State v Barak [2018] PGNC 276; N7398 (20 July 2018)

N7398

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1258 OF 2016

THE STATE

V

CLETUS BARAK
Prisoner

Angoram: Geita J
2017: 22, 24 November
Wewak: Geita J
2018: 17, 20 July

CRIMINAL LAW – Guilty Plea – Sentence -Particular offence – Persistent sexual abuse of a female child under 16 years between unknown dates from January 2015 to June 2016 – Touched the sexual parts of the said child –Adopted daughter - S. 229D of the Criminal Code Act.

CRIMINAL LAW – Guilty Plea – Sentence –Four occasions of conduct of persistent sexual abuse from age 7 years onwards –wholly suspended sentence considered inappropriate – Customary form of compensation not considered appropriate as part of sentence - Sentenced to 19 years imprisonment with hard labour. - S. 229D of the Criminal Code Act.

Cases cited

State v Michael Ramram CR 970 of 2016, 19 May 2017 (unpublished)
State v Tigi (No. 2) [2013] PGNC 116,N5310;
State v Gibson Tramba CR 292 of 2014
State v Kikia Solowet (2007) N5039
State v Paulo [2013] PGNC 112, N5286
State v Tutuvo [2011] PGNC 117

Counsel:

Messrs P Tusais & A Bray, for the State
Mr. J Javapro, for the Prisoner

JUDGMENT ON SENTENCE

20^th July, 2018

1. GEITA J: The prisoner pleaded guilty to a series of charges of persistent sexual abuse of his adopted daughter(named) who was then 15 years old which carries a maximum life imprisonment, contrary to section 229D (6) Criminal Code Act. The crimes were committed at Kanganamun village, Angoram District in East Sepik Province. At the time there existed a relationship of trust, authority and dependency between him and his adopted daughter. Section 19 however gives Courts power to also consider lesser sentences.

2. The evidence for the purpose of sentencing contained in the committal depositions as agreed to by the Prosecution and Defence for the plea of guilty are conveniently summarised hereunder:

1. On several dates not specified between 2015 and 2016 the prisoner sexually penetrated the victim by inserting his penis into her vagina and having sexual intercourse with her.
2. The prisoner also touched the sexual parts of his step daughter on more than four occasions during that period. At the time the victim was aged 15 years old.
3. In 2009 when the victim’s mother married the prisoner she came with the victim, than aged 7 into the marital home and was raised like a daughter of his own together with his three other children.
   

Antecedent Report

3. No prior conviction were recorded against his name

Allocutus

4. When provided with an opportunity to address the court in relation to what sentence should be imposed, the prisoner said he was sorry to the victim and to the court. He asked to be considered for probation to sort out the matter outside of court. He has four children and is concerned for them.

Pre Sentence Report

5. A pre-sentence report was ordered by court at the request of the prisoner through his lawyer. I must thank Moses Galus, Probation Officer for a well-balanced report from all sides. The prisoner is 45 years and is married with three children. He comes from a family of two brothers and two sisters. He was educated up to grade 6 at Angoram Primary School and Vocational School with carpentry trade experience. He is currently unemployed. The prisoner is willing to pay compensation of K1,000 and a live pig to the uncles of the victim according to customary practices in this area.

6. The complainant has since married and wants to get on with her life and has forgiven the prisoner. She however does not want the prisoner to return to their home or get close to her family for fear of her new relationship spoilt. The complainant’s views were also supported by her mother who said she has also forgiven her husband and does not wish him to be sent to gaol but to place him on probation.

7. The community views were not sourced as they were not available at the time the report was compiled. In any event the views of the complainant and mother sufficient for court’s purposes.

8. The Probation is of the view that the prisoner is not a danger to the community and is a suitable candidate for probation supervision.

Means Assessment Report

9. As I gather from the prisoner’s means assessment report he has the ability to pay compensation and also willing to meet all necessary customary obligations to appease the situation. The prisoner has since been forgiven by the complainant and his wife.

Mitigating factors

10. The only mitigating factors in this case are the absence of any prior convictions and the fact that you pleaded guilty.

Aggravating factors

11. In this case, the aggravating factors include:

(1) Abuse of trust, authority and dependency.
(2) Prevalence.
(3) Not a one off instance of sexual abuse.
(4) Age disparity

Submissions

12. On behalf of the prisoner, Mr Javapro indicated that the prisoner has been in custody since 7 June 2016, a period of 2 years and 1 month. Mr Javapro suggested the sentence imposed should be for a term of 15 years and not life imprisonment with conditions on probation as the victim and her mother have forgiven the prisoner. Of the three cases cited to this court: State v Tigi (No. 2) [2013] PGNC 116,N5310; State v Paulo [2013] PGNC 112, N5286 and State v Tutuvo[2011]PGNC 117, all under the same law, sentences were a low 13 years to a high 20 years depending on the mitigating and aggravating circumstances found at the time.

13. On behalf of the State, Mr Bray referred to the violence and prevalence and submitted that there was a need for a deterrence sentence under the circumstances. Mr Bray took issue with defence argument that this was an isolated incident as submitted in mitigation. He said there were several instances of sexual abuse over a period of time making this case more serious. The aggravating factors do not favour the prisoner, he said. The State submitted that probation for the prisoner was objected too and asked for a custodial sentence between 15 and 18 years instead.

Circumstances of the offence

14. This was an invasion on the privacy of a young girl whom you raised up from age 7 years when you married her mother. She was forced into committing this crime against her will as she feared for her life. Your judgment and normal human decency was grossly impaired when you surrounded your life with marijuana and pornographic material, resulting in this crime.
15. The prisoner was indicted for 4 complaints of persistent sexual abuse of a child between 2015 and 2016 to which he pleaded guilty. It follows that he is entitled to the usual allowance accorded on all evidentiary material in the depositions handed up.

16. It is clear that some allowance should be made for the fact that he has decided to plead guilty this time around and has no prior convictions. For cases of persistent sexual abuse of children under age of 16 years, the suggested range of imprisonment is between 20 and 30 years. (See State v Kikia Solowet (2007) N5039). I note that the middle of that range is 25 years. Of course, those cases only provide guidance and it is necessary to consider such things as the circumstances of the offence, the circumstances of the prisoner as well as the mitigating and aggravating factors in each case.

Court Remarks on Sentence

17. My job now is having heard your allocutus, having heard submissions from your Lawyer on your behalf and the State Lawyer to consider what an appropriate sentence should be in your case. I first start with your case. In your case you are 45 years old and your adopted daughter at that time of the crime was 7 years, so there’s a big age difference of 37 years. In this case you pleaded guilty.

If I may digest the case that your lawyer referred me to in the case of State v Tigi (no. 2) [2013] N5310 that was a guilty plea, same charge under section 229D (1) (6) Code. Sexual abuse over time, age disparity between the victim and the prisoner, some form of reconciliation. A sentence of 13 years imposed. As is argued all the time, every case is treated differently, not one case is the same and so the Judge has treated that case the way he saw it.

The State v Paulo [2013] N5286 – Persistent sexual abuse by 49 year old man, victim natural daughter aged 7 years – Abuse over a period of four years, breach of trust.First time offender. Sentenced to 20 years.

In your case you admitted to 4 instances of engaging in acts of sexual penetration of your adopted daughter.

Law

18. What is the Law on Persistent sexual abuse of a child?

Section 229D (1) and (6) reads:-

(1) A person who, on two or more occasions, engages in conduct in relation' to aparticular child that constitutes an offence against this Division, is guilty of a crime of persistent sexual abuse of a child.

Penalty: Subject to Subsection (6). Imprisonment for a term not exceeding 15 years 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) ...

(6) If one of more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is,liable, subject to Section 19, to life imprisonment. (Emphasis mine)

19. This case reveals the kind of sentence that can be imposed when people engage in sexual penetration of their own daughters or adopted daughters. I note that your wife and daughter have since forgiven you, simply because they want the stigma and shame caused by you on your daughter forgotten. That is all very well. You also have the ability to pay compensation. That is all very well but what you have done is not good and the courts have a duty to protect such innocent children. Like your adopted daughter, now married.

20. I note that the Probation Officer has rated you highly as not being a danger to society and recommended your release on probation services. With respect I must disagree with those views. First up is that you committed this crime over a long period of time, since the victim was aged 7 and came to your life by virtue of her mother’s marriage to you. A period of almost 9 years. Secondly the sexual crimes you committed on her and were forced into doing, were grouse and heinous crimes, perhaps only suitable for mature adults. Thirdly you intoxicated your mind with filth in pornographic material and illicit substance which clouded your judgment on issue of morality and common decency. To my mind those negative attributes do not call for leniency. On that note I restate here what I stated in my previous judgment during this circuit that no-one in Angoram should be left in any doubt that the National Court does not regard such conduct lightly or treat such offenders leniently.

21. In the most recent case I delivered in Angoram in 2017, during that circuit (State v Gibson Tramba CR 292 of 2014, delivered 23 November 2017 (Unpublished) a middle aged father/prisoner was sentenced to 10 years for sexually penetrating his daughter. The case was laid under Section 229E (1) Criminal Code, persistent sexual abuse. Guilty plea etc. The difference in that case and your case is that you have been charged under section 229D of the Criminal Code, sexual penetration of a child on 4 different occasions. Punishment is life imprisonment if the victim is under 12 years.

22. In another case I decided in Vanimo (State v Michael Ramram CR 970 of 2016, Delivered 19 May 2017 (Unpublished) I sentenced a 60 year old man to 30 years for persistent sexual abuse of his 15 year old granddaughter. This was a trial matter.

23. It would seem that from the two persistent cases I discussed above, courts have considered sentences from a low 13 years and a high 30 years for various reasons, explain in those decisions (The State v Tigi (supra) and St v Michael Ramram (supra). The distinguishing common feature in those two cases is advanced aged which court treated as mitigation factors. In your case you are aged 45 years and a relatively young healthy man. In short, your remaining mitigation factors outweighed by your aggravating factors. This will be reflected in your overall sentence. A mid-range sentence in my view is considered appropriate based on the two cases discussed above, which is 19 years.

24. Cletus Barak, taking into consideration what has been said by you and by your lawyer; I sentence you to imprisonment with hard labour for 19 years. I do not think that a wholly suspended sentence is appropriate under the circumstances. From that term will be deducted a period of 2 year and some months and days to be taken into account for the time you have already spent in prison. Had it not been your guilty plea and this courts endeavour to ensure that the dignity of the victim is restored and the stigma surrounding her life, removed, a partially suspended sentence with compensatory conditions considered for you. A much longer period of sentence would have been considered had this matter gone to full trial. I am satisfied that your mitigating factors were outweighed by your aggravating factors. In any event you should consider yourself fortunate that you elected to plead guilty.

25. I make no further orders as to probation and part suspension of some sentence as I consider it not appropriate under the circumstances. Furthermore, I do not think it appropriate to use customary form of compensation as part of sentence.

Sentenced accordingly.
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner