State v Variling [2019] PGNC 206; N7885 (17 June 2019)

N7885

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 672 of 2017

THE STATE

V

JOE VARILING
Defendant

Kokopo: Kangwia, J.
2019: 6 & 17 June

CRIMINAL LAW – sentence – prisoner pleaded guilty to incest – prisoner sexually penetrated biological daughter – mitigating and aggravating factors considered – aggravating factors far outweigh factors in mitigation- practice of incest common in that society – deterrence sentence considered as appropriate in the circumstances – prisoner sentenced to 10 years – pretrial custody period deducted – s229E (1) Criminal Code Act

Cases Cited:

State v Dala (2006) N4517
State v Tugumar (2013) N5377
State v Vincent Fong (2016) N6418
State v Esorom Asupa (2011) N4510
State v Mitige Neheya [1988-89] PNGLR 174; of Dadabu Dabu v The State (1997) Unnumbered & Unreported Judgment (SCR 26 of 1997);
The State v Michael & Toiyape Arons (CR 347 & 348 of 2016) (Unreported Judgment dated 18 May 2016);

Counsel:

G. Tugah, for the State
N. Katosingkalara, for the Prisoner

17^th June, 2019

1. KANGWIA J: Joe Variling appears as a prisoner for sentence after he was convicted on his guilty plea to one count of abusing a relationship of trust, authority and dependency pursuant to s 229E (1) of the Criminal Code Act.

2. The brief facts are that the Prisoner is the biological father of the Complainant. On 28 January 2017 in the early hours of 2 and 3 am the prisoner entered the room where the Complainant was sleeping and removed her clothes. 3. He sexually penetrated her. The Complainant woke up startled to see her father sleeping on top of her. She pushed him away and he left. The Complainant felt a lot of pain from the act.

4. On the next day she reported to her aunt. They reported to the police who charged the prisoner with the charge he is appearing from.

5. The prisoner is 44 years old and has three daughters of which the Complainant is the second born. His wife has remarried while he was in custody. He is currently unemployed. His parents are still alive and he subscribes to the AOG church.

6. He has no prior convictions.

7. On his allocutus the prisoner said; “Thank you for the chance to tell Court. I admitted the wrong with a remorseful heart. I apologize to the Court for the wrong. I am the sole provider for the kids’ welfare. Their future is in my hands. They need to be educated and I have to meet all the expenses for that. The last child was withdrawn due to financial problem. I seek leniency of the Court. Apologies and reconciliation under custom are pending”.

8. The offence with which the prisoner was charged under s 229 E provides as follows;

229E. Breach of trust, authority or dependency

(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 and 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 believe on reasonable ground that the child was 18 years or older.

9. The Court has been greatly assisted by both counsel with the filing of detailed written submissions on sentence.

10. On the prisoner’s behalf, Mr. Katosingkalara sought a wholly suspended sentence from a head sentence of 5 years. The following mitigating factors were highlighted as operating in favor of the prisoner.
He was a first-time offender who made early admission to police and this Court thus saving time and resources in a trial, no violence was applied, the victim did not suffer any serious injury, no sexually transmitted disease was passed to her, she did not encounter any pregnancy and it was a one-off incident. The prisoner also expressed remorse on his allocatus.

11. While conceding that there was a big age difference and a serious breach of trust had occurred the Court was referred to the following cases for consideration as comparable sentences for the present case. In the case of State v Dala (2006) N4517 the prisoner was given a wholly suspended sentence of 5 years with deductions for sexual touching of a step-daughter.

12. In the State v Anton Tugumar (2013) N5377 the prisoner who threatened his step daughter with a knife and sexually penetrated her was sentenced to 10 years with deductions for time in custody.

13. It was submitted that in the exercise of discretion a suspended sentence with deductions for pretrial custody was appropriate as the case did not fall into the worst category to attract the prescribed 15 years for the offence.

14. For the State Mr Tugah while conceding the defence submissions submitted that a sentence of 10 years without any suspension for the prisoner was warranted. He identified the following as aggravating factors; the victim is the biological daughter of the prisoner; there was a serious breach of trust, authority and dependency; there was sexual penetration in the early hours while the victim was asleep; the Complainant will now live with the ordeal for the rest of her life; there was a big age difference; the offence was very prevalent especially in this part of the country and there was a need for deterrence.

15. The State referred to the following cases as comparable case law in sentencing for the present case; in the State v Vincent Fong (2016) N6418 the prisoner was sentenced to 15 years for sexual penetration with his biological daughter aged 16 years who fell pregnant and conceived a child.

16. In the case of the State v Anton Tugumar (2013) N5377 the prisoner was sentenced to 10 years less the pretrial custody period for sexual penetration with his adopted daughter. The prisoner took the victim into the bush where he threatened her with a knife, undressed her and sexually penetrated her despite her cries for him to stop.

17. In the case of the State v Esorom Asupa (2011) N4510 the prisoner was sentenced to 13 years for sexual penetration after taking his sister in law into the bush and kept her in the bush for some time before returning.

18. It was submitted for the State that the offence was prevalent in our society and it called for a personal and general deterrence. The present case was no different and since there was a serious breach of trust, authority and dependency a custodial sentence was warranted. It was further submitted that compensation be awarded to the victim in line with The Criminal Law (Compensation) Act and the Tolai custom.

19. This is another one of those Incest cases that occurred in a biological father/daughter relationship. It involved a serious breach of the law and a taboo under custom and society. The experience would leave the victim scarred for life and it was also an insult to the immediate family members. The serious nature of the offence was that this case was a non-consensual sex case in a father/daughter relationship. The Complainant suffered humiliation and indignation in her family home where she could feel most safe and secure. The person who owed her the trust, authority and dependency terminally abused them. There was nothing beneficial from such breach apart from satisfying the prisoner’s lust and ego.

20. In Incest cases there is usually some form of consent present. The present case is in my view more a Rape case than simple Incest. Sentencing for Incest cases without consent should be treated as Rape. In the State v Mitige Neheya [1988-89] PNGLR 174 the Court held that:

“The Courts should deal with cases of incest, as with rape, clearly and decisively, so that there can be no doubt as to sentencing policy.”

21. I agree with that sentiment for purpose of sentencing in the present case. The difference in penalties between rape cases under s 347 and abuse of trust cases under s 229E is that aggravated rape carries a maximum prescribed penalty of life imprisonment.

22. The State has appropriately charged the accused for abuse of trust under s229 (E)(1) which carries a maximum prescribed penalty of 15 years.

23. Counsel have been helpful with their references to case law on the penalties for incest cases generally whether the charges were under s 223 or s 229 (E) (1) of the Criminal code. It is clear from the cases cited by counsel that sentences are varied given the facts and circumstance of each case.

24. For comparison purpose I further refer to the case of Dadabu Dabu v The State (1997) Unnumbered & Unreported Judgment (SCR 26 of 1997) where the Supreme Court confirmed a sentence of (7) years for a number of counts of Incest by a brother with his sister in a consensual sexual relationship.

26. In the present case I have considered that the prisoner pleaded Guilty early as a first-time offender and that it was a one-off incident. It saved the victim the shame and indignity to testify in Court. There were no circumstances of aggravation like unexpected pregnancy, or acquisition of a sexually transmitted disease. However, those factors fade into insignificance in view of the fact that a father raped his biological daughter in a serious breach of trust, authority and dependency situation.

27. It offends against the Law and custom and brings sour relations into the immediate and extended family relationships. The public will no doubt see the family as an immoral section of the community, not worth mentioning the niceties of life about them.

28. This is not a case where a distant relative or an acquaintance was involved. The offence was committed in a biological father daughter relationship. I am of the strong view that in sentencing for incest cases, the closer the relationship, the higher the penalty should be.

29. I re-state what I said in the case of The State v Michael & Toiyape Arons (CR 347 & 348 of 2016) (Unreported Judgment dated 18 May 2016);

“Incest in a blood brother/sister relationship is in my view the most serious of all Incest. Incest between father/daughter and mother/son relationships is also serious as they involve breaches of trust. Apart from a breach of trust, incest in such close relationships portrays lust of the evilest kind. It brings shame, ridicule and disdain into the family unit that cannot be removed even where customary settlement is reached.”

30. Even though that statement was made in a consensual brother/sister incest case, I maintain that position in the present case as the offence was committed within a close family relationship.

31. I agree with counsel for the State that the sentence to be imposed must reflect deterrence to protect the sanctity and fabric of the family unit as the offence was quite prevalent in this part of the country. I am of the strong view that deterrence cannot be satisfactorily achieved with a suspended sentence.

32. I am further of the view that compensation and reconciliation should not occur through a Court order. Incest cases emerge out of close family relationships and it should be left to the family relationship situation to consider and settle compensation and reconciliation issues.

33. The detailed pre-sentence report concludes that the prisoner is not a suitable candidate for probation supervision.

34. The highest sentence I can impose for the offence under s 229 E of the Criminal Code Act is (15) years.

35. Upon submissions of both counsel on the maximum prescribe penalty, it is considered reasonable under the circumstances of this case to conform to the principle of sentencing that the maximum prescribed penalty should be reserved for the worst type of each offence.

36. There may come a worst case of incest than the present case. This consideration leaves the Court to exercise its sentencing discretion under s 19 of the Criminal Code.

37. In the exercise of discretion, in view of the considerations referred to earlier the present case in my view falls into the category of incest that warrants a custodial sentence.

38. I further consider that the accused pleaded for leniency during allocatus. The basis of his plea was that he was the sole provider for his three daughters. Without him they will have no good future.

39. A statement from the victim that was admitted as evidence by consent shows that the victim was at this time living with her aunt and her aunt had assisted her with school fees. This does not augur well with the prisoner’s plea that he was the sole provider. She further stated that the prisoner should not come near her as it would rekindle the bad memories she had.

40. A more important aspect of the offence is that it was not committed by accident, mistake, under duress or compulsion. It was in my view a deliberate breach of the law by the prisoner directed at satisfying his lust only. The plea on school fee assistance for his kids are in my view a consequence of falling out of line with the law. It is a consequence he chose to face and live with by his actions. The Court should be loath to dwell on such pleas with a low sentence.

41. I consider that a custodial sentence of ten (10) years Imprisonment is appropriate for the prisoner and sentence him accordingly.

42. The period of time the prisoner spent in custody awaiting trial and sentence shall be deducted and he shall serve the balance at CS Kerevat. His bail shall be refunded.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner