State v Riria [2020] PGNC 364; N8663 (12 November 2020)

N8663

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 965 OF 2018

THE STATE

V

NATIONAL MATHEW RIRIA

Kimbe: Batari J
2020: 17^th September
: 12^th November

CRIMINAL LAW - sentence – sexual penetration – committed by use of finger – 13 year old victim taken out in the night by father and sexually violated – relationship of trust and dependency with victim - existence of – plea – circumstances of aggravation – mitigating factors – xx years imprisonment suspended on conditions appropriate - Criminal Code section 229A (1)(2); Criminal Law (Compensation) Act 1991 sections 2, 3 considered.

Cases Cited

Public Prosecutor v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320

Counsel

R. Luman, for the State
D. Kari, for the Offender

SENTENCE

12^th November, 2020

1. BATARI, J: National Mathew Riria, on 17 September 2020 you pleaded guilty to an Indictment charging one count of sexual penetration of a child under 16 years contrary to s. 229A (1) (a) and (3) of the Criminal Code. The prescribed maximum penalty is life imprisonment. This is your sentence.
   
2. The brief facts to which you pleaded guilty are these. On the evening of 10/3/2018 at section 7, Buvussi oil palm settlement, Kimbe, WNB Province, you went to a nearby store to buy rice, accompanied by your two daughters. On returning to the family home, you told the younger daughter to walk ahead of you and your 13-year-old daughter. It was then dark. Along the way, you sexually violated your daughter by pushing your finger into her vagina. At all relevant times the victim, Joan Mathew was in a relationship of trust and dependency with you as your daughter. The matter was then reported to the police.
   
3. The offence of sexual penetration charged under s. 229A of the Criminal Code Act carries the maximum sentence of 25 years imprisonment. Where circumstances of aggravation are alleged, the prescribed maximum penalty is life imprisonment. Section 229A reads:
   

“229A. Sexual penetration of a child.

(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 Subsections (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.”

4. There was a breach of existing relationship of trust, authority and dependency when you committed the offence. The victim was your own daughter. She resided in your own house and you were solely responsible for her upbringing, her education, her health and general well-being. The statutory circumstances of aggravation in s. 229A are charged on the Indictment. Consequently, you are expected to meet with severe penalty for aggravated sexual penetration of a girl under the age of 16 years.
   
5. The maximum penalty variables of 15 years, 25 years for ordinary cases and life imprisonment for aggravated sexual penetration offences are intended to punish the varying circumstances, form and degree of seriousness of sexual offences against children, as appropriate. Parliament has purposely redefined and increased the seriousness of offences and crimes against children in response to the widespread increase in sexual violation and persistent abuse of children, sometimes committed in the most unforgiving circumstances.
   
6. The prescribed sentence of life imprisonment sends out a clear message, that those who violate young children must be visited with severe penalty. It is also intended that a stiff penalty will protect young children deter adults and other sex predators preying upon vulnerable children for their own sexual gratification. Furthermore, both general and personal punitive aspects of the sentencing principle must feature heavily in dealing with child sex- offenders.
   
7. The result hopefully will be that the offender will no longer be a threat to young children and the community. The other outcome of such sentencing policy is that the offender will have learnt and would-be offenders warned against the serious consequences of being caught and punished for offences against children.
   
8. In this case, the victim was 13 years old. If consensus is implied, it quickly diminishes in the relationship of trust, authority and dependency that existed.
   
9. You are 45 years old and married with six children, the victim being one of them. It is expected of you to know better and be wiser in the presence of your children, to respect and safeguard their rights, freedoms and wellbeing against sexual violation and abuse, even how tempting a situation might have presented itself.
   
10. Luckily for you your conduct was instantaneous other than planned. Another factor in your favour is the way you violated your child. It was not penal penetration which is more serious because of the greater risk of harm and sexually transmitted diseases. Furthermore, your action was not repeated.
    
11. Be that as it may, men should not think they can turn to young children for their sexual impulses any time, without the slightest regard for the serious harm to the child. There can be no doubt, victims of child sex and abuse are traumatized and sometimes left scarred physically and mentally for life. Any physical injury sustained is a matter that adds to the gravity of the offence.
    
12. In this case, the victim did not suffer any physical harm. Furthermore, there has been reconciliation and payment of compensation involving both your family line and that of the victims and relations has been restored.
    
13. On the face of it, the circumstances of this case favour a strong deterrent sentence. However, it is not legally correct that the offender should be punished only in the interest of the victim and the community. The proper approach is to consider whether the outcome of the sentence to be imposed will meet all or any of the retributive, reformation and restorative aspects of sentencing. This is where the offender’s personal background and circumstances are relevant matters for consideration. The sentence that the court imposes must be appropriate in all the circumstances of the case.
    
14. In that regard, I have ordered a Pre-Sentence Report (PSR) from Probation Officer, Mrs Robe. I commend the Probation Officer for the comprehensive PSR. It will be read into the records. The important points from the PSR are: that you are a person of prior good character, happily married with a fairly large young family; your own elderly parents are dependent on you to harvest the oil palm to sustain all; your wife has been diagnosed with breast cancer leaving the family chores to you; community leaders including your church clergy expressed surprise at your action but will support you if you are given suspended sentence with community work orders. The pre- sentence report concluded from those favourable reviews; you are a suitable candidate for probation.
    
15. I take into account, your plea of guilty, supported by a prior good conduct, expression of remorse and cooperation with police. Payment of compensation has followed your arrest. That act together with your further offer to pay compensation is evidence of genuine remorse and acceptance of your unlawful act. It is proof of your taking full responsibility for your wrongdoing and disrespect towards your own family and that of your wife’s line.
    
16. Compensation payment is an option open to the court under the Criminal Law (compensation) Act 1991. It is mandatory under s. 2 of the Act, for the Court when considering punishment to be imposed for an offence, to also consider whether in the circumstances of the case, compensation should be ordered. Section 3 sets out factors to be considered in making compensation orders if the order for compensation will advance the interest of justice as:
    
    1. Nature and seriousness of the offence;
    2. Degree and nature of any personal injury suffered by the victim;
    100. Any other factors from the offence or the offenders attitude which may be considered in mitigation or aggravation of punishment;
    4. Any relevant customs regarding compensation;
    5. Report on “means;”
    6. Other relevant matters.

17. I have had regard to these matters. One issue which I raised with both counsels is customary compensation payment of tuhali shell money according to the customary rites and practices in the Nakanai Society in West New Britain Province. The victim’s mother is from Matililiu village, Bialla, East Nakanai. The punitive effect of shell money payment as compensation is well recognised both in the Nakanai and Tolai societies.
    
18. In this case, the initial payment of compensation included tabu shell money. To me, that is a grave insult against the victim, her mother, her maternal uncles and other relatives on her mother’s side who were humiliated and infuriated by the offender’s conduct. Proper payment of compensation in customary form should accord with the customary rites and practices of the Nakanai people. I propose to correct the uncertainties leading to this anomaly.
    
19. From the foregoing, a term of imprisonment with orders for compensation are warranted on the facts. I have considered whether the term I am about to impose should be wholly or partially suspended. I am satisfied, imprisonment is not always the answer if the alternative to imprisonment is a viable proposition.
    
20. In, Public Prosecutor v Tardrew [1986] PNGLR 91 the Supreme Court sets out three broad, but not exhaustive, considerations in which it may be appropriate to suspend a sentence namely, whether: (i) it will promote the general deterrence or rehabilitation of the offender; (ii) it will promote the repayment or restitution of stolen money or goods; (iii) imprisonment would cause an excessive degree of suffering to the particular offender, for example due to bad physical or mental health.
    
21. I am satisfied, that suspension of the sentence would promote the rehabilitation of the offender and the payment of customary compensation. There is a further consideration on the effect of imprisonment where the prisoner is the sole breadwinner in an oil palm block and the family welfare will likely be affected because of ill health of the offender’s wife. Suspension of sentence in cases like this one, is not an act of leniency, but an order made in the community interest: The State v Frank Kagai [1987] PNGLR 320.
    
22. The offender is sentenced as follows:
    
    1. 6 years imprisonments with hard labour.
       
    2. 5 months custody time is deducted. The offender is to serve the balance of 5 years 7 months in hard labour.
       
    3. The whole term is suspended, and the offender is to be released and placed on the usual probation orders for 5 years and in addition, shall –
       
       1. Within 48 hours of today’s date, report to the Probation Officer;
       2. Reside at a place approved by the National Court;
       3. Not to leave his place of abode, Kimbe or West New Britain Province without leave of the National court;
       4. Within three months or by 12/3/2021 pay compensation as follows:
          1. 100 param Tabu, one medium to large Nakanai shell money - la tuhali, K4,000.00 in cash.
          2. The initial payment of 100 param Tabu with K2,000.00 cash is converted as partial compliance with these orders;
          100. Payment of the Tuhali and the balance of K2,000.00 shall be paid to the victim and the maternal uncles of the victim in the presence of the village court magistrates and officials at the village court sitting area for Matililiu village;
       5. Attend church every weekend for service and worship and submit to counselling;
       6. Perform 400 hours of community work at a place to be nominated and approved by the National Court;
       7. Keep the peace and be of good behaviour for xx years;
       8. Have satisfactory probation report filed at Kimbe National Court Registry;
       9. Appear before the Court as and when required for assessment of progress on probation.
          
    4. The Probation Officer shall file six monthly reports and whenever required by the National Court on progress of probation until discharged.
       
    5. The first report shall be due by the call-over date in the month of February 2021 and on which date the offender/probationer shall appear for a review of the orders for compensation payment.
       
    6. In any event of any breach of these conditions, the probationer shall be brought before the National Court to show cause why he should be imprisoned for the remaining term of imprisonment.
       

Sentenced accordingly.

___________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender