penalty under Subsection (3) of Section 229A of life imprisonment for cases involving existing relationships of trust, authority or dependency is the people's expression through Parliament of their disapproval and abhorrence of this deviant behaviour which in itself sentences victims to a life time of guilt, worthlessness, despondency and loss of dignity and self respect not to mention the emotional stress that may keep recurring throughout life.

"To my mind, the primary purpose of such penalties for this offence must be to deter and punish offenders, so that our children are fully protected from selfish and inconsiderate members of society and more importantly, those who are expected to care, nurture, provide for and guide them during this most vulnerable phase in their young lives who abuse the trust reposed in them. ..."

SENTENCING TREND

13 Let me consider a few cases to see the kind of sentences that this court has been imposing for this offence.

1. The State v Pennias Mokei (No. 2) (supra): There the 33 year old

prisoner was convicted after trial for sexually penetrating his 13 year old niece. The act was non-consensual, no violence was used, no compensation was paid but he co-operated with the police. He was sentenced to 15 years.

2. The State v Tiama Esrom (supra): There a grandfather of between 50 -60 years old sexually penetrated his 9 year old daughter. He was sentenced to 12 years, two of which were suspended with conditions.
   
3. The State v Kemai Lumou (supra). There, the Court imposed a sentence of 17 years on the 22 year old prisoner after trial for sexually penetrating his 14 year old in circumstances more akin to rape. He used a bush knife against the victim to threaten her into submission.
   
4. The State v Binga Thomas (2005) N2828: There the prisoner was imprisoned for 12 years on a plea of guilty on one count of sexual penetration of a child under the age of 16 years. There existed a relationship of trust, dependency and authority. The victim was 15 years old while the prisoner was 49 years old. The accused admitted in his record of interview that he had sex with the victim 44 times. The Court there also found that sex was consensual and that money was received by the victim.
   
5. The State v Brown Kawage (2009) N3696: There the prisoner was sentenced to 14 years for sexually penetrating his 14 year old niece. There were factors of aggravation as well as factor mitigating the offence.
   
6. The State v Peter Lare (2004) N2557. There the 40 year old prison was sentenced to 20 years for sexually penetrating his 12 year old adopted daughter. There was a serious betrayal of trust and the accused passed on an STI to the child. The State v George Taunde (2005) N2807 the prisoner was sentenced on plea to sexually penetrating his 13 year old niece.
   
7. The State v Roy Lisenia (supra). The 63 year old prisoner there sexually penetrated his 15 year old niece. He expressed some remorse but did not apologise to the victim or pay compensation. Some force was used to subdue the victim but the victim did not fall pregnant or contract a Sexually Transmitted Disease. Due to his advanced age and medical condition I sentenced him to 5 years which was then wholly suspended on condition. This was an exceptional case.
   

YOUR CASE

Mitigating Factors

14. I take the following mitigating factors in your favour. You pleaded early to charge and you co-operated with police from start making admissions and maintaining your admission in Committal Court. This is your first offence and you are a simple villager with a very low level of education. You apologised for your crime and the victim did not contract an STI or get pregnant.

Extenuating Factors

I also find an extenuating factor in your case. The victim's disrespect for you and her direct and persistent opposition to your marrying her mother despite your having slaughtered a pig for her and her mother's people in my mind constituted provocation in the non-legal and hence an extenuating factor. Without evidence to the contrary I apply the principle in Yalibakut v The State (2006) SC 890 in your favour.

Aggravating Factors

15. However, there are aggravating factors. Yours was a very close relationship of trust, authority and dependency. The offence is becoming prevalent here in Milne bay and elsewhere in the country. You used some threat of violence to secure submission by the victim.

Other Considerations

16. Other considerations that I take into account are that this was a one-off incident. There was no aggravated physical violence but there was a huge age difference of 24 years between you and the victim. There was no consent but even if there was it would have been effectual in law. And finally the victim was but a month shy of the age of consent.

Considerations on Appropriate Sentence

17. Now your case easily does not fall under the worst instance of sexual penetration of a girl under the age of 16 years. But what should be an appropriate sentence for you? What should be your starting point?

18. I must fix a starting point for you. Apart from the cases that I have cited above which bear some similarity to your case, I also find some guidance in Stanley Sabiu v The State (2007) SC 866. This was a matter involving the sexual penetration of a girl under 12 years of age. The appellant was sentenced to 17 years on a guilty plea. On appeal the Supreme Court dismissed the appeal and held that the starting point for sexual penetration of girls under 12 years of age should be 15 years.

19. So taking that as a guide I should think that in your case where the victim was but a month away from the age of majority a starting point for you should be 13 years. What then should be your head sentence?

SENTENCE

20. I have taken all your mitigating and aggravating factors in to account. I have also taken into account in your favour what I have said is an extenuating factor – a factor that has the effect of reducing your criminal culpability. That is that you were provoked in the non -legal sense by the victim's non acceptance of your marrying her mother and her open resentment and lack of respect for you to the extent as you said of even getting angry when you want to sleep with your wife.

21. Fair enough you are not expected to be better than the whole world in that you should exercise extreme restraint. So given the hostile attitude of the victim you were bound to snap and snap you did. Unfortunately for you, you took the wrong action and ended up violating your step-daughter and hence the law.

22. Despite of her attitude she did not deserve what you did to her and the law steps in now to punish you for violating her. The offence is aggravated because she stands in a position of dependency toward you. You stand in a position of trust and authority but that authority does not extend to abusing her, lesser still sexually.

23. So considering all the peculiar circumstances of your case I think that an appropriate sentence for you should be 11 years. I therefore sentence you to 11 years. I deduct 1 year 9 months and 7 days for time spent in custody awaiting your sentence. You would therefore serve 9 years 2 months and 23 days at Giligili Corrective Institution. Should any part of this be suspended?

Suspension – Whether Appropriate

24. In the absence of a Pre Sentence Report suspension would be inappropriate. (Public Prosecutor v Don Hale (1998) SC 564). It is also inappropriate in situations such as yours where the victim's mother is your wife. As I held in The State v George Rousela; CR 260 of 2013 (unreported and unnumbered judgment dated 08th of August 2013) and I quote from the head notes:

4. When considering whether or not 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 step-father/step-daughter 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.

25. You will therefore serve the full balance of your sentence. None of it will be suspended.

Ordered accordingly.
______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyer for the prisoner