State v Tubavai [2016] PGNC 380; N6624 (19 August 2016)

N6624

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS.972 OF 2015

THE STATE

V

NELSON TUBAVAI

Kokopo: Lenalia, J.

2016: 19^th, 26^th, 27^thJuly, 4^th&11^th& 19^thAugust

CRIMINAL LAW – Sexual offence – Persistent sexual abuse – Abuse with breach of trust authority and dependency – Guilty plea – Criminal Code (Sexual Offences and Crimes Against Children) Act 2000.Section 229D (6).

CRIMINAL LAW – Persistent sexual abuse of victim under age of 16 years – Victim age 14 at the time the abuse started – Persistent sexual abuse of a child – Sexual abuse with circumstances of aggravations (relationship of trust, dependency and authority – Sexual abuse of child a scourgeto society – Stiff punitive penalty required – Appropriate sentence – Head sentence of 10 yearsless pre-sentence custody period.

Cases cited

Maima v Sma [1972] PNGLR 49
Stanley Sabiu v The State (27.6.07) SC866
The State v AloisPadik (3.5.2016) Cr.No.1453 of 2014
The State v Danny Tutuve (2011) N4400
The State v Eremas Kepas (20.3.2007) N3192

The State v Ismael Kabian (21.6.2016) Cr. No. 1431of 2015
The State v Kila Depit (19.6.2015) Cr. No. 456 of 2015
The State v Martin Willie (7.12.2012) N5170
The State-v-Penias Moke (No.2) (2004) N2635
The State-v-Sottie Apusa [1988-89] PNGLR 170
The State v Steven Siname (2009) N3908
The State v Simon Ilikis (No.2) (17.6.2016) Cr.Nos.757 & 758

Other legislations
Criminal Law ( Compensation Act 1991).

Counsel:
Mr. L. J. Rangan, for the State
Ms. J. M. Ainui, for the Accused

19^th August, 2016

1. LENALIA J: The prisoner pleaded guilty to one count of persistent sexual abuse an offence contrary to s. 229D (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The indictment pleads that the crime was committed on four various unknown dates between 2012 and 2016.

2. Under s.229D (6) of the Code, where the breach involved penile penetration, that occurred more than one occasion, it is persistent sexual abuse. I quote the whole provision because it explains the law on the offence of persistent sexual abuse. It 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).

Relationship

3. Victim Jervinah Wauta (J. W.) and the offender Nelson Tubavai are close blood relatives. This is in the sense that the victim is the daughter of the offender’s sister. He refers to her as a niece or in Pidgin “uncle” because, she is the daughter of the biological sister of the prisoner. (See record of interview Q.23 and its answer).

Facts in Brief

4. Persistent penile penetration on this case was repeated more than once. The crime was committed in Matupit/Sikut blocks. On the record of interview, the offender was asked to explain how many times sexual intercourse between the two of them took place. The offender said, about eight times and they commenced having sex before 2014. Pleading on the body of indictment is correct that, sexual penetration commenced in 2012 and continued to 2015.

5. Persistent sexual penetration continued in April 2014 until April 2015. The record of interview records that, the two had sexual intercourse eight (8) deferent times. All acts of sex took place in the victim’s bedroom in the family house until one day at day time, Bolten Ereman (the prisoner’s brother) found the two out.

Addresses on Sentence

6. In his last say, the offender said sorry for what he did. He said sorry to the victim and his community. He said, this is his first appearance in the National Court. He promised, he will never commit any other offences in the future. He asked for mercy.

Pre-Sentence & Means Assessment Reports

7. Prisoner
The offender was contacted, his comments are:
-he gave the history of his place of origin,
- married to Betlyn from Watara Island on the Duke of York Islands,
- expressed remorse for what he did and,
- said, he cannot give any excuse for what he did,
- he now realizes the impact of crime he committed.

8. Raymond Tubavai:
-elder brother of the prisoner
-expressed great concern about accused behaviour,
-he is the elder brother of offender,
-victim is close relative of the Tubavai family,
-scotch to community and the church,
-there should be reconciliation both in the community and church.

9. Mrs. Betlyn Tubavai:
-wife of accused,
-asked the court to consider – (a) parties from same village,

(b) all family members from same denomination,

(c) actors closely related.

10. Mr. Solomon John.
-parties have settled through church involvement,
-impact caused to the family relations and community and their Church,
-focus should be on rebuilding relationship
-expressed concern that, the relationship existed for some time,
-reconciliation through compensation.

11. Mrs. Jina Ereman.
-mother of the victim,
-she is the biological sister of offender,
-offender should face full consequences of the crimes committed,
-there was breach of trust,
-breach of respect within family circle,
-demand for K5, 000.00 payable within 3 months,
-there should be family reconciliation,
-there be church reconciliation too.

12. The mother in her supplementary statement gave reasons why the victim could not be contacted for her comments. The victim is currently attending Napapar Primary Scholl where she is doing her Grade 8 this year and because, the family did not want to bother and disturb her during this time where she is preparing for her Grade 8 exams which are one or two months away, so they could not contact her.

13. Mr. Bolton Ereman, another brother of Jina victim’s mother expressed the same sentiments.

14. The defence counsel on behalf of their client asked the court to consider the following mitigations:

-prisoner’s guilty plea,

-his cooperation with the police interviewing officer,

-lack of prior conviction,

-prisoner age now 35 years,

-his genuine remorse and,

-the offender and victim’s relationship, and

-the victim did not get pregnant & no sexual deceases was passed on.

15. Counsel submitted that, all these matters should be considered by the court, together with comments of those contacted on the pre-sentence report. Counsel asked the court to consider no force or threats was applied toward the victim. She referred to the case of the State v Simon Elikis No.2(17.6.2016) Cr. Nos. 757 &758 of 2016.

16. Mr. Rangan, in his reply to the defence submission raised the serious aggravation of breach of trust, authority and dependency. Counsel submitted that, the victim and the offender are closely related and the maximum penalty is life imprisonment because, penile penetration took place more than two occasions.

17. He referred to the case of The State v Ismael Kabian (21.6.2016) Cr. No. 1431of 2015 where this court sentenced the offender to 14 years imprisonment partially suspended with compensation orders. Counsel raised concern that this case breached the customs of the Tolai community and the court should seriously consider an appropriate term of imprisonment and compensation.

Application of Law

18. The crime of persistent sexual abuse if committed without aggravating circumstances is punishable by 15 years imprisonment. If or where persistent sexual abuse is committed with aggravations like the instant case where it involved more than one occasion of penile penetration the maximum penalty is life imprisonment.

19. I now refer to some cases where offenders have been sentenced by Judges of this Court to varying terms of imprisonment. In The State v Martin Willie (2012) N5170, the offender pleaded guilty to one count of persistent sexual abuse with breach of trust, authority and dependency. He was sentenced to 10 years. In The State v Eremas Kepas (20.3.2007) N3192, a similar case. The offender was 60 years, while the victim was only 10. The penalty imposed was 12 years.

20. Recently at Kibil, in June this year, in The State v Simon Ilikis (No.2) (17.6.2016) Cr.Nos.757 & 758, a case of persistent sexual abuse by sexual touching. The crime was committed over a period of time from 2013 to 2015. He was sentenced to 12 years partially suspended. That case was one of digital penetration.

21. In an earlier case in the same District, in The State v Kila Depit (19.6.2015) Cr. No. 456 of 2015, at Kibil, in Molot, Duke of York islands, the offender was charged for persistent sexual abuse of a 9 year old victim. He abused the victim over a period of time. It was a trial. He was found guilty and sentenced to 20 years imprisonment.

22. In The State -v- Ben Sakias (2011) N4238, it was a guilty plea, the offender was 28 years old while the victim was 14 years. There was breach of trust, and the girl got pregnant. He was sentenced to 12 years imprisonment. In The State v Steven Siname (2009) N3908, the offender was charged with two counts of persistent sexual abuse of his biological sister. He was sentenced to
Consecutive sentences of 28 years partially suspended.

23. The National Court of this country has tried as much as possible tried to impose penalties that will act as deterrent to sexual crimes. But these efforts are in vain and despite imposition of high sentences, this trend has not created any desired results. Our legislators have clearly spoken, those offenders who abuse children should be severely punished and that the sexual penetration of children under 12 years or committed with breach of trust is very serious hence it attracts the maximum penalty of life imprisonment: Stanley Sabiu v The State (27.6.07) SC866. The above case was an appeal against sentence for a conviction against s.229A of the Code.

24. In the context of an offence of persistent sexual under s.229D (1) (6) of the Code it is also clear that Parliament has taken a similarly very strong view that those who persistently sexually penetrate children must be visited upon by the maximum penalty of life imprisonment.

25. People of this nation have clearly spoken through their Parliamentary leaders that PNG cannot tolerate this type brutal abuse of our most vulnerable young and defenseless members of our communities. And it is the responsibility of the courts to ensure that offenders who are invariably people who stand in the positions of trust must or should be appropriately punished. On the instant case, what would be an appropriate sentence for the prisoner?

26. Recapping on Subsection (6) of the section charged, the maximum penalty that may be imposed for persistent sexual abuse is life incarceration. It is also settled law that the maximum penalty is always reserved for the worst type cases: Maima v Sma [1972] PNGLR 49. In any criminal case, the actual sentences depend very much on the peculiar circumstances of each case.

27. On mitigations, I consider the prisoner pleaded guilty to the charge and made early admissions as evidenced from the record of interview. He also co-operated with police. He is a first time offender. He may have used force, because the victim could not report to her mother. He did not impregnate her nor did he infected her with any sexual transmitted diseases.

28. The court considers all serious aggravation of this case. Sexual abuse within the family circle is so popular and so prevalent right throughout the country. Any sexual crimes committed within the family unit are always serious. Not only against the law but against custom as it destroys unity and damages the reputation of the family relationship. Sexual offences committed between persons having close relationships are very serious: The State-v-Penias Moke (No.2) (2004) N2635

29. The crime you committed was not a one off incident. You abused the victim for over a number of years. I have considered counsels submission on sentence. I have also considered the offender’s statement in allocutus and the terms of the pre-sentence and means assessment reports.

30. Crimes of this nature are so prevalent. Sexual offences committed within a family environment cannot be treated lightly. The crime itself is very serious offending against the law of this nation, human logic, nature and it destroys our customs which have been kept from time immemorial. This is the very reason why the Parliament thought that such crimes must be met by high penalties.

31. Having considered all mitigating factors and weigh them against aggravating circumstances, the later outweighs the former. The court notes the call by the mother of the victim’s wish and that of her brothers (brothers of prisoner) and their call for a suspended sentence and compensation to be considered. Take note here that, what the two did is they breached custom and the law of this nation. This was not a one off incident.

32. The is why the section says that if one or more of the occasions involved penile penetration, it is serious and it ought to be met by imposition of deterrent penalty. The issue about compensation is that, when it is ordered under s.2 of the Criminal Law (Compensation) Act 1991, compensation is not in itself considered or specified to be a punishment. This section states:

“2. Compensation as punishment.

(1) Notwithstanding that payment of compensation is not specified as a punishment for an offence, a court may, in addition to any other punishments imposed, order an offender to pay compensation in accordance with this Act.

(2) When the court is considering the punishment of punishments to be imposed for an offence, it shall also consider whether in the circumstances of the case, compensation should be ordered.”

33. As can be seen from Subsection (1) of the above section, the court may in addition to any other punishment one of which is imprisonment, order compensation in appropriate cases. I agree with both counsels that this case is one where compensation should be ordered because the victim and offender are so closely related. In PNG custom, compensation plays a big role. Compensation plays its part as a means of what the court can refer to as “bel kol” (making the belly cool down) processes as it creates reconciliation between members in a community and in the family environment.

34. I have read comments by Elder Mr. John Solomon of Sikut/Matupit S.D.A. Church. The victim and the offender have been disciplined by the Church Board. Going back to the history of the Israelites, in the time of Moses, God prohibited unlawful marriages and incest between close blood relatives: Leviticus 18:6 – 18. As the Bible puts it, closely related persons are “near kinswomen” or “near kinsmen”. In their time, the maximum penalty available for either fornication or adultery was the death penalty: Deuteronomy 22:22 – 24.

35. Nelson, you must realize that, the breach you created between you and your family line has caused havoc in your family ties. The love that existed prior to the commission of the crime has now turned such love into hatred. Respect into disrespect, security into insecurity and such action violets customary practices and the law of this nation.

36. Having considered all mitigations and aggravations, the court is of the view that, the offender ought to serve a term of imprisonment. I also consider the fact that, the complainant may have been the willing partner on the commission of this crime. For the foregoing reasons, the court imposes the head sentence of 9years. Three (3) years of this sentence is suspended leaving the balance of 6 years. After serving the balance, he shall keep the peace and be of good behaviour for 2 years. This case is one of those appropriate cases where the court considers that compensation must be paid.

37. The Court orders the prisoner to pay compensation of K2, 000.00 in cash. On top that, he shall also pay 200 Tolai standard shell money. The Court now specifies the following persons to whom compensation shall be paid to and they then distributed the amounts ordered to the members of the family affected by the evil act committed by the two.

38. The cash money and the Tolai shell money shall be paid to Elder John Solomon of the S. D. A Church and the elder brother of the prisoner Mr. Raymond Tubavai. Distribution of the money shall be as follows:

1. K1, 000.00 cash plus 100 fathoms of shell money to the father & mother of the victim.
2. K700.00 plus 100 fathoms shell money be paid to the offender’s father and the offender’s three (3) brothers and his other sister.
3. The remaining K300.00 shall be paid to the complainant.
4. The court further orders that, these compensation orders shall be paid within three months.
5. This requires the brothers of the offender to pull their hands together and find the money and shell money to meet the requirements of this order.
   

39. The court orders that these payments shall be paid within three (3) months from today’s date. The Court nominates Church Elder Solomon John and Mr. Raymond Tubavai to arrange for these payments to be completed within three months.

40. The court also orders that Mr. David Simiriong at the Community Base Correction Office in Kokopo shall supervise the parties and make sure these orders are complied with within time. Mr. Simiriong shall report back to this Court by letter to confirm if compensation has been effected.

________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused