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Independent State of Papua New Guinea v Barimai [2023] PGNC 30; N10130 (17 February 2023)

N10130


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR 573 OF 2022


BETWEEN:
INDEPENDENT STATE OF PAPUA NEW GUINEA


AND:
JOHN BARIMAI


Waigani: Wawun-Kuvi, AJ
2022: 20th October & 6th December
2023: 16th February


CRIMINAL LAW-SENTENCE-Guilty Plea- Persistent Sexual Abuse of a Child, s229D (1)(6) of the Criminal Code- 15-year-old female child- 2 occasions of sexual penetration- Offender in late 50’s-14 years imprisonment


Cases Cited:
State v Nanuk (No 2) [2022] PGNC 125; N9537
State v Haririen (2021) CR 1180 of 2020 (5 August 2021) (Unnumbered decision)
Barak v Independent State of Papua New Guinea [2020] PGSC 36; SC1949
Wartovo v State [2019] PGSC 11; SC1775
State v Apelis [2018] PGNC 205; N7300
State v Kankan [2017] PGNC 25; N6630
State v Kabian (2016) NCSO 552
State v Kila Depit, Cr. No. 456 of 2015, Unreported National Court Decision
State v Tigi (No.2) [2013] PGNC 116; N5310
State v Paulo [2013] PGNC 112; N5286
Sate v Molean [2012] PGNC 81; N4697
State v Tutuvo [2011] PGNC 117; N4400
State v Makai [2010] PGNC 107; N3914
State v Siname [2009] PGNC 213; N3908
State v Solowet [2007] PGNC 226; N5039
State v Kepas [2007] PGNC 77; N3192
Nawa v State [2007] PGSC 50; SC1148
Saperus Yalibakut v The State (2006) SC890
Gima v The State [ 2003] SC 730
State v Winston [2003] PGNC 146; N2347
Public Prosecutor v Hale [1998] SC 564
The State v. Aruve Waiba [1994] CR1/94(Unreported and Unnumbered)
Kalabus v The State [1988-89] PNGLR 193
The State v Lilu [1988-89] PNGLR 449
State v Kagai [1987] PNGLR 320
State v Tardrew [1986] PNGLR 91
Public Prosecutor v Thomas Vola [1981] PNGLR 412
The State -v- Tendi Kalio Ulo [1980] PNGLR 350
Public Prosecutor v Sima Kone [1979] PNGLR 294
Goli Golu v The State [1970] PNGLR 653


References
Criminal Code Ch 262
Evidence Act 1975


Counsel
Ms Violet Ningakun, for the State
Ms Tymillah Yapao, for the Offender


SENTENCE


17th February, 2023


  1. WAWUN-KUVI, AJ: John Barimai (offender) is an adult male from Karuwama Village, Bereina, Central Province. He pleaded guilty to the persistent sexual abuse of a female child. The child was aged 15 years. The abuse consisted of two occasions of sexual penetration.
  2. The child and John Barimai are known to each other. They both resided at an area surrounding the Bomana Correctional Institution.
  3. On the first occasion, the child was fetching water when the offender grabbed her and pushed her to the ground. He proceeded to remove her trouser and insert his penis into her vagina.
  4. On the second occasion, the child was on her way home when the offender approached her and told her to have sexual intercourse with him. When the child refused, the offender pushed her to the ground. He removed her trouser and inserted his penis into her vagina.
  5. These are the facts that the offender pleaded guilty to.
  6. The issue for my determination is what is the appropriate penalty?

The Charge


  1. The offender pleaded guilty to the charge of Persistent Sexual Abuse of a Child pursuant to section 229D (1)(6) of the Criminal Code.

Penalty


  1. The maximum penalty is life imprisonment.
  2. The maximum is reserved for the worst case: see Goli Golu v The State [1970] PNGLR 653.

Submissions


  1. The State submits that a sentence of 18 years imprisonment is appropriate given the seriousness of the offence and that it will serve as both specific and general deterrence.
  2. The Defence submits for a sentence of 15 years imprisonment. It contends that the facts of this case do not place it in the worst-case category.
  3. Counsels submit the following comparable cases:
  4. State v Haririen (2021)[1], Kangwia, J: The offender pleaded guilty to persistent sexual abuse of his 12 year old step daughter. The occasions of abuse involved sexual touching of the breasts and vagina and sexual penetration. The offender was sentenced to 12 years imprisonment.
  5. State v Apelis [2018][2], Anis J: The offender pleaded guilty to persistent sexual abuse of his granddaughter. On two separate occasions when she was 12 and 15 years old the offender sexually penetrated her by inserting his penis into her vagina. The offender was 66 years old. The offender was sentenced to 25 years imprisonment; 10 years of the sentence was suspended.
  6. State v Kankan [2017][3], Lenalia J: The offender pleaded guilty the persistent sexual abuse of a child aged 13 years. On five separate occasions the offender sexually penetrated the child by inserting his penis into her vagina. He was 74 years old and was considered as the child’s grandfather. The offender was sentenced to 10 years imprisonment. 2 years of the sentence was suspended, and the balance of 8 years was ordered to be served.
  7. State v Kabian (2016)[4], Lenalia J: The offender pleaded guilty to persistent sexual abuse of his granddaughter. He was 64 years old. He was sentenced to 14 years imprisonment. 5 years was suspended, and the balance was ordered to be served.
  8. State v Kila Depit, Cr. No. 456 of 2015, Unreported National Court Decision: The offender was convicted following a trial for persistent sexual abuse of a child. The child was aged 9 years. The offender was sentenced to 20 years imprisonment.
  9. State v Tigi (No.2) [2013][5], Kirriwom J: The offender was convicted following a trial for the persistent sexual abuse of a 12-year-old child. He was 61 years old at the time. The occasions of abuse involved sexual touching and penetration. The offender was a family friend of the child’s parents. He resided with the family. The offender was sentenced to 13 years imprisonment.
  10. State v Paulo [2013][6], Toliken AJ (as he then was): the offender pleaded guilty to the persistent sexual abuse of his biological daughter who was aged 11 years. The occasions involved sexual touching of the vagina and sexual penetration. The offender was sentenced to 20 years imprisonment.
  11. State v Molean [2012][7], Gabi J: The offender pleaded guilty to one count of sexual penetration of his 12 year old granddaughter. The offender was 81-year-old. The offender was sentenced to 10 years imprisonment which was wholly suspended on account of the offender’s age. Conditions were imposed.
  12. State v Tutuvo [2011][8], Ipang J (as he then was): The offender pleaded guilty to persistent sexual abuse of a 9-year-old child. The offender was 55 years old. The occasions involved two incidents of digital penetration and two incidents of penial penetration. The victim was infected with a sexually transmitted disease. The offender was sentenced to 18 years imprisonment.
  13. State v Siname [2009][9], Lenalia J: The offender pleaded guilty to the persistent sexual abuse of his 15-year sister. The occasions consisted of sexual penetration. The abuse was discovered when the victim gave birth to a child which later died. The offender was sentenced to 28 years imprisonment.
  14. State v Solowet [2007][10], Cannings J: The offender was convicted following a trial of persistent sexual abuse of his 9-year-old niece. The abuse consisted of three occasions of digital penetration of the vagina. The offender was 58 years old. He was sentenced to 10 years imprisonment. 2 years was suspended with conditions and the balance was ordered to be served.
  15. State v Kepas [2007][11], Cannings J: The offender pleaded guilty to persistent sexual abuse of his 10-year-old adopted daughter. There were five occasions of which one involved sexual penetration. The offender was 61 years old. The court considered that a sentence of 25 years would be appropriate but given the offender’s age and medical condition it imposed a sentence of 12 years imprisonment.
  16. I also consider the following cases comparable:
  17. State v Nanuk (No 2) [2022][12]: Wawun-Kuvi, AJ: The offender was convicted following a trial for the persistent sexual abuse of his 13-year-old biological daughter. The abuse involved three occasion of sexual penetration and one occasion of touching. The offender was sentenced to 22 years imprisonment.
  18. Barak v Independent State of Papua New Guinea [2020][13]: The appellant pleaded guilty to persistent sexual abuse of his 15-year-old stepdaughter. There was one occasion of sexual penetration and four occasions of sexual touching involving the vagina and breasts. The appeal was dismissed, and the sentence of 19 years imprisonment was affirmed.
  19. Wartovo v State [2019][14]: The appellant was convicted following a trial of the persistent sexual abuse of his 13-year-old stepdaughter. The abuse involved three different occasions of sexual penetration. On appeal the Supreme Court dismissed the appeal and affirmed the sentenced of 22 years imprisonment.
  20. State v Makai [2010][15], Cannings J: The offender was convicted following a trial for the persistent sexual abuse of his sister in law. The offender was 30 years old and the child was between 9 and 10 years old. The abuse consisted of three separate acts of sexual penetration. He was sentenced to 20 years imprisonment.
  21. The above cases show that generally in cases where there is a relationship of trust and authority between the victim and the offender, the offender sexually penetrated the child with his penis and there were no special mitigating factors such as age and illness, the sentences range between 18- 22 years.
  22. I remind myself at this juncture that it is the peculiar circumstance of each case that is the determining factor: The State v Lilu [1988-89] PNGLR 449 (25 October 1989).

Personal Antecedents


  1. According to the antecedent report, the offender’s date of birth is listed as male adult. Ms. Yapao for the offender submits that her client is in his late 50’s. Ms. Ningakun submits that the offender is likely in his 50’s or 60’s. Mr. Gopave, the Probation Officer states that offender is in his late 50’s approaching 60.
  2. I have seen the offender and pursuant to section 63 of the Evidence Act 1975 accept that he is in his late 50’s.
  3. He is from Central Province and before his incarceration for this offence he was employed as a security guard with Dekenai Construction.
  4. His mother died when he was a young child and his father passed away a few years ago. The offender has two brothers and two sisters who reside in the village.
  5. The offender was married and of that marriage he had four children. He is separated from his wife. His children reside with their mother.
  6. The offender has had no formal education. He left school at around Grade 4.
  7. The offender has no savings and no physical assets.

Allocutus


  1. The offender stated in allocutus:

“I want to say sorry for what I did, and I say sorry to the Court and if the Court can have leniency on me.”


  1. Considering the offender’s guilty plea, cooperation with police and his statement in allocutus, I accept that the offender has demonstrated genuine remorse for his actions: Kalabus v The State [1988-89] PNGLR 193 (27 October 1988).

The Victim Impact Statement


  1. The victim states that the offender is her grandfather. That he was residing with them, and her father assisted him to find employment. He was supported by her family. She states that she has been emotionally and mentally affected. Her grades have been affected. She was in Grade 7 and is concerned that she may fail her Grade 8 exams. Her mother has been affected by the offence because the offender is her uncle. She took him in and cared for him. She does not feel safe because the offender continues to threaten her from prison. She wishes for the offender to remain in custody until his death.

Factors in aggravation


  1. I have considered submissions by counsel and find the following to be aggravating:
    1. The offence consisted of two occasions of forced sexual penetration on a child.
    2. Some violence in the form of pulling and pushing the victim was involved.
    3. The emotional and mental trauma that was caused and will continue to cause for the child.
    4. The prevalence of the offence.
  2. I do not accept in aggravation that there was a breach of trust, authority, or dependency. The facts that the offender pleaded guilty to where such that the victim and the offender are known to each other and reside in the same area. The State did not allege any relationship of trust, authority, or dependency: see Nawa v State [2007] PGSC 50; SC1148 (2 March 2007) and Saperus Yalibakut v The State (2006) SC890 on the authority that the offender must be sentenced on the facts that he pleaded guilty to.

Factors in mitigation


  1. In mitigation, I find:
    1. The offender pleaded guilty and saved not only the Court’s time but the additional trauma that would have been caused on the victim during trial.
    2. His expression of remorse for his actions.
    3. His cooperation and admissions to police.
    4. That he is a first-time offender with no prior convictions.

Consideration


  1. This is an offence that is very prevalent in our society. The number of cases reported to police and those that continue to inundate the Court systems demonstrate the degree of pervasiveness of this disgusting and abhorrent behaviour towards the most vulnerable members of our society. Whilst offenders serve their prison sentences and are reintegrated in society; most child victims are left to survive and deal with the emotional and psychological scars of the abuse. Without proper counselling and support, it can only be assumed that these child victims find difficulty in realigning their lives to what was once considered normal.
  2. In this case the victim continues to suffer emotionally and mentally. She has difficulty concentrating in school.
  3. I have considered the victim’s view against the facts that are peculiar to the offender’s case.
  4. I have also considered that unlike the cases discussed previously, the facts the offender pleaded guilty demonstrate that the offender’s conduct was not premeditated. The offender encountered the victim by chance on each occasion and on each occasion allowed his perverted sexual urges to override any good sense.
  5. Considering all the foregoing factors, I consider that a sentence of 17 years imprisonment is appropriate. However, as the offender is in his late 50’s such a sentence would be tantamount to a life sentence. Instead, I impose a sentence of 14 years imprisonment.
  6. The offender has been in custody since 21 July 2021. The period spent in custody of 1 year, 6 months, 3 weeks and 6 days is deducted. The offender shall serve the balance of 12 years, 5 months and 1 day at the Bomana Correctional Institution in light labour.
  7. I have considered suspension and the relevant principles that govern suspension[16] and the three broad categories discussed in State v Tardrew [1986] PNGLR 91.
  8. The age of the offender is a relevant consideration however, I am reminded that the same factors used to mitigate sentence can not be used to further suspend sentence: see Public Prosecutor v Vola [1981] PGSC 26; [1981] PNGLR 412. I have already considered the hardship the offender is likely to suffer due to his age and have already reduced his sentence accordingly.
  9. As sentencing is a community approach, the Court must be informed of the views of the community and materials that support reintegration and rehabilitation. The Pre-Sentence Report is not favorable to the offender and states that he is not a suitable candidate for a suspended sentence. There is very little if nothing that supports rehabilitation and reintegration in the community.
  10. The offence is prevalent and is a serious offence. Suspension is not appropriate in the given circumstance.

Orders


  1. The Orders of the Court are as follows:

1.The offender is sentenced to 14 years imprisonment.

2.Time spent in custody of 1 year, 6 months, 3 weeks and 6 days is deducted.

3. The offender shall serve 12 years, 5 months and 1 day in light labour at the Bomana Correctional Institution.
______________________________________________________________
Office of The Public Prosecutor: Lawyers for the State
Office of The Public Solicitor: Lawyers for the Defence

[1] CR 1180 of 2020 (5 August 2021) (Unnumbered decision)
[2] PGNC 205; N7300 (21 June 2018)
[3] PGNC 25; N6630 (1 February 2017)
[4] NCSO 552
[5] PGNC 116; N5310 (24 July 2013)
[6] PGNC 112; N5286 (24 May 2013)
[7] PGNC 81; N4697 (19 March 2012)
[8] PGNC 117; N4400 (9 September 2011)
[9] PGNC 213; N3908 (8 December 2009)
[10] PGNC 226; N5039 (24 August 2007)
[11] PGNC 77; N3192 (21 March 2007)
[12] PGNC 125; N9537 (29 March 2022)
[13] PGSC 36; SC1949 (26 May 2020)
[14] PGSC 11; SC1775 (1 March 2019)
[15] PGNC 107; N3914 (25 January 2010)
[16] Gima v The State [ 2003] SC 730, State v Winston [2003] PGNC 146; N2347, Public Prosecutor v Hale [ 1998] SC 564, The State v. Aruve Waiba [1994] CR1/94(Unreported and Unnumbered), State v Kagai [1987] PNGLR 320, State v Tardrew [1986] PNGLR 91, Public Prosecutor v Thomas Vola [1981] PNGLR 412, The State -v- Tendi Kalio Ulio [1980] PNGLR and Public Prosecutor v Sima Kone [1979] PNGLR 294.

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