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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1163 OF 2023
THE STATE
V
ROY AWETU
(NO 2)
Waigani: Linge, AJ
2023: 19th June
CRIMINAL LAW – PRACTICE AND PROCEDURE – Sentencing – following trial – persistent sexual abuse – abuse
of trust, authority and dependency.
The prisoner was found guilty of 1 count of persistent sexual. The first incident of sexual abuse occurred between 1 April 2013 and
31 May 2013 when the victim was 10 years old. It occurred at the prisoner’s residence at North Waigani wherein the prisoner
in the spare room took out his penis and showed it to the victim then opened a packet of condom and placed it over his penis then
removed her clothes, forced her onto the floor and sexually penetrated her by inserting his penis into her vagina. On another occasion
between 1 May 2015 and 31 August 2015 after school and again at his residence the prisoner again in the spare room removed the victim’s
clothes, his clothes and forced her to the room and then sexually penetrated the victim’s vagina with his penis. The final
abuse occurred on Monday 4 May 2020, when the victim was about 17 years old. It was in the early hours of the morning, while everyone
in the house were asleep the prisoner forcefully woke the victim and forced her to the spare room where he sexually penetrated her
by inserting his penis into her vagina.
Held
Cases Cited:
Golu v The State [1970] PNGLR 653
Hane v The State [1984] PNGLR 105
Israel Wartovo v The State [2019] PGSC 11; SC1775
Lawrence Simbe v The State [1994] PNGLR 38
State v Andrew Pora (2009) N7672
State v Steven Siname (2009) N3908
The State v Steven Makai [2010] PGNC 107; N3914
State v Francis Tigi (No.2) [2013] PGNC 116; N5310
State v Philemon Nanuk CR 115 0f 2020; N9529
The State v Tom John Mou (CR 504/2019)
State v John Ritsi Kutetoa (2005) N2814
Sabiu v The State (2007) SC866
The State v Jessie Chadrol (2011) N4648
The State v Vincent Forn [2016] PGNC 241; N6418
The State v Esorom Asupa [2011] PGNC 197; N450
Counsel:
Ms. Kariko, for the State
Ms. Koek, for the Accused
SENTENCE
23rd June 2023
Facts
2. The prisoner is the adopted father and guardian of the victim Elizabeth Vincent Awetu.
3 The first sexual abuse took place between 1 April 2013 and 31 May 2013 when the victim was 10 years old. The victim was out in the
yard looking after the market table at the prisoner’s residence at North Waigani when the prisoner called her into the spare
room. He took out his penis and showed it to the victim then opened a packet of condom and placed it over his penis and told her
if he wore this condom and slept with her, she would not get pregnant. He then removed her clothes, forced her onto the floor and
sexually penetrated her by inserting his penis into her vagina. After this incident, he would continue to sexually abuse the victim.
4. On another occasion between 1 May 2015 and 31st August 2015, when the complainant was about 12 years old and attending Boreboa Primary School. After school, the prisoner chased her into the spare room and there, he removed her clothes, his clothes and forced her to the floor. He then sexually penetrated the victim’s vagina with his penis.
5. The final abuse occurred on Monday 4 May 2020, when the victim was about 17 years old. It was in the early hours of the morning, while everyone in the house were asleep the prisoner forcefully woke the victim and forced her to the spare room where he sexually penetrated her by inserting his penis into her vagina.
6. After this abuse, the complainant packed her bag, went to school and instead of returning to the prisoner’s house, she ran away to look for assistance and ended up with a friend at the University of Papua New Guinea housing estate where she told them about the sexual abuse by the prisoner and a formal complaint was laid.
7. Trial was conducted and on the 28 April 2023 the Court found the accused guilty of persistent sexual abuse and abuse of trust, authority and dependency.
Issue (s)
8. The issue before this Court is what appropriate sentence to be imposed on the prisoner.
Submission by State
9. State submits that sentence must reflect the seriousness of the charge and age of the prisoner. The victim had to endure having to subject herself to recount the incidents to police, court staff, lawyers and to the Court.
10. The prisoner is of an advanced age; a father and grandfather and the offences were perpetrated over a period of 8 years. He also breached the position of trust authority and dependency.
11. When it comes to sentencing, old age is not an excuse. It is not a licence to commit such offences. State thus submit that custodial sentences is warranted.
Submission by Defence
12. Defence submit that the prisoner is of advanced age and that an extended custodial sentence will amount to life sentence. Further, an appropriate custodial sentence would be 7 years. However, in this case 3 years be suspended, and he should be placed on 4 years probations to work full time with a local church.
The Law
13. The offence of persistent abuse of a child is contained in Section 229 D (1) & (6) of the Criminal Code. It 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.
Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.
...
(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.
14. Section 229 D (3) of the Criminal Code provides that it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence took place.
15. For the crime of abuse of trust, authority or dependency, this is contained in Section 229E (1) of the Criminal Code which provides:
(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.
Penalty: Imprisonment for a term not exceeding 15 years..”
16. The prescribed maximum term the Court can impose on the prisoner for offences against Section 229 D (1) is life imprisonment and for offending Section 229E (1) of the Criminal Code is 15 years. Both are subject to Section 19 of the Criminal Code which empowers the Court to use its discretion in sentencing an offender to a lesser custodial sentence.
17. The principle of sentencing is set out in Golu v The State [1970] PNGLR 653, Hane v The State [1984] PNGLR 105 that the maximum penalty should be reserved for the worst case.
18. It is trite law that each case must be determined on its own set of facts as Lawrence Simbe v The State [1994] PNGLR 38. The Court in exercising its discretionary sentencing powers should determine the appropriate sentence on the peculiarities of the case.
This Case
19. This case falls under the second category involving aggravating circumstances of persistent sexual abuse cases: State v Andrew Pora (2009) N7672; State v Steven Siname (2009) N3908.
20. The specific aggravating circumstance in this case is contained in Section 349A (e) of the Criminal Code. The prisoner while being the custodian and adopted father to the victim committed the offences and thus had abused the position of trust, authority or dependency towards her over a long period.
21. The first sexual abuse took place in 2013 when the victim was 10 years old. It took place at the prisoner’s residence at North Waigani when he called the victim into the spare room, took out his penis, showed it to the victim then opened a packet of condom and placed it over his penis. He then removed her clothes, forced her onto the floor and sexually penetrated her by inserting his penis into her vagina.
22. On another occasion in 2015 after the victim returned from school, the prisoner chased her into the spare room and there, he removed her clothes, his clothes and forced her to the floor. He then sexually penetrated the victim’s vagina with his penis.
23. The final sexual abuse of the victim was in the early hours on a Monday 4 May 2020 when the victim was 17 years of age. This occurred while everyone in the house were asleep when the prisoner forcefully woke the victim and forced her to the spare room where penile penetration of the victim’s vagina occurred.
24. The sexual abuses of the victim by the prisoner who was her adopted father and guardian, was clearly a breach of trust, authority and dependency on the part of the prisoner.
Consideration of Sentence
25. Each case is peculiar on its own set of facts however, Courts may be guided by case precedents and in this case, in arriving at an appropriate sentence for persistent sexual abuse and abuse of trust, dependency and authority by the offender.
26. The persistent sexual abuse commenced when the victim was only 10 years continuing to when the victim was 17 years. The nature of both these offences are serious in that they involved instances of sexual touching, indecent exposure and sexual penetration. The charges were not isolated incidents, but are the ones reported and are representative of what the prisoner had perpetrated and the victim had to endure over a period of 8 years.
27. The offence of persistent sexual abuse is of such a serious nature that it attracts a penalty of life imprisonment, where there is at least one instance of sexual penetration. Abuse of Trust Authority and Dependency is also serious in that a 15 years imprisonment is the prescribed maximum penalty. Here there are three instances of penile sexual penetration.
28. The serious breach of trust, authority and dependency here is an aggravated one due to the fact that victim came from Lae to be adopted by the prisoner and his wife who is the sister to the victim’s grandmother. At a tender age the victim was vulnerable and trusting and that had been violated by the prisoner.
29. He is of advanced age, a father and custodian and a grandfather to his sons’ children who all lived in the same house. He had a moral and legal duty as a person in trust, authority and dependency towards his biological offspring as well as adopted ones alike. Also, as a parent he is required to provide love and support, to teach and instil in their children discipline, good values and basis of what is right from wrong. Protection and shielding from harm and providing a safety net is a vital duty of a parent. Instead, the prisoner used the victim to satisfy his own perverted sexual gratification.
30. The Criminal Code (Sexual Offences and Crimes Against Children's) Act 2002 was enacted not only to punish persons like the prisoner but also to deter the like-minded and would be offenders. The purpose of the law is to protect the vulnerable children and women and give them a sense of security and justice. The hefty penalties are to punish such offenders and send out a clear message that such behaviour is unacceptable in this jurisdiction.
31. I consider the trauma and fear of the next abuse and sexual penetration endured by the victim over an extended period at the hands of the prisoner. Those sexual abuse at an early age robbed the victim of her innocence and youth and would have cast a shadow over her to not trust the prisoner as a person of trust, authority and dependency.
32. The evidence presented gives an impression to me that the prisoner had some perceived right to violate her young, adopted daughters’ body because she was living under his house, and he was providing financial support and putting her to school and provide clothing. In doing this the prisoner had put aside his role as a custodian and father and a person whom she can trust and instead ruined that bond forever.
33. There is a plethora of caselaw dealing with sentence for persistent sexual penetration in this jurisdiction. The general trend in contested trial is in the vicinity of 18 upward. For example, State v Thomas Angap (2005) N2557, 20 years; The State v Steven Makai [2010] PGNC107; N3914, 20 years; State v Francis Tigi (No.2) [2013] PGNC 116; N5310, 13 years; Israel Wartovo v The State [2019] PGSC 11; SC1775, 22 years; State v Philemon Nanuk CR 115 0f 2020; N9529, 22 years; The State v Tom John Mou (CR 504/2019), 23 years.
34. Generally, in guilty pleas for sexual abuse and penetration cases the sentences are lower. However, due to gravity of type two cases Courts have imposed higher sentences for example in, State v John Ritsi Kutetoa (2005) N2814, 17 years. The Supreme Court in Sabiu v The State (2007) SC866, 15 years and in The State v Jessie Chadrol (2011) N4648 Batari J held in reference to the Sabiu v The State (supra) that the sentencing range on a plea must be higher for category 2 cases involving aggravated sexual penetration of victims under 12 years),to be 7 to 25 years and for extreme cases of seriousness with no mitigating factors from 25 to life imprisonment.
35. In relation to abuse of trust authority and dependency the following cases gives an indication of the sentencing trends: The State v Vincent Forn [2016] PGNC 241; N6418, 13 years; The State v Esorom Asupa [2011] PGNC 197; N450, 15 years.
Mitigating Factors
36. The defence submitted the following mitigating factors for Court’s consideration:
(i) The prisoner is a first-time offender.
(ii) Prisoner cooperated with police.
(iii) Prisoner is of old age.
(iv) The victim did not suffer serious permanent injury.
(v) He expressed remorse to the Court.
Aggravating Factors
37. I have accepted the following aggravating factors:
(i) The offence is serious in nature.
(ii) There was a serious breach of trust, authority and dependency in that he was the adopted father of the victim.
(iii) The prisoner sexually abused the victim for a period of 8 years.
(iv) The sexual abuse started when the victim was very young, aged 10 years.
(v) The prisoner used a dangerous and offensive weapon, namely a knife to facilitate the offence.
(vi) The prisoner used actual and threats of violence when sexually abusing the victim.
(vii)The victim was far from home and her close family who resided in Lae.
(viii)The nature of the sexual acts varied; there were occasions of sexual touching of the breasts and sexual penetration of the vagina and indecent exposure to the child victim.
(ix) The victim is affected emotionally and psychologically as she still lives with the bad memories of the abuse.
(x) She will live with the stigma of being a victim of sexual abuse for the rest of her life.
(xi) Prevalence of the offence.
Antecedent
37. The Prisoner has no prior convictions.
Allocutus
38. Allocutus was administered. Prisoner seeks the Court’s mercy. He says he is an old man with an old wife who requires his perusal attention at all times. He is a first-time offender. That he sold everything, and he has nothing. He apologised for taking up Court’s time and wasting Government money on his case. However, he did not apologize to the victim.
Pre-Sentence Report
39. A Pre-Sentence Report (PSR) was ordered by the Court.
Victim Impact Statement
40, The victim provided a Victim Impact Statement in accordance with section 21A of the Criminal Code. I consider the physical and emotional impacts on her, the effects on her schooling and the hurt expressed by the victim and damage done to her, as a young woman. This is shown in her wish for the prisoner to be imprisoned for a long time because of what he has done to her.
Appropriate Sentence
41. In the end the decision on appropriate sentence is a matter for the Court to decide. In my view because of the nature of the offence of persistent sexual abuse, the Court must take a serious approach to ensure offenders are not left on the loose as it were, for the safety of female minors and young girls. The prisoner is an old man of some 77 years, and he took advantage of a vulnerable girl child to satisfy his twisted sexual desire and lust.
42. I have considered the factors submitted as factors of aggravation and as mitigating factors and concluded that the aggravating factors outweigh the mitigating factors. I have also considered the prisoner’s statement in the Allocutus and the Victim Impact Statement.
43. I will consider a custodial sentence for persistent sexual penetration as well as for the charge of abuse of trust, authority and dependency. The sentencing range will take into account all of the above but ultimately it will be at the discretion of the Court.
44. The final matter for my consideration is the question of concurrent or cumulative sentence. For this I consider the Supreme Court ruling in Tremellan v The Queen [1973] PNGLR 116 that:
“concurrent, sentences should generally speaking be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts.”
45. In considering the circumstances of the case and the maximum sentence being life imprisonment for persistent sexual abuse and maximum of 15 years imprisonment for abuse of trust authority and dependency, I will impose a midrange for each charge.
Order
1. The prisoner is sentenced to serve 18 years imprisonment for persistent sexual abuse.
2. The prisoner is sentenced to 7 years imprisonment for abuse of trust, authority and dependency.
3. Both sentences are to be served concurrently.
4. The whole sentence is wholly suspended on the following conditions:
(a) Prisoner is placed on probation for the whole period of sentence and shall report every month to the Probation office.
(b) Within 14 days to report to the Probation Office in NCD who will work out a schedule for the prisoner to clean the premises of his local church every Saturday. The Probation office is to monitor this.
(b) Any subsequent failure to work as above is a ground for revocation of his probation order and to be imprisoned.
Ordered Accordingly
__________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor : Lawyers for the Defendant
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