State v Tulungen (No 2) [2020] PGNC 516; N9941 (18 November 2020)

N9941

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 244 OF 2018

THE STATE

V

BERNAT TULUNGEN
(NO 2)

Kokopo: Suelip AJ
2020: 12^th August, 9^th & 28^th September & 18^th November

CRIMINAL LAW – sentence – trial – guilty – persistent sexual abuse of a child s.229D(1)(6) Criminal Code – victim’s education affected – victim’s father demands compensation – sentence of 10 years – custody term deducted – half of sentence suspended with conditions.

Cases Cited

Golu Golu v the State [1979] PNGLR 653
State v Penias Mokei (No.2) (2004) N2635
State v Ndrakum Pu-Uh (2005) N2949
State v George Gior Kankan (2017) N6630
Stanley Sabiu v. State (2007) SC866

Counsels

L Rangan, for the State
JM Ainui, for the Prisoner

SENTENCE

-18^th November, 2020

1. SUELIP AJ: On 12 August 2020, the prisoner was found guilty after trial on one count of persistent sexual penetration pursuant to section 229D(1)(6) of the Criminal Code. He committed the offence between 1 June 2017 and 21 November 2017 at Ratongor Village, Reimber/Livuan LLG, Gazelle District, and at Warapukpuk, Inland Baining LLG, Gazelle District, East New Britain Province, respectively.

Facts

2. The facts are that one evening at about 5pm on an unknown date in June 2017, the victim, a 14-year-old, schoolgirl, doing grade 6 at Ratongor Primary School, was walking towards the beach to have her shower. Whilst sitting under his house, the prisoner called her and she came to him. He then pulled her by her hand into the inside part of the kitchen, forcefully undressed her and introduced his penis into her vagina. She felt pain and bled, as this was the first time in her life to have sexual intercourse with a man. He showed her a small knife about 40 – 50cm long and said he would kill her with it if she told anyone about what had happened, and then he let her go. At that time, the victim was 14 years old and a student. She did not tell anyone about what had happened because he had threatened to kill her.

3. The second act of persistent sexual abuse occurred on 20 November 2017 when the victim was sent by her mother to go and weed their garden. Whilst the victim was busy weeding at their garden, the prisoner approached her, pulled her by her hand down to a nearby ditch, pushed her down onto the ground and forcefully sexually penetrated her by inserting his penis into her vagina. Whilst he was sexually penetrating her, her mother came calling for her and saw what the prisoner was doing to her daughter.

4. The prisoner has been convicted of the charge and the Court also found that there existed a relationship of trust, authority and dependency between him and the complainant.

The offence

5. Section 229D(1)(6) of the Criminal Code provides:

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

...

(6) If one or 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.

Personal particulars

6. A pre-sentence report prepared by Probation Officer, Noel Awagalas shows the prisoner is 23 years old and come from Ratongor Village in the Reimber/Livuan LLG in the Gazelle District. The report shows that he is of Catholic faith, is single and prior to his arrest, he was living with his mother at Ratongor village. It also shows that he is the eldest in a family of five and his parents are still alive but separated in 2012. It states that father has remarried, and and his mother is looking after him and his younger sibling and because he is the eldest, he had taken over the responsibility of assisting his mother in taking care of the family.

7. The report shows that the prisoner did grades 1 and 2 at Vunakalkalulu Primary School in 2006 and 2007 respectively before he attended Ratongor Primary School where he did grades 3 to 8. The report also states that he was then selected to attend George Brown Secondary School and he completed grades 9 to 12. The report further stated that he did not continue his education because of poor results and so he enrolled at Kokopo Open Campus between 2016 and 2017, where he was upgrading his marks. It states that he did not complete his studies and he was arrested in the middle of 2017 for this offence.

9. In the Antecedent report, it shows the prisoner does not have any prior convictions.

Allocutus

10. When given the opportunity to speak in Court on what he views as the appropriate sentence for him, he said he will follow whatever the Court’s decision is. He also begged for the Court’s mercy and asked to be placed on probation. He said he will pay compensation.

Mitigating and Aggravating factors

11. The following mitigating factors are in his favour:

(i) he is a first-time offender
(ii) he is a youthful offender at 20 years
(iii) he expressed remorse

(iv) he is willing to pay compensation. His family initially paid a bel kol money in the amount of K800.00

12. Against him, the following are the aggravating factors:

(i) he is closely related to the victim’s family
(ii) there is an age disparity of 5 years

(iii) there is abuse of trust, authority or dependency
(iv) there is forced penial penetration of the vagina (rape)

(v) trial occasioned unnecessary costs on all

(vi) trial occasioned complainant to talk embarrassingly to public about her privacy

(vii) victim’s learning/education disturbed

(viii) his conduct created a bad relationship within his own matrilineal family as he is the complainant’s stepmother’s first cousin.

13. Counsel for the prisoner asked that the Court be guided by the following consideration in State v Penias Mokei (No.2) (2004) N2635 which was subsequently followed in the State v Ndrakum Pu-Uh (2005) N2949, where the Court discussed a number of factors that may be taken into account when sentencing an offender, for sexual offences against children. These considerations include (but are not limited to);

(i) is the offender a first-time offender?

(ii) did the offender plead guilty?

(iii) the age of the victim and the difference between the offender and the victim’s age?

(iv) was there a relationship of trust, authority or dependency between the offender and the victim, and if there was, how close the relationship?

(v) was there any consent (although this itself may be immaterial but lack, of consent may be taken as an aggravating factor, where the victim is under the age of 16?
(vi) did the offender use threats of violence or actual violence?

(vii) did the offender cause any physical injury (including transmission of venereal disease(s))?

(viii) was this of one-off incident or was the offender’s action part of a pattern of persistent sexual abuse?

(ix) did the offender express any remorse?

(x) has the offender caused any further trouble with the victim or her family?

14. Counsel referred to State v George Gior Kankan (2017) N6630 by late Lenalia J where the 74-year-old prisoner was living with the complainant and her family as he was a close relative. The complainant referred to the prisoner as grandfather. Whilst he was living with them, he continuously sexually abused the complainant between June and October 2012. She became pregnant as a result of these sexual abuses. The prisoner pleaded guilty to the charge and his good character prior to committing the offence. He paid compensation of K1,200.00 and 200 fathoms of shell money. He was sentenced to ten (10) years and 2 years was suspended. The Court further ordered the prisoner to pay K1,000.00 to the complainant.

15. His counsel argued that a sentence of 10 years should be applied in this case and that the mitigating factors should be taken into account to impose the appropriate sentence on the prisoner. It is further argued that an order for compensation and restitution should be ordered against him and his sentence should be partly suspended.

16. On the other hand, the State argued that after the Court found the prisoner guilty of the charge, he is liable to life imprisonment subject to section 19 of the Criminal Code.

17. The State relies on Stanley Sabiu v. State (2007) SC866 where the Supreme Court held the following useful guidelines to be considered in sentencing for child sexual penetration cases:

(a) Is there only a small age difference between the offender and the victim?
(b) Is the victim not far under the age of 16 years?
(c) Was there consent?
(d) Was there only one offender?
(e) Did the offender use a threatening weapon and not use aggravated physical violence?
(f) Did the offender cause physical injury and pass on a sexually transmitted disease to the victim?
(g) Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?
(h) Was it an isolated incident?
(i) Did the offender give himself up after the incident?
(j) Did the offender cooperate with the police with their investigations?
(k) Has the offender done anything tangible towards repairing his wrong such as offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did?
(l) Has the offender caused further trouble to the victim or the victim’s family since the incident?
(m) Has the offender pleaded guilty?
(n) Has the offender genuinely expressed remorse?
(o) Is this his first offence?
(p) Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
(q) Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

18. The State said these guidelines/considerations be used by the Court, towards arriving at the number of years the prisoner should serve in prison.

19. In light of the aggravating-factors/circumstances present in this case, and the fact that children and the weaker female part of the population requiring quick and continuous protection, the State argued that the Court should seriously exercise its discretion in favor of sentencing the prisoner to a term between thirty (30) and forty (40) years, after establishing the starting point at 35 years. The State did not cite any case authority to support their argument that the starting point should be 35 years.

Consideration

20. The maximum penalty for the offence of persistent sexual abuse pursuant to Section 229D (6) of the Criminal Code is life imprisonment subject to Section 19 of the Criminal Code. It is trite law in this jurisdiction that the maximum penalty for any offence should be reserved for the worst possible case encountered in practice: Golu Golu v the State [1979] PNGLR 653.

21. The pre-sentence report engages the views of the complainant, her father, the prisoner’s mother, the local catholic catechist and the local ward member. Whilst the complainant says what the prisoner did to her has affected her education and reputation, she also says that she falls unconscious and cannot see well. Her father says his daughter is traumatized and has lost her virginity and beauty. He says the prisoner should be sent to jail for a period before he can go on probation and pay compensation.

22. The prisoner’s mother on the hand, expresses her disappointment with him and says what he did brought bad reputation to the family and because of the closeness in the family relations, she is willing to help him pay compensation of K2,000 cash, 200 fathoms of shell money and K200 worth of food.

23. The catechist says he is a good reliable person and attend church faithfully whilst the ward member says he is also a good person and believes him and the complainant were having a secret relationship but because they were caught, the complainant turned against him.

24. In consideration of the facts and the circumstances of this case with the case precedents cited by counsels, I am of the view that this is not a worse case and so, I will impose a lesser penalty to the maximum penalty of life imprisonment.

25. Although the prisoner showed some remorse for the offence he committed, his demeanor in Court shows he is not naturally friendly. The pre-sentence report also acknowledges this trait about him. He was engaged in these sexual acts with the complainant who was under 16 years old, and his actions broke the law of this country. The age disparity of 5 years maybe be considered as small, but the complainant is still very young. This type of offence is prevalent, and he must face the consequences of your actions.

26. Having considered all of the above, I am satisfied that the aggravating factors are significant such as to warrant fixing his sentence at 10 years. I am also satisfied that he is eligible to some suspended sentence as he had asked for the Court’s mercy and intends to pay compensation. This is also to make amends with his matrilineal family. However, I am not prepared to suspend all of his sentence as I am of the view that the first half of his sentence should be served in remand to deter him and others from committing this and other offences in the future. The second half of his sentence will be suspended on the following conditions: -

(a) he shall pay the sum of K2,000 cash, 200 fathoms of shell money and K200 worth of food as compensation within 6 months from his release with customary reconciliation to the victim and her family, which reconciliation which shall be witnessed by the Ward Member and the Probation Officer in Kokopo.

(b) he shall reside at Ratongor village, Livuan/Reimber LLG and nowhere else except with permission of this Court;

(c) he shall not leave East New Britain Province without permission of this Court.

(d) he shall perform at least six hours unpaid community work each week at a place notified to the Probation Officer under the supervision of his Ward Member.

(e) he shall attend his local Church every weekend for service and worship.

(f) he shall report to the Probation Officer at Kokopo on the first and third Monday of each month between 9.00 am and 3.00 pm.

(g) he shall not consume alcohol or drugs.

(h) he shall keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and her family.

(i) he shall have a satisfactory probation report submitted to the Probation Office at Kokopo every six months after the date of suspended sentence.

(j) if he breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

Orders

27. The Orders of the Court are:

(i) He is sentenced to 10 years imprisonment.

(ii) His pre-sentence term of 2 years and 4 months is deducted from the head sentence.

(iii) He will spend another 2 years and 8 months in custody.

(iv) The balance of the sentence of 5 years is suspended subject to strict compliance with conditions.
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Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer for Prisoner