State v Nanuk (No 2) [2022] PGNC 125; N9537 (29 March 2022)

N9537

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1158 OF 2020

STATE

V

PHILEMON NANUK
(No 2)

Waigani: Wawun-Kuvi, AJ
2022: 25^th January, 9^th & 29^th March

CRIMINAL LAW–SENTENCE – Persistent Sexual Abuse-section 229D (1)(6) of the Criminal Code- convicted following trial-offender biological father of child victim- occasions involved sexual penetration – Sentence of 22 years imprisonment imposed.

Cases Cited

Barak v Independent State of Papua New Guinea [2020] PGSC 36; SC1949
State v Daop [2018] PGNC 575; N7757
State v JB [2007] PGNC 66; N3224
State v Kariva [2013] PGNC 376; N9040
State v Makai [2010] PGNC 107; N3914
State v Pora [2019] PGNC 14; N7672
The State v Cletus Barak [2018] N7398
Wartovo v State [2019] PGSC 11; SC1775

Reference

Criminal Code, Ch 262

Counsel

Ms E Kave, for the State
Mr F Kirriwom, for the Defence

DECISION ON SENTENCE

29^th March, 2022

1. WAWUN-KUVI, AJ: Philemon Nanuk (offender) was convicted following a trial for the persistent sexual abuse of his 14-year-old biological daughter (victim).
   
2. His daughter had grown up with her mother and her maternal family until she was about 13 years old, when her father, the offender brought her to reside with him and his family in Port Moresby. It is during that period in which she resided with her father that the abuse started.
   
3. On the first occasion the offender sexually penetrated his daughter by inserting his penis into her vagina. On the second occasion, he sexually penetrated her by inserting his penis into her mouth. On the third occasion, he sexually touched the victim on her breasts and on the fourth and final occasion he inserted his penis into her anus.
   
4. Having convicted the offender, I must now decide on the appropriate penalty.
   

Purpose of Sentencing

5. I am reminded that sentencing serves many purposes which are not limited to punishment of the offender. Sentencing considerations involve rehabilitation, sending a clear message that the community and society does not condone the offender’s conduct and protection of the community in serious and violent offences. Sentencing also serves as a deterrent to the offender and any likeminded individual.
   

The Charge

6. The offender was convicted following a trial on the charge of Persistent Sexual Abuse under section 229D (1) and (6) of the Criminal Code.
   

Penalty

7. The maximum penalty is life imprisonment subject to section 19 of the Criminal Code.
   
8. I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.
   

Submissions

The Defence

9. The Defence submit for a term of imprisonment less than 30 years. This was the sentence imposed in State v Pora [2019]^[1]. It was argued that 30 years was a quantum leap from the present sentencing trends. That a range between 18-22 years is more appropriate. It was further argued that the peculiar circumstance of this case warrants consideration for suspension.
   
10. In mitigation, it was contended that the offender expressed genuine remorse. In aggravation, it was submitted that the only aggravating features were the prevalence of the offence and the breach of trust.
    

The State

11. The State submits for a term of imprisonment between 25-30 years.
    
12. The State submits that the only factor in mitigation is that the offender has no prior convictions.
    
13. In aggravation, the State submits that the offending was persistent and occurred over a period of time, a trial was conduct and so the victim had to relieve the traumatic event, the prisoner had shown no real remorse, the prisoner abused a position of trust, authority and dependency, there were elements of pre-planning as he had always abused the victim when no one was around, the victim was only 14 years old and a virgin when the offender first sexually penetrated her, the age difference of 38 years, the offence occurred in the family residence, he had assaulted the victim during some of the occasions of the abuse, the offence has caused irreparable damage between the two families, the seriousness of the offence and finally the prevalence of the offence.
    
14. The State submits the following comparable cases:
    
15. State v Pora [2019]^[2], Salika, CJ: the offender was convicted following a trial of the persistent sexual abuse of his 14-year daughter. The abuse occurred on nine occasions during a 2-year period. All but one of the occasions involve sexual penetration. The offender was sentence to 30 years imprisonment.
    
16. State v Kariva [2013]^[3], Toliken, AJ (as he then was): The offender was convicted following a trial of the sexual abuse of his biological daughter. The abuse started when the victim was 11 years old and continued for two years until the victim became pregnant. All the acts of abuse involved sexual penetration. The offender was sentenced to 23 years imprisonment.
    
17. State v Makai [2010]^[4], Cannings, J: The offender was convicted following a trial of the sexual abuse of his 9-year-old sister-in-law. The abuse involved three occasions of sexual penetration over a 19-month period. The offender was sentenced to 20 years imprisonment.
    
18. State v JB [2007]^[5], Lay J: The offender pleaded guilty to two counts of persistent sexual abuse of two of his daughters. All the instances of abuse involved sexual penetration. He was sentenced to 10 years and 16 years. The sentence was made cumulative. In the application of the totality principle the sentence of 26 years was reduced to 20 years.
    
19. The sentences referred by the State Prosecutor indicate that on trials involving instances of sexual penetration and the offender is either the father or relative, the range of sentence imposed by the Courts are above 19 years. State v JB[2007] was a plea matter unlike the other cases.
    

Other comparable cases

20. Additionally, these are a few cases, that involve pleas or trials involving offenders that were either fathers or uncles of victims.
    
21. Wartovo v State [2019]^[6]: This was an application for review of a sentence of 22 years imposed by Kirriwom, J. The accused was convicted following a trial for the persistent sexual abuse of his then 13 year adopted daughter. The court found that the offender sexually penetrated the victim on three occasions within a period of three months. The Supreme Court in considering sentences in State v Makai [2010] and State v Barak [2018] were of the view that that the sentence was not excessive and refused the application.
    
22. The State v Cletus Barak [2018]^[7], Geita, J: The offender pleaded guilty to the persistent sexual abuse of his stepdaughter. The abuse involved one occasion of sexual penetration and four occasions of sexual touching. The victim was 15 years old during the occasions of abuse. The offender was sentenced to 19 years imprisonment. The offender filed a review in Barak v Independent State of Papua New Guinea [2020]^[8] and the Supreme Court affirmed conviction and sentence.
23. State v Daop [2018]^[9], Koeget, J: The offender pleaded guilty to the persistent sexual abuse of his 13-year niece. On seven occasions, the offender sexually penetrated the victim. She was impregnated by the offender. The offender was sentenced to 25 years imprisonment.
    

Personal Particulars

24. The offender is 41 years old and is from Haku Luli Village, Haku, Autonomous Region of Bougainville. His mother is from Morobe. His parents are divorced, and his father is remarried.
    
25. The offender has only one sister.
    
26. He completed Grade 10 at the Tusbab Provincial High School in 1999. In 2000 he graduated from Port Moresby Technical College.
    
27. He is presently married and has four children. His children attend primary school. He has two other children from previous relationships.
    
28. He is self employed and operates a Refrigeration and Airconditioning company.
    
29. He is in good health and consumes alcohol on occasions. He does not take any drugs.
    

Allocutus

30. In one sentence, the offender apologies to the victim and her mother. The rest of his statement in allocutus is a plea for leniency and for the welfare of his family. He asks for a good behavior bond. As in the pre-sentence report, the offender whilst he apologies, does not acknowledge that he committed the offence.
    
31. I do not accept his statement as a genuine sign of remorse.
    

Pre-sentence Report

32. The Probation Officer interviewed the offender, his wife, an employee and obtained character references from members of the offender’s church and community. The statements are favorable and speak of the offender’s prior good character.
    
33. The victim stated that the offender’s actions were bad and evil. That she wants justice to take its course. The victim’s mother states that she trusted the offender to take care of her daughter as he is her biological father. She explains that her daughter is not the same person. She pleaded with the Court to impose an appropriate sentence for the offender.
    
34. The Probation Officer makes no recommendations in the Pre-Sentence Report.
    

Victim Impact Statement

35. The victim states that she often dwells on what has happened to her. She had seen her father as her hero. She finds it difficult to socialize with her friends and feels unwanted and depressed. She is no longer playful and cheerful. She does not feel safe around male figures and has lost trust for other male relatives as well. She does not feel that she belongs and isolates herself. She has sleepless nights and cries when she thinks about what happened to her. The offence has affected her academic performance as she is struggling to get good grades. She states that the effects of the offences have left a scar on her that has affected her physically, mentally, and emotionally.
    

Mitigating Factors

36. I find that the only factor in mitigation is that the offender has no prior convictions.
    

Aggravating Factors

37. In aggravation, I accept the factors submitted in aggravation by the State.
    
38. There was additional dispute whether the trial was an aggravating factor. The offender has a right to defend the allegations against him. This cannot be considered as a factor in aggravation. However, the aggravating factor is that the complainant was put through the trauma of recalling what happened to her. It is the traumatic effect of the trial not the trial itself.
    

Consideration

39. The incidents of abuse that were perpetrated against this child were depraved. Although the child grew up with her mother, the offender should have loved and cared for her, because she was his biological daughter. To possess such carnal intentions of his own child, demonstrates that the offender cannot be trusted around young female children. Whilst the community leaders speak favorably of the offender, this offence was committed in the home setting away from the eyes of these community and church leaders. As is the nature of the offence.
    
40. The victim impact statement speaks volumes of the irreparable damage this offence has caused on the victim. Unlike other jurisdictions where counselling services are available for victims to help deal with the effects of trauma, in Papua New Guinea many if not all victims are left to struggle with the trauma as they forged their way into womanhood.
    
41. The victim was penetrated in the mouth, vagina, and anus. The offender had physically hit her and had even penetrated her when she was having her period. On one occasion his wife walked in on him abusing his daughter. He assaulted his wife. This did not deter the offender from continuing with his depraved actions. The only way he was stopped was when the victim took the courageous step to report to her mother. And for her mother again to take the step to report the offender to the police.
    
42. The offender’s pleas for leniency are weighed against these factors. He had the opportunity to consider his wife and children’s welfare when his wife had walked in on him abusing the victim. It is too late to come now to court and ask the Court to consider their welfare. His wife’s plea for leniency is also viewed in light her complacency or lack of effort to remove the child from the abusive situation.
    
43. Considering the mitigating and aggravating factors, factors peculiar to the offender, the current sentencing trends, the prevalence of the offence and the foregoing matters, the offender is sentenced to 22 years imprisonment.
    
44. The question now is whether the sentence should be suspended?
    
45. This was was a violent and serious offence. It is also a prevalent offence. It is not an appropriate case for suspension: see The Public Prosecutor v Sima Kone [1979] PNGLR 294.
    

Orders

46. The Orders are as follows:
    1. The Offender is sentenced to 22 years imprisonment in hard labour at the Bomana Correctional Institution.
    2. The Bail money is refunded.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender

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^[1] PGNC 14; N7672 (14 February 2019)
^[2] PGNC 14; N7672 (14 February 2019)
^[3] PGNC 376; N9040 (27 September 2013)
^[4] PGNC 107; N3914 (25 January 2010)
^[5]PGNC 66; N3224 (20 September 2007)
^[6] PGSC 11; SC1775 (1 March 2019)
^[7] N7398
^[8] PGSC 36; SC1949 (26 May 2020)
^[9] PGNC 575; N7757 (25 October 2018)