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State v Babore [2017] PGNC 348; N7032 (11 December 2017)

N7032

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR No. 967 OF 2015


THE STATE


V


HENRY BABORE


Kimbe: Miviri AJ
2017 : 23rd Nov 8th Dec


CRIMINAL LAW – PRACTICE AND PROCEDURE – sexual penetration of child under 18 years old- 17 years old victim -school pupil-prisoner teacher 33 years old-class patron-repeated acts of sexual intercourse-early admission to police-early guilty plea-victim saved-prevalent offence-PSR MAR ordered-favourable to Prisoner-balance protection of child-custodial sentence part suspended.

Facts

Prisoner was the class teacher and patron of the 17 years old victim. He told her to go to his house to get her assignment book. He followed, met her there made sexual advances and had sex with her. He continued the act until discovered by relatives who reported the matter and charged the prisoner.

Held
Guilty plea early admissions to Police.
PSR MAR favourable to Prisoner
Protection of children
Serious abuse of trust authority and dependency.
33 year old school teacher sexual penetration of a 17 year old class pupil.


Cases:
Aihi v The State (No 3) [1982] PNGLR 92
Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000
James Mora Meaoa v. The State [1996] PNGLR 280.
State v Lare [2004] PGNC 218; N2557
State v Kutetoa [2005] PGNC 137; N2814
State v Tumu Luna (2002) N2205
State v Kilau [2006] PGNC 125; N3107
State v Dala [2006] PGNC 110; CR 311 of 2005
State v Okole [2006] PGNC 54; N3052
Yalibakut v State [2006] PGSC 27; SC890


Counsel:


  1. Bray, for the State

D Kolowei, for the Defendant

SENTENCE

11th December, 2017

  1. MIVIRI AJ: This is the sentence of a 33 year old class patron, a teacher who pleaded guilty to having sexual penetration of his 17 year old class pupil.

Short facts


  1. Henry Babore was a teacher at Boas Kulei Primary School at Galilo village where Nancy Nale was a student in 2014. He was her class patron. On the 8th December 2014 he sent her to his residence to pick up her assignment book. He informed her to wait there. He followed her there, where he made sexual advances to her resulting in sexual intercourse with her by insertion of his penis into her vagina. She was 17 years old at that time and also there was existing relationship of trust, authority and dependency. She was his pupil, he being her teacher and class patron.

Charge


  1. He was indicted under Section 229E of Criminal Code, ABUSE OF TRUST, AUTHORITY OR DEPENDENCY which read:

(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years.

(2) It is not a defence of a charge under this section that the child consented unless, at the time of the alleged offence, the accused believed on reasonable grounds that the child was aged 18 years or older.

He pleaded guilty upon arraignment and I confirmed that plea after perusal of the file that was tendered convicting him of the offence. She was born on the 1st September 1997 per her clinic book and therefore on the date of the offence 8th December 2014 17 years old therefore underage covered by the section charging.

4. The presentence report stated the prisoner as 25 years old whereas in the record of interview with police at question 9 he stated that he was 33 years old. I take that to be his age as it is in his own admissions to police more reliable than the presentence report. Therefore for purposes of sentencing he is 33 years old an age gap of 16 years she being 17 years aggravating the offence because children under age must be protected which is the general scheme of this provisions depicted with the rise in penalty provisions in the various sections under Division 2A. – Sexual offences against children of the code as the age lowers for the victim and increases for the prisoner offender. State v Lare [2004] PGNC 218; N2557; James Mora Meaoa v. The State [1996] PNGLR 280; State v Kutetoa [2005] PGNC 137; N2814
Allocutus

  1. In allocutus he said: “It is true what I did as is on the charge. We planned to do this together. We have a relationship. Thank you for hearing my case your honour. I am sorry for what I did. I say sorry to Nancy Nale and sorry to her relatives and my relatives also. I ask the court for probation and to serve time outside. I am a teacher and I help my family in their needs.”

Aggravation

  1. What he stated in the allocutus of a relationship between them became irrelevant and of no significance in the light of subsection (2) of that section where it specifically said consent was not a defence. His contention that she consented to the acts did not mitigate nor exonerate. Nor his contention that they had planned did not in any way alleviate the gravity of the offence. Simply put, he was a teacher, her class teacher, it was in his role to teach her for the better not to abuse her. What was established by the facts that he pleaded guilty to was that he had carefully planned the act. Because he had specifically told her to get her exercise book at his house and to wait for him there of course out of sight, out of deterrence from the other pupils in his class. She was at his discretion there which he used to his advantage sexually advancing against her and securing penetration of her vagina with his penis. It did not stop there he extended to other acts of sexual intercourse one in the bush where both were sighted by the witness Steven Meki who alerted the parents who questioned the victim and the matter coming to light up to here. What may have happened if not discovered by this witness was not beyond imagination.
  2. Schools were places of learning where parents trusted that their children would be entrusted without any second thoughts to teachers from early in the morning to when school finished. Children as young as 3 years old or 5 years old up to as in this case 17 years old. It did not come to the mind of parents that the very persons to whom they entrusted their children would abuse in this way. It was therefore not a light matter especially of a 33 year old teacher who had been teaching for 8 years and who was a senior teacher in that school he taught grades 7 and 8. And was educated to Bachelor of Education degree obtained from the Divine Word University in 2015. He was not a young teacher raw out of college but a seasoned teacher and no doubt was versed in his ethics and professionalism as such. He asked that he be given probation to continue as a teacher to help his family matters that he ought to have considered at the outset when he set out to commit this offence. Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
  3. Probation was not prescribed penalty under the section and therefore not automatic but to be considered on proper material before the court under section 19 of the Code. Here the probation report with the means assessment reports ordered were favourable to the prisoner recommending in his favour. He had no prior conviction known to the law. And was from a family of three siblings. He was not married and a good sportsman. His local community village court magistrate and peace officer knew him as a good citizen in the community. Generally the presentence report was favourable and recommended probation for him.
  4. In State v Kilau [2006] PGNC 125; N3107 before this court was a case of a teacher in Finchafen who had sexual intercourse of his 16 year old grade 8 pupil until she became pregnant. He pleaded guilty and was sentenced to seven years charged with section 229E as here. The court considered the high level of trust between a teacher and pupil as seriously aggravating the offence but not to the same level as under section 229A as the penalty simplicitor was 25 years old, but were trust authority and dependency was pleaded a maximum of life years. Canvassed with sections 229B and 229C Sections 229D and S229E were less serious in the sentences both setting 15 years maximum in each case.
  5. For my purpose here, I consider the case of State v. Kilau (supra) applicable here for purposes of the consideration of an appropriate sentence. This is yet another case of a teacher, a class patron who has violated a pupil in the class and the court would not be doing its duty if it simply placed the prisoner on probation on a non custodial term.

Mitigation


  1. Counsel defending urged that the case was not the most serious and therefore the maximum penalty was not warranted Aihi v The State (No 3) [1982] PNGLR 92 that a term of years was in order. He was 33 years old teacher teaching for 8 years. The third born in his family sustaining both his parents and siblings from his earnings. A first offender until this offence his admittance in the record of interview with police maintained before the court saved time and the victim from coming before court to testify. Expressing remorse and contrition are factors weighed in the matter of sentence in favour of accused persons, particularly if they are manifested in a plea of guilty.
  2. Whether remorse or contrition are shown by a plea of guilty depends upon the time and circumstances in which the plea is advanced. The earlier the expression of remorse or contrition after the commission of the offence the more favourable it will be for the accused. Remorse and contrition expressed at the trial weighs very lightly. It is easier to believe remorse expressed earlier than remorse expressed at the time of the trial, especially in serious cases like this one. State v Tumu Luna (2002) N2205. This is one such case where the prisoner has readily admitted to police when apprehended maintaining up into the court. He will be sentenced according to the facts as he has pleaded to: Yalibakut v State [2006] PGSC 27; SC890. He is not likened to State v Kilau (supra) where there is pregnancy that resulted and the child’ s prospects in life is completely ruined. But the general scheme of the facts and circumstances are the same particularly in the light of the language of the section protecting the child and the definition of relationship, trust, authority and dependency under section 6A (2) (d) covering the case here of a teacher and a pupil. The protection of that relationship in the sentence that is passed here will deter others with similar inclinations.
  3. I adjudge and determine that to imprison the prisoner outright without consideration of alternatives to imprisonment would not be proportionate to the facts and circumstances of the case both for and against. And I consider so in view of his guilty plea that has saved the girl from coming into court in a public court room and to give evidence of that fact reliving it before strangers. Against that is the fact that he is a teacher the class patron of that girl and he abused that trust not only for the girl but the other members of that class, the pupils, the parents and the community in the education system, fundamentally that teachers will not abuse trust by engaging in immoral sexual behaviour with the children who are entrusted to them for learning and integral human development. He is a mature 33 year old man and she is an immature teenager of 17 years old an age gap of 16 years. I contrast that with the general principles of sentencing in reformation of the prisoner here in favour of the prisoner who has taken the first step by pleading guilty. On the other side of the balance is retribution for what he has done against society. And in this regard custodial term appropriate to uphold the trust and confidence in the education system and teachers who must maintain a high level of professionalism and ethics between themselves and their pupils. In State v Kilau (supra) this court considered imposing 10 years but in the light of the guilty plea of the prisoner considered 7 years as appropriate because the victim was impregnated and her future prospects were ruined. In State v Dala [2006] PGNC 110; CR 311 of 2005 he was 44 years old step father a first offender the girl who had just turned 16 years old was immediately under his care, authority, dependency and trust. He took her into the room where he removed her clothes than penetrated her by inserting his penis into her vagina and had sexual intercourse with her. He pleaded guilty and the court imposed 5 years IHL but suspended sentence remaining after deduction of the custody period on conditions for compensation to be paid to the victim. That was in a family setting which is not the same as the facts here. The facts here are more serious but not as serious as State v Okole [2006] PGNC 54; N3052 where the prisoner was indicted with two counts under S229A and S229E where the court imposed 9 years IHL.
  4. I consider an appropriate sentence given all above is 7 years IHL and I so impose that upon him. I order that he serve 3 years IHL in jail. I order any time spent in remand to be deducted forthwith.
  5. Four (4) years IHL to be suspended on the following conditions:

Orders Accordingly


__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant

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