State v Ndrowoh [2016] PGNC 181; N6374 (22 June 2016)

N6374

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 751,752 & 753 of 2016

THE STATE

V

FELIX NDROWOH

Lorengau: Geita J
2016: June 15, 22

CRIMINAL LAW – Sentence – Guilty plea – Section 229A (1) (2) (3) Criminal Code Act as amended.

CRIMINAL LAW – Guilty Plea – Deposition Evidence – Mitigating and Aggravating circumstances – First time offender- no serious assault- no weapon used- Violation of existing relationship of trust, authority and dependency- Victim 10 year old biological daughter.

CRIMINAL LAW - Pre sentence report – part custodial sentence recommended – Deterrence opted for - Sentenced to 19 years less pre-trial custody period – Probation considered in appropriate.

PNG Cases Cited:

Goli Golu v The State [1979] PNGLR 653
John Kalabus v The State 1988 PNGLR 19
Rex Liau v The State [1990] PNGLR 487
Robert Solomon v The State [2007] SC 871
Sabiu v The State [2007] SC
State v Borei [2007] PGNC 245: N5489
The State v Kutetoa (2005) N281, Cannings J
The State v Magu [2008] PGNC 299: N3878
The State v Penias Mokei (No.2) (26.8.04) N2635
The State v Sak Klom [2014] N5833
The State v Thomas Angup [2005] N 2830
The State v William Eiya CR 1283 of 2006, unreported 25 June 2008, Davani J

Counsel:

Ms. R Koralyo, for the State
Mr. T Kale, for the Prisoner

JUDGMENT ON SENTENCE

22 June 2016
1. GEITA J: The prisoner Felix Ndrowoh pleaded guilty to one count of sexual penetration of a child (his biological) with whom the person has an existing relationship of trust, authority or dependency contrary to s.229A (1) (2) (3) of the Criminal Code Act as amended. This offence attracts a maximum penalty of life imprisonment however Section 19 (1) (a) (b) of the Criminal Code gives courts powers to impose lesser sentences.

The Facts

2. The relevant facts put to you during your arraignment and the agreed facts by the prosecution and your lawyer on the depositions for the plea of guilty with your consent are these. On 14 December 2015 between 4 pm and 5 pm you returned home with your two daughters after making sago. After the complainant, then 10 years had put her younger sister to bed you told her to sleep with her in bed. You than removed her skirt and sexually penetrated her by inserting your penis into her vagina. Despite you telling her not to tell anyone she reported the matter to her mother as she returned home from sago making. Upon reading the court deposition I was satisfied with evidence of your admissions and accepted your plea and recorded it accordingly.

Allocutus
3. During the administration of allocutus or when you were given the opportunity to speak on the question of penalty you admitted the wrong committed and asked the court for leniency on you. You said you have done wrong to your daughter and said sorry to your daughter and wife. You told court that you were the only one working and you have old aged parents. You further pleaded to court to have you considered for probation and to have the matter resolved through custom. Furthermore you were a teacher by profession.

Mitigation Circumstances

4. 1. No prior convictions, first time offender
2. No weapons were used during the crime
3. Prisoner cooperated with police
4. Early guilty plea in your record of interview

Aggravating Circumstances

5. 1. The victim was a child 10 years old and was your daughter.
2. You were in a position of trust, authority and dependency.
3. Victim will remain with physical and psychological scars for life.

Pre- Sentence Report- Community Attitudes

6. A pre sentence report prepared and submitted on your behalf by Senior Probation Officer Nancy Poli amongst other recommendations suggested that a long term Probation be considered for you with supervision and counselling. Her recommendations however were made under the backdrop of real fears with you reoffending considering you have two wives and four daughters. You’re aged 32 years old, married with two wives and four children. Your father stands ready to assist you with compensation. Your community has mixed feelings: Some see you as a hard working father and teacher whilst others fear for you reoffending. Their fear is made real in that you were married to two women and your recent actions show that your sexual drive remains a concern and danger to others in your community. This is more so with the fact that you are a teacher and have students under your control.

What is the law on abuse of trust, authority or dependency? Section 229A Code has this to say:

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

(2) & (3) If the child is under the age of 12 years and there is an existing relationship of trust, authority or dependency between the accused and the victim: Subject to section 19 the penalty is imprisonment for life.

Section 6A Code describes relationship of trust, authority of dependency in this way:-

8. (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 &#82i>

(a) (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 or the complainant; or

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

(g) the accused is a heath 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.

Submissions on Sentence

9. Defence Lawyer Mr. Tom Kale submitted that the circumstances of the case do not warrant the imposition of the maximum life imprisonment. In light of the prisoners guilty plea, no prior conviction and no physical harm caused to the complainant he submitted that Court consider a starting point of 10 to 20 years. The prisoner’s case be determined on its own peculiar facts and circumstances: (Rex Liau v The State [1990] PNGLR 487. The following case precedents were presented to court to demonstrate to court that the matter now before me be distinguished and not so serious. (The State v Thomas Angup [2005] N 2830, The State v Sak Klom [2014] N5833 and Robert Solomon v The State [2007] SC 871). The two first cases with multiple charges and the last case conceded to be date. Mr Kale invited the court to also consider sentencing options available under Section 19 (6) Criminal Code Act and your Pre sentence report.

10. The Public Prosecutor Ms Rebecca Koralyo in her written submissions called for a custodial sentence in view of the crime being prevalent and the need for young children to be protected by the legal justice system. The cases of The State v Borei [2007] PGNC 245: N5489 and The State v Magu [2008] PGNC 299: N3878 were presented to court to assist it in sentencing. In the Borei case Justice Cannings conveniently listed cases determined by counts under Section 229A and devised a series of questions numbering 17 in all in assisting court in arriving at what should a reasonable head sentence be. For instance; is there a small age difference, physical injury present etc. His Honour gave an excellent summation and a comparable table of case on sexual penetration under s.299A thus far dealt wit he courts. To this I am grateful and will use this case as a guide in determining what should be an appropriate head sentence. His Honour Kandakasi J also made reference to the above case.

Decision of the Court

11. The first issue is whether the offence committed by the prisoner is of the worst type and whether the court should impose the maximum prescribed sentence. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus 1988 PNGLR 193.

12. The second issue is framed in this question and that is what an appropriate sentence in your case is? I have had the benefit of submissions from both lawyers on all relevant issues. I also have had the benefit of a pre sentence report presented to me. My deciding on what the appropriate sentence I should impose on you is and whether parts of your sentence should be suspended, will depend on points favourable to you and points against you.

13. The laws on sexual offences against children is founded in s.229A to s.229V of The Criminal Code Act as amended. The offences contained therein range from between 5 years – 25 years, subject to Section 19, to imprisonment for life.

14. Having had the benefit of accessing two National Court judgments in which amongst other crimes the existing relationship of trust, authority and dependency were violated, prison terms ranging from 17 years to 18 years were imposed. (The State v Kutetoa (2005) N2814. Cannings J; The State v William Eiya CR 1283 of 2006, unreported 25 June 2008. Davani J.)

15. His Honour Cannings J in the case of The State v Penias Mokei (No.2) (26.8.04) N2635, said amongst other considerations in sentencing offenders on charges of sexual abuse under the Act the need to consider “the level of breach of trust” existing at the time. The closeness of that relationship of trust between the accused and the victim increases the seriousness of betrayal of trust, hence warranting a much higher penalty. In most Papua New Guinean societies their relationship is that of father/adopted daughter or in the words of the victim the prisoner was referred to as “papa”. Be that it may the crime is akin to incest, hence serious. Cannings J, sentenced the offender to 15 years imprisonment. At the time of the offence, the complainant was aged 13 years and the offender was 33 years old. There was no breach of existing relationship of trust. The prisoner was a first time offender. He pleaded guilty. During the same year in 2007 the Supreme Court in the case of Sabiu v The State [2007] SC adopted a starting point of 15 years in cases involving violence of children under age 12 years.

16. With respect those landmark cases were decided some 9 years ago and circumstances have changed dramatically for the worse as this crime appears to be on the upward trend. The case now before me is one such case, hence the need for tougher penalties to be imposed by Courts. The pre-sentence report prepared on behalf of the prisoner attests to this call from the prisoner’s community for a deterrence sentence citing him to be a danger to the public, more so his community and his three young female daughters.

Sentence in your Case

17. I am indebted to the excellent collection and analysis of like case by his Honour Cannings J in the case of Pernia Mokei (supra) and the Supreme Court case of Sabui (supra). I will adopt and apply the key principles contained therein. A 17 point question and answer formula was devised by Cannings J in association with other mitigating and aggravating factors in determining a starting point in under age children sexual penetration cases. For the moment I shall refer to this formula as the “Cannings 17 Point Formula”.

What is the head sentence?

“There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor.

The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

Three sorts of considerations are listed. Numbers 1 to 9 focus on the circumstances of the incident. Numbers 10 to 14 focus on what the offender has done since the incident and how he has conducted himself. Numbers 15 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.” Per Cannings J

“Cannings 17 Point Formula”

1 Is there only a small age difference between the offender and the victim? No – the offender was aged 31 and the victim 10, an age gap of 21 years.	No
2 Is the victim not far under the age of 16 years?	No
3. Was there consent? No. The victim was so young that she cannot be regarded as having consented.	No
4 Was the form of penetration other than penile penetration? No.	No
5 Did the offender not use a threatening weapon and not use aggravated physical violence? Yes.	Yes
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim? Yes.	Yes
7 Did the incident have only a minimal impact on the child? Neutral. There is no evidence of a severe adverse impact on the child.	Neutral
8 Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one? Yes.	Yes
9. Was it an isolated incident? Yes.	Yes
10 Did the offender give himself up after the incident? Yes.	Yes
11 Did the offender cooperate with the police in their Investigations? Yes.	Yes
12 Has the offender done anything tangible towards repairing his wrong, e.g. offering compensation, engaging in reconciliation, organising counselling and support for the victim or personally or publicly apologising for what he did? No.	No
13 Has the offender not caused further trouble to the victim or her family since the incident? Yes.	Yes
14 Has the offender pleaded guilty? Yes.	Yes
15 Has the offender genuinely expressed remorse? Yes.	Yes
16 Is this his first offence? Yes.	Yes
17 Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?	No

18. There are ten mitigating factors and six aggravating factors. Now applying the Canning’s principle, the prisoner ideally considering all other circumstances of the case including the strength of the guilty plea a relative head sentence of ten years imprisonment would be imposed. On a random selection of previous National Court cases relating to sexual offences against children, it is evident that sentences appear to be on an upward trend. One possible reasons of this trend is the prevalence of this crime over time. The case before me is no different.

19. The two cases I referred to above were decided in 2007, some 9 years ago. It follows that due to changed circumstances and the prevalence of such crime slightly higher penalties are best considered as deterrence.

20. I venture to add three more consideration which are peculiar to this case in that the prisoner is married with two wives and has three young daughters. He is an elementary teacher by profession. His peculiar circumstances in my view now pose real dangers to his three daughters and the young children under his case as a teacher. Unfavourable factors which must go against him in sentencing. This fear was captured in the pre-sentence report prepared on behalf of the prisoner calling for his incarceration.

21. In your case there was breach of existing relationship of trust. The offence infringes and violates the fundamental duty of fathers and mothers to care for their children and raise them up in the manner expected by the Constitution and the Law. I make special allowance for your guilty plea, no previous convictions, you are remorseful. After having considered all the information before me in your favour and against you I have come to the conclusion that 19 years to be the appropriate starting point in your case. I do not consider it appropriate under the circumstances to invoke my powers under s 19 (1) of the Criminal Code Act nor consider Probation appropriate. The sentence I now imposed upon you is as follows:-

You are sentenced to 19 years imprisonment in hard labour, less any pre-trial custody period available to you.

Your warrant to commit you will be issued in due course.

Ordered accordingly,

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the accused