State v Don [2019] PGNC 23; N7689 (15 February 2019)

N7689

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1125 & 1126 OF 2017

THE STATE

V

DAMIEN DON

Kimbe: Miviri J
2018: 05^th December
2019: 13^th, 15^th February

CRIMINAL LAW – Practice and Procedure – s229A (1) (3) Sexual Penetration CCA – Plea – 49 year old Pastor –13 year old girl – serious breach of trust – trust authority & dependency– compensation paid – PSR & MAR– in favour – serious offence – prevalent offence – deterrent sentence.

Facts
The prisoner then 48 years old and a church pastor had sexual penetration of a 13 year old girl in his house.

Held
Plea
Large age gap
Serious breach of trust
Compensation paid
Strong deterrent sentence.

Cases:

The State v John Elipa Kalabus [1988] PGNC 120; N604
The State v Sabiu [2007] PGSC 24; SC866
The State v Tapin [2017] PGNC 23; N6626
The State v Kepas [2007] PGNC 77; N3192
The State v Jonathan [2008] PGNC 31; N3315
The State v Lare [2004] PGNC 218; N2557
The State v Kulami (No 2) [2009] PGNC 261 N4473
The State v Saperus Yalibakut [2006] PGSC 27; SC890
Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91

Counsel:

J. Apo, for the State
D. Kari, for the Defence

SENTENCE

15^th February, 2019

1. MIVIRI J: This is the Sentence upon Damien Don of Seranguandu, Wosera, East Sepik Province charged with Sexual Penetration of a minor pursuant to Section 229A (1) and (3) of the Criminal Code. He had pleaded guilty.
   

Background

2. Prisoner was a Pastor with the AOG Church at Buvussi. He was 49 years old at that time. The prosecutrix was 13 year’s old living with him and his family. He was alone in the house with her. He touched her breast then took her into him and his wife’s room. There he undressed her penetrated her vagina with his penis and had sexual intercourse with her. After the act she went and reported the matter to her aunty. Who took her to the hospital where she was medically examined. Then complaint was laid with police whereupon he was charged with Sexual Penetration of a minor under Section 229A of the Code.
   

Charges

3. That section reads;-

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

Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

Here the indictment invoked subsection (3) against the Prisoner. Therefore the maximum sentence liable to be imposed against him is life imprisonment as there was a relationship of trust authority and dependency. It will befall him in a worst case as in John Elipa Kalabus v The State [1988] PGNC 120; N604 (27 October 1988). A determinate sentence is in view upon him by his own facts and circumstances.

Aggravation

4. He pleaded guilty to aggravated sexual penetration of a minor under 16 years old. She was 13 and he was 49 years old an age gap of 36 years. Indeed a very large gap. And she was looked after and living there with him and his wife. There was trust that he would care for her. At the time of the offence she was alone with him in the house as the others had all gone to the garden. He touched her breasts then her vagina and took her into his room that he shared with his wife. There penetrated her vagina with his penis and had sexual intercourse with her. He seriously abused that trust in committing the offence. She is commended as she immediately reported the matter to her big mother or aunty who took her to the hospital where she was examined medically by Clinical Health Extension officer Noelyne Taraba of the Buvussi Health Centre that same day. She swore an affidavit that the prosecutrix had, “vulva-tenderness and inflammation. Vaginal orifice-tender and inflamed, no bleeding, Hymen was absent, not able to do speculum due to tenderness. Diagnosis was sexual abuse. And she was treated for sexually transmitted disease.” She had suffered injuries to her vagina. Whether or not the same could be said of her mental status was not clear. But it aggravated that a child was sexually abused in this manner by the prisoner a Pastor of the Church, the Assembly of God church at Buvussi. In that position he was a leader. A married man for 31 years with wife who also lived in the same house he had no excuse to commit the offence. He could have easily satisfied his sexual urges with his wife. He had 2 sons and 2 daughters from that marriage.
   
5. He was educated to grade 6 and it was his first offence. He had good references from within his church that he served it well. The prosecutrix stated she did not feel good and so reported the matter. But then felt sorry for the prisoner because he was a good man. She stated that her parents and relatives accepted K5000 paid by the prisoner. All agreed to forgive him for the wrong. She said she did not want the offender to go to jail as other students would intimidate her in school. Her parents said they had reconciled and asked that the prisoner not go to jail for the offence. As their daughter was not effected and was moving on in life contrary to what the daughter said. Payment of compensation was further confirmed by another pastor Steven Sospi, who remarked that the prisoner had fallen from grace, but had been forgiven by the relatives of the prosecutrix and reconciliation, had taken place. All in all he had references from reputable members of his community who voiced that what he did was out of character. And did not really serve that he be jailed for the offence.
   
6. The other side of all these was that he ought to have known that what he did breached his standing as a leader in the community. It was unbecoming of him to do what he did. It aggravated the offence on his part because he ought to have led by good example. He did not. And as a leader the application of the law was the same upon him. It did not change because he had paid K5000. The discretion was of court whether to take these or not and to give what was due it. It was not upon court to take and follow what the witnesses stated. The Justice of the case demanded consideration of all facts for and against and to properly arrive at a just and proportionate sentence due for the offence in law.
   
7. Mother of the prosecutrix confirmed that she was born on the 11^th November 2003 and she was 13 years old at the time of the offence. She was a child who did not appreciate and know the realities of life including the consequences of the actions of sexual intercourse that was committed upon her. Prisoner was intent on self-gratification and did not demonstrate responsibility in the way he acted. There was need for immediate protection of the child from adults such as the prisoner who preyed on their vulnerability and innocence. No doubt this was the reason for the amendment of this legislation by parliament. It was not a light matter and this court was bound to conform as confirmed by the Supreme Court in setting aside the appeal and confirming the 17 years sentence imposed at first instance in Sabiu v State [2007] PGSC 24; SC866 (27 June 2007). The child there was 6 years old therefore under 12 years old. Here she is 13 years old under 16 years old. And would be likened to State v Tapin [2017] PGNC 23; N6626 (1 February 2017) prosecutrix was 13 years old and the prisoner there was 38 years old. 12 years imprisonment was imposed.
   
8. This consistency continued in State v Kepas [2007] PGNC 77; N3192 (21 March 2007) the prisoner was 60 years old who pleaded guilty that he inserted his fingers five times into the vagina of victim 10 years old and on the last occasion had sexual intercourse with her. Circumstances of aggravation were pleaded he was sentenced to 12 years IHL. The offence was of his adopted daughter and committed over four months. Here the victim was 13 years old and it was both digital as well as penile penetration once of girl who was looked after and lived with the Prisoner. Where pregnancy emanated as a result of the prisoner using a knife at first to threaten and adduce persistent sexual penetration from a 16 year old in her parent’s house where prisoner was staying the court imposed 18 years imprisonment: State v Jonathan [2008] PGNC 31; N3315 (12 March 2008). There the age is not the same as here and a weapon was used to attain penetration leading to pregnancy, which isn’t the case here. That case would be more serious than the present. Here also the natural parents trusted that the prisoner would care and look after the prosecutrix. He did not abused that trust which is a very serious fact is drawing sentence as in State v Lare [2004] PGNC 218; N2557 (20 May 2004) the victim was 10 years old adopted by the prisoner as his daughter when the natural parents passed. He was in a very serious breach of trust when he committed the acts upon her. And it was three years running in which the offence was perpetrated upon her. Victim as a result contracted sexually transmitted disease from that encounter. He pleaded guilty and the court imposed 12 years imprisonment upon him. Age parity also has a very determining factor in the sentence that is passed. In State v Kulami (No 2) [2009] PGNC 261 N4473 (29 June 2009) a 50 year old man had sexual penetration of a 6 year old girl who was his niece after trial he was sentenced to 17 years IHL. In Saperus Yalibakut v The State [2006] PGSC 27; SC890 (27 April 2006) 17 years was reduced to 14 years. He was a 40 year old man she was 11 years old. He had pleaded guilty and the Supreme Court reduced the original sentence on a technicality.
   
9. This is a 13 year old girl with a 49 year old man a Pastor in Church a man of GOD who has abused that position and the trust in that position. He has not simply fallen from grace but has serious problems as a leader and a Pastor. The message in this sentence is all man are not above the law all will succumb to the law and a Pastor is no different from any other man in society. It is a very prevalent offence it would have continued its spiral and web had it not being for the prosecutrix who boldly stood up and complained to her aunty. In favour of the prisoner is that he has pleaded guilty saving her the embarrassment and trauma to come to court and to testify. It is a genuine plea made out of the goodness accepting wrong committed and to amend for the better. For that due consideration will be accorded in the sentence that is passed. It remains that like offences must be treated alike excerpts set out above. And prisoner will be so treated hence the sentence here.
   
10. Part suspension of the sentence is due because of the material in the presentence and means assessment reports, coupled with the guilty plea and the payment of K5000 compensation but the gravity of the offence remains for a custodial as part. Due consideration is given the principles set out in Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91 (2 April 1986) where it said, "suspension of sentence pursuant to section 19 (6) of the criminal code is, or maybe appropriate in three broad categories. The categories are not exhaustive (1) where suspension will promote the personal deterrence, reformation, or rehabilitation of the offender; (2) Where suspension will promote the repayment or restitution of the Stolen money or goods; (3) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or health."
    
11. Application will distil only partial suspension for the reasons set out above. The sentence must deter the prisoner and all with similar or like inclination. Children must be protected from themselves and adults like the prisoner.
    
12. In all the circumstances the sentence proportionate is 14 years IHL, and I so impose that upon you for the crime of Sexual Penetration of a minor under 16 years contrary to Section 229A (1) (3) of the Criminal Code. Time in custody will be deducted forthwith.
    
13. 2 years of that is suspended forthwith on a 2 years Good Behaviour Bond. There will be no conditions as the payment of K5000 adequately covers.
    
14. He will serve the 12 years IHL in jail
    
15. Bail is refunded forthwith.
    

Orders accordingly.

___________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for Defence