State v Inia [2020] PGNC 491; N9219 (23 November 2020)

N9219

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1229 OF 2019

THE STATE

-V-

ISAIAH INIA

Alotau: Toliken, J.
2020: 23^rd November

CRIMINAL LAW – Sentence – Guilty plea – Sexual penetration of a child – Circumstances of aggravation – Stepfather/stepdaughter relationship – Child under 12 years of age – Mitigating and aggravating factors considered – Aggravating factors outweigh mitigating factors – Near worst case – Appropriate sentences – 16 and 17 years – Concurrent – Effective sentence 17 years less time in custody – Suspension – 5 years suspended on condition – Criminal Code Ch. 262, s 229A (1)(2)(3).

Cases Cited

Aihi v The State (No.3) [1982] PNGLR 92
Golu v The State [1979] PNGLR 653
Stanley Sabiu v The State (2007) SC 866
The State v Toivat (2019) N7887
he State v Mankia (2019) N7822
The State v Paulo (2013) N5286
The State v Okole (2006) N3052

Counsel

R Luman, for the State
N Wallis, for the Prisoner

JUDGMENT ON SENTENCE

23^rd November, 2020

1. TOLIKEN, J: Isaiah Inia, you pleaded guilty to two counts of sexually penetrating your stepdaughter when she was 10 years and 11 years old respectively and in doing so, you committed an offence under Section 229A (1)(2)(3) of the Criminal Code.
   
2. The brief supporting facts are that the child victim Miriam Isaiah is your stepdaughter. On 18^th December 2018, at Wagala Village, Esa’ala, Milne Bay Province, you took your daughter to the bush to look for bush fowl eggs. While there, you had sexual intercourse with her. She was 10 years old at that time.
3. Then on the 13^th February 2019, you were taking the victim to her school through a bush road. You took her into the bushes, and you had sexual intercourse with her. She was 11 years old at the time.
4. Your offence carries a maximum penalty of life imprisonment, subject to the Courts discretions to impose a lessor or alternate penalty under Section 19 of the Code. This is because of the presence of the two statutory circumstances of aggravation viz., (1) the child was under the age of 12 years and (2) the existence of a relationship of trust, authority and dependency between you and the victim child. Had it not been for those circumstances of aggravation, you would be liable to 25 years imprisonment only.
5. While the prescribed maximum penalty is life imprisonment, you may only be given the maximum if your offence is the worst case. And whatever, your sentence will depend very much on the circumstances and facts of your own case. (Golu v The State [1979] PNGLR 653; Aihi v The State (No.3) [1982] PNGLR 92)
   
6. I must therefore determine an appropriate sentence for you.
7. Sexual offences against children are probably the most adherent of sexual offences because they target the most vulnerable members of society. Children deserve to be loved, nurtured guided by parents and guardians so that they grow into stable and morally upright members of society. Homes are supposed to provide security for children. Unfortunately, most of the abuse happen in the safety of the family home usually are committed mostly by persons who are known to the victims, persons who in most case stand in positions of trust in respect of these children. When abuse happens in the safety and sanctity of the home or other places where children are raised, educated, or offered spiritual guidance for instance, perpetrators must be severely punished for this grave dereliction of moral and legal duty and obligation.
8. Sexual abuse is a global issue; hence the United Nations Convention on the Rights of the child (CRoC) obligates member countries to legislate for the protection of children from sexual abuse, among others. Our Parliament had ratified the Convention and accordingly introduced new offences into the Criminal Code, one of which is offence you pleaded guilty to. (Criminal Code (Sexual Offence and Crimes Against Children Act 2002). This amendment to the Code provided very stiff penalties for sexual abuse that committed by persons who stand on position of trust - life imprisonment. This reflects Parliament’s intensions – that person who abuse children more so, those who stand in positions of trust and abuse that trust must be severely punished.
9. It is against that legislative backdrop that I will determine a sentence for you.
10. You were 28 years old when you committed this offence. You are now 33 years old. You come from Galubwa Village on Ferguson Island on the Esa’ala District of Milne Bay Province. You are married but have no biological children of your own. The victim, however, is your stepchild. You are the second of four siblings and the only male. Your father died when you were still a child while your mother is still alive but very old. You are a member of the Pentecostal Assembly of the Word (PAW) and were educated up to Grade 9. You have lived most of your life in the village after leaving school. You are a first-time offender. You have been in custody since your apprehension on 27^th June 2019.
11. In your address to the Court, reading from a prepared statement, you admitted your offence and said that what you did is a disgrace before God and man. You said you have broken the law and you feel guilty about your action as a believer of God’s Word.
12. You said you did not intend to commit this offence but did it out of frustration because your wife had aborted your child which deeply hurt you. If that were not enough, she also drank an herbal contraceptive preventing her from having children. You have been married for 11 years and your one desire is to have children because you are the only male in your family. However, you can no longer have your own children who can help you. On top of these, you also said that your wife was having an incestuous relationship with her own father. And whenever you tried to bring this up with your wife, she would take her father’s side. Her father in turn will chase you with bush knives, grass knives and spear to try and kill you. All of these contributed to the frustrations which built up in you and finally led you to committing this offence.
13. You apologized to God and the Court for abusing the victim whom you say you still regard as your daughter because she grew up under your care and you feel responsible for establishing a foundation for her future, as long as you are married to her mother.

14 You admitted your guilt and said your conscience is clear that your punishment will be a way of correction. You apologised to the victim and to your wife for being disloyal to her and for your family for brining shame upon them.

15. While you deserved to be punished, you said that you are a first-time offender. You, therefore, pleaded for mercy and asked that you be placed on probation so that (1) you can reconcile with the victim and her family, (2) support for your old mother as you’re her sole provider, (3) supporting your sister’s two little children whom you were supporting after their mother died a few years back and their own father had deserted them, and (4) support your Church as you are the only male among women members and the only one handling affairs of the church including making money for the church through gardening. Without you there will be nobody to support the Church.

16. In addition to your written statement, you also told the Court that you were not caught by your wife or other family members. Rather, after coming to your senses and realising that you were wrong, you voluntarily exposed the matter to the Church. You got your wife and the victim and went to your pastor and confessed. As a result, you were stripped off your office in the Church and placed under discipline.

17. In the end, you pleaded for mercy and asked to be given justice and placed on probation so that you can serve your time at home and support your family and Church.

18. Your lawyer – Mr. Apo submitted that this was essentially a case of persistent sexual abuse, but you were indicted for two of those occasions only where you took your victim into the bush and sexually penetrated her when she was 10 and 11 years old. Even though your case is quite serious, Counsel said that you did not use any weapons or cause her any physical injuries but conceded that she was subjected to verbal threats and was traumatized. And while your behaviour cannot be excused, yours is not necessarily a worst case.

19. Mr. Apo cited several mitigating and aggravating factors, most of which I agree with and will presently come to.

20. Your Pre-Sentence Report (PSR) is a balanced one. It captured your views as well as those of your wife. Your wife agreed to accept compensation and has no objection to your being placed on probation so that you can reconcile with them and support the family. She, however, wants the Court to make orders for the victim to be placed in the custody of her uncle and that you be restrained from having any contact with her.

21. Mr. Apo, therefore, submitted an appropriate sentence for you ought to be 13-15 years which are to be served concurrently. The period in custody should then be deducted.

22. Finally, Mr Apo submitted that you are not a threat to the society and that what you did was out of character and a one-off thing. You are truly sorry for your offence and the Court should therefore consider suspending a portion of your sentence.

23. Mr. Kupmain submitted for the State that you took your frustration on the victim who was of very tender age. While you said you voluntarily confessed your offence, Counsel said that the evidence in the depositions show otherwise. It shows that your wife caught you red-handed twice. Counsel referred the Court to Q & A 37 of your Record of Interview where it was put to you that you were about to have sex with the victim when your wife caught you. There, you answered that you did not sleep on her but was next to her when her mother came in. Counsel urged the Court not to believe you.

24. While your wife took your side in the PSR because she said you are the only bread winner, Mr Kupmain said that justice must be done only for the victim in this case.

25. Mr. Kupmain agreed that sentences ought to be in the range suggested by your lawyer i.e., 13 – 15 years. These should be served cumulatively because they happened months apart.

26. I accept the following factors as mitigating your offence:

(i) You pleaded guilty very early to your offence and in so doing you saved time and money for the State, and you also saved the victim the emotional trauma and shame of reliving her experience had you forced a trial.

(ii) You are a first-time offender.

(iii) You co-operated with the police by making early admissions on your Record of Interview.

(iv) You did not use any weapons or physical aggravated violence.

(v) You did not inflict any physical injury on the victim.

(vi) You acted alone.

(vii) The victim did not contract a Sexually Transmitted Infection.

(viii) The victim did not fall pregnant.

(ix) You expressed remorse and offered to pay compensation.

27. Against you, however, are the following aggravating factors:

(a) The victim was below the age of 12 years.

(b) You stood in a position of trust. Not only were you the

child’s stepfather, you were also a church leader.

(c) Your sexual abuse of the victim was not a one-off incident. Rather, it happened over a period of time.

(d) The offence is very prevalent.

(e) Huge age difference between you and the victim.

(f) The victim was way below the age of consent by 5 years.

28. What then should be an appropriate sentence for you?

29. Firstly, I do agree that while yours may not necessarily be a worst case, but I can quite confidently and safely say that it is a near worst instance of offending.

30. Your victim here was under 12 years of age. The Supreme Court held in Stanley Sabiu v The State (2007) SC 866 (Mogish, Manuhu, Hartshorn JJ) that a starting point for cases involving children under 12 years of age should be 15 years imprisonment.

31. In that case, the appellant appealed against his sentence of 17 years for sexually penetrating his 6year-old nephew. The Supreme Court dismissed the appeal and confirmed the sentence. Therefore, for your case, I set a starting point of 15 years for each count.

32. By way of comparison, Mr Apo cited several cases to me. I cite the most relevant below.

33. The State v Okole (2006) N3052 (Lenalia, J). The offender pleaded guilty to two counts of sexually penetrating his stepdaughter who was below the age of 12 years. It appeared that the abuse started when the child was 9 or 10 years old and continued until she was 11 years old when she became pregnant. The offender also pleaded guilty to a third count – abuse of trust. For the counts of sexual penetration, he was sentenced to 9 and 8 years which were ordered to be served consecutively. Count 3 for abuse of trust attracted 5 years which was ordered to run concurrently with the 17 years for sexual penetration. It must be noted that this case was decided a year before Stanley Sabui.

34. The State v Makai (2010) N3914 (Cannings, J). The offender was convicted after trial for persistently sexually penetrating his sister-in-law who was aged between 9 – 10 years over a period of 9 months. While considering that no weapons were used, the offender there remained unremorseful and did not take responsibility for his offence. He was sentenced to 20 years imprisonment.

35. The State v Paulo (2013) N5286 (Toliken, AJ). The offender pleaded guilty for persistently sexually penetrating his biological daughter. The abuse started when the child was 7 years old and continued until she turned 11 years old. I sentenced the offender to 20years.

36. The State v Toivat (2019) N7887 (Kangwia J). The 17-year-old offender there was convicted after trial for two counts of sexually penetrating his 8year-old victim’s vagina and mouth within a period of 24 hours. The offender was an uncle of the victim. He was sentenced to 12 and 15 years respectively which were ordered to run concurrently.

37. The State v Mankia (2019) N7822 (Susame AJ). The offender there pleaded guilty to persistently sexually penetrating his 12year old victim whom he regarded as a niece and was living with in the same home. He admitted to sexually penetrating her 4 times. He was sentenced to 18 years imprisonment.

38. Coming back to your case, there is no doubt that what you did to your stepdaughter was a serious breach of the trust reposed in you. In your Record of Interview, you admitted to sexually penetrating her a total of 5 times and you also made 2 attempts (Q & A 38). The two attempts are consistent with what the victim and her mother stated in their Statements. The last of these was when your wife came upon you in your house preparing to penetrate the victim again.

39. You said in your lengthy plea in mitigation that you are ashamed of what you did – and you should because you took out your frustrations about your wife’s abortion and subsequent inability to bear you a child, coupled with your wife’s alleged affair with her own father, on a completely innocent child.

40. You say that you want to be released on probation so that you would continue to support the victim (as well as your old mother and your sister’s children) because you still regard the victim as your child as long as you are married to her mother and because you raised her (victim) up as your very own.

41. Your wife, who apparently laid the complaint with the police have since had a change of heart and asked that you be placed on probation so that you can pay compensation and reconcile with her and the victim and their relatives.

42. Unfortunately for you, yours and your wife’s pleas cannot be readily granted. You have abused your stepdaughter in the worst possible way any father – biological, step or adoptive - could. You sexually penetrated your stepchild at a very young age – not once but 5 times as you admitted. And you made two other attempts. This could have continued had you not been caught by your wife, and I believe that you only confessed to your Pastor after that. Once you sexually penetrated your stepdaughter, your relationship with her completely and permanently changed. The filial love that existed between father and daughter is replaced by lust and you will, for all we know, continue to lust after her.

43. Your victim is still but a child and will continue to be at risk if we were to accede to your plea and that of your wife’s.

44. Your lawyer – said that you are not a danger to society. I beg to disagree. You are a paedophile and are a danger to society, to the victim and to every young girl in your village and community. You are the kind of man who should be removed for a sufficiently long period of time from your community so that our girls (and women generally) can walk around freely without fear of being sexually assaulted by men like you.

45. I note that you have some good mitigating factors. You are first time offender and because your case is not necessarily a worst one that should save you from receiving the maximum penalty.

46. Notwithstanding that, your mitigating factors pale into insignificance when considered against your aggravating factors, particularly, that your victim was well below the age of consent and furthermore under the age of 12 years. You also were in a position which you abused – a position of trust, authority, and dependency. The child looked upon you not only as her provider, but also as her protector and comforter. She expected to be loved but you lusted after her and defiled and degraded her. It did not matter to you that she was only 9 or 10 years old at the most when you first sexually penetrated her. All that mattered to you was to satisfy your lust. You did not say that your wife denied you your marital dues, so really, you were driven by lust. It did not matter also that you held a responsible position in office in your church, a factor which further aggravates your offending.

47. The circumstances of your case are quite similar to most of the cases cited above. Even though some were for persistent sexual abuse, the sentences are relevant for the purpose of sentencing you because your own offence is essentially the same, even though you were indicted for two separate counts instead.

48. All things considered, I, therefore, impose the following sentences:

Count 1 - 16 years

Count 2 - 17 years

49. That is a total notional sentence of 33 years. These counts were separated by about 2 months and therefore should ideally run consecutively. I, however, order that they shall run concurrently to avoid a crushing effect on you. You are, therefore, to serve 17 years, from which the period you have been in custody which is 1 year, 4 months and 27 days shall be deducted.

50. While you have a favourable Pre-Sentence Report, I do not think that a wholly suspended sentence is appropriate. You will serve a good part of your sentence to impress upon you and people with similar depraved mindsets, that you cannot abuse children under your care or any child for that matter and expect not be punished.

51. I will, therefore, suspend 5 years from your sentence. You will serve the remaining balance at Giligili. Upon your discharge, you will enter into a probation for a period of 5 years.

52. That is your sentence and I order accordingly. You have the right to appeal against your sentence within 40 days from today.
________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner