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State v Lare [2004] PGNC 218; N2557 (20 May 2004)

N2557

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 384 of 2004

THE STATE

-V-

PETER LARE

GOROKA: KANDAKASI, J.
2004: 10th and 20th May

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Unlawful carnal knowledge of girl under 12 years – Guilty plea – Offender with no prior convictions - Substantial age difference between prisoner and victim – Offences committed in breach of trust situation – No expression of remorse – Need and call for stiffer penalties against persons offending against children considered - A punitive and deterrent sentence called for – Sentence of 12 years imprisonment imposed - Criminal Code ss. 213 and 19.

Cases cited:
The State v. Peter Yawoma (Unreported judgment) N2032.
The State v. Joseph Minjihau (unreported judgment) N2243.
The State v. Moki Lepi (No. 2) (22/07/02) N2278.
The State v. Bernard Konombo (21/11/97) N1742.
John Aubuku -v- The State [1987] PNGLR 267.
The State -v- Sotie Apusa [1989] PNGLR 170.
James Mora Meaoa v. The State [1996] PNGLR 280.
Thomas Waim v. The State (02/05/97) SC519.
Eddie Peter v. The State (2) N2297.
The State v. Edward Toude & Ors (2) N2299 .
The State v. Otto Paulus (21/05/02) CR NO. 51 of 2002.
Grayson Andowa -v- The State (01/10/98) SC 576.

Counsel:
N. Miviri for the State
M. Apie’e for the Accused

20th May, 2004

KANDAKASI J: You pleaded guilty to one charge of sexual penetration of a girl (named but identified in this judgment only as the victim) under the age of sixteen (16) years. After having satisfied myself that it was save to accept you guilty following admission with your consent, the District Court depositions and a consideration of the same, I had you convicted of that charge. I then heard you in your allocutus and your lawyer and that of the State and reserved a decision on your sentence. This is now the Court’s decision on your sentence.

Relevant Facts

The facts supporting the charge and your conviction are these. Between 1st January 2001 and 29th January 2004, you had various sexual intercourses with a small girl then ten (10) years old. The background to these acts of your sexual intercourse is this. Both of the victim’s parents passed away when she was a baby. Following that, you and your wife, who is the victim’s aunt, adopted her. She thus grew up in your home.

In 2001, you started and continued to take her to the river for fishing and into the bushes looking for mushrooms, on journeys along the roadside. Witnesses confirm that you spent more time with the victim and not your wife. During these outings and even in the house, you started to play around with her vagina using your finger and kiss her. Around this time, when the victim tried to be with her peer group playing children’s games you used to call be back and would not allow her out of your sight.

The victim wanted to report what you were doing to her to her aunt but you prevented her by giving her K2.00s and K1.00 from time to time and told her that if she did report you, they will take you to the Court. If that happened the victim was fearful, of losing you as the only person would was supporting her could turn to for her care and up keep.

In January 2003, your playing with the victim’s vagina and kissing her turned into sexual intercourses with her. These sexual intercourses took place in the bushes, riverside, on the side of the road, and even in the house when your wife and her aunt was sleeping. You continued to have sexual intercourses with her for the whole of the year 2003 and carried over into January 2004.

On the 31st of January 2004, early in the morning, the victim went with her elder sister to their village. There, they stayed and after they had cooked some food and had eaten them, you called out for the victim several times. The uncle in whose house she was in got angry over the way you called and argued with you. In the course of the argument, her uncle made the point that the victim had every right to stay with him. Immediately after the argument with you, the uncle asked the victim as to what was going on between you and her as he had been suspicious of an intimate relationship based on your movements and the way you had behaved. That is well the victim everything that you had been doing to her up until the sexual intercourse in January of 2004.

You eventually learned of the victim reporting your acts to her uncles and tried to escape back into your own village Kafetisu, in the Henganofi District. But the relatives of the victim could see what you were trying to do and stopped you and took you to the police station. Thereafter the police had you charged and brought to Court.

Meanwhile, the relatives of the victim took her to the hospital for a medical examination. A doctor carried out a medical examination of the victim. This revealed no physical injury to her vagina or any part of her body. However, the examination did reveal a sexually transmitted decease evidenced by the presence of a greenish purulent discharge and found that her hymen was missing.

The Offence

The charge against you is under s. 229A of the Criminal Code. This provision reads:

"229A. Sexual penetration of a child.

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life."

Section 15 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No.27 of 2002) inserted this provision in the Criminal Code by way of an amendment to the Code. This amending legislation came about out of a growing concern over an ever increasing and prevalent sexual offences and crimes against the children. This concern was not only a local PNG concern but a world wide concern to protect the victims of such crimes particularly women, girls and children because of their vulnerability and therefore not able to defend themselves. The amendment also represents an action by Parliament against past sentences not deterring offenders like you and other would be offenders. Many judgments have acknowledged this failure of the past sentences. Examples of such judgments to name only a few are: The State v. Damien Mangawi (Unreported judgment delivered on 13/06/03) N2419; The State v. Dii Gideon (Unreported judgment delivered on 05/03/02) N2335;

Given this, the question that necessarily arises is what kind or sorts of sentences were in the past that caused Parliament to enact the provisions of s. 229? Section 213 of the Code created and prescribed the penalty for the offence under consideration. That provision in relevant parts read:

"(1) A person who has unlawful carnal knowledge of a girl under the age of 12 years is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life."

In enacting this provision and its penalty in this way, Parliament considered then that a sexual offence against a female child under the age of 12 years very serious because this category of our population is very vulnerable and defenseless. They are the country’s leaders and people of tomorrow. It is an accepted medical or scientific fact that whatever happens in a person’s earlier life remains long in their memories. Further, as this Court noted in The State v. Peter Yawoma (Unreported judgment) N2032 and The State v. Nivi Araba (Unreported judgment delivered on 22/04/99) N1849, even though there might be no evidence of any physical harm, numerous sexual and other violent offence cases clearly show that, victims of such offences continue to suffer ongoing psychological problems. Unlike in countries like Australia and elsewhere, there are no readily available appropriate medical services to assist victims to overcome such problems. Such specialist medical services are almost non-existent in our country. This leaves victims of such offences with no assistance at all.

The question then is, did the judges and the Courts impose sentences reflective of the fact that this is a serious offence? A quick search of passed decisions on sentence reveals only a few cases. This does not mean that the incidents of this offence are few, hence the number of judgments published. Instead, it is a well-known fact that not all judgments have been published.

Of those published, one of the earliest reported cases is, The Secretary for Law v. Kwauga [1974] PNGLR 135. There the trial judge imposed a sentence of 2 years, which was on appeal increased to 4 years as the appellate court considered the sentence imposed by the trial judge was too low. In that case, the respondent was 30 years old while the victim was between eight and nine years old. He led the victim away and had sexual intercourse with the victim. The victim suffered some internal lacerations and bleed because of that and had difficulty walking. The respondent also had a prior conviction for the similar offence, which did not deter him.

About 20 years later in The State v. Bernard Konombo (Unreported judgment delivered on 21/11/97 N1742, the National Court imposed a sentence of 4 years. In that case, the prisoner had three separate acts of sexual intercourse with a nine year old girl. However, he was charge with only one count of unlawful carnal knowledge of a girl under 12 years. He also had a prior conviction a similar offence before.

Then about two years later from the date of the above judgment, The State v. Nivi Araba (Unreported judgment delivered on 22/04/99) N1849, the Court imposed a sentence of two years. In that case, the victim went to a river to take her bath. The prisoner who had also gone there on seeing the victim there, he approached and carried her away into the nearby bushes and forcefully had sexual intercourse with the victim. The victim suffered laceration injuries to her vagina and suffered some bleeding in the consequence.

The final and more recent judgment is my judgment in The State v. Damien Mangawi (supra), where I imposed a sentence of 12 years, following a charge brought under the old s.213 of the Code. There, the victim was aged 3 years old and prisoner was 16 years old. The victim was a niece to the prisoner. He forcefully had sexual intercourse after taking her away from the village. The victim had difficulties passing out urine because of injuries to her vagina.

No doubt, Parliament has aware of the kind of sentences the Courts were imposing and more importantly those sentences failing to deter other men and older boys who were intent on committing this offence against small girls. Some of the cases that went before the Courts were actually rape and others were cases of incest in blatant breach of trust placed in the older offenders by the victims as close relatives. Parliament therefore felt the need, in my view, to re-emphasis the seriousness of the offence and reenacted offence and in terms of the particular wording in s. 229A. This enactment has come at a time when past sentences have certainly not deterred people like you from committing the offence despite all the concerns raised publicly both within our country and in the international arena.

I accept that the Courts have a discretion under s. 19 of the Code to impose a sentence lower than the prescribed maximum in appropriate cases. However, the Courts have a duty to take into account the prevailing circumstances and the community’s desire to prevent if not eradicates such serious offences against children, evidenced by the re-emphasis placed on the offence by Parliament. In so doing, the Court is under an obligation to ensure to that the sentences they decided to impose do reflect the wishes of the community, the harm done to the victim, the need to deter other would be offenders and to help rehabilitate the offender.

As I said in The State v. Louise Paraka (Unreported judgment delivered on 24/01/02) N2317:

"....the Court is under an obligation to take note of all developments, if any, in the incident or the kind of offence under consideration. If there is a decline in the offence, it could mean amongst others that the past sentences have been effective. If however there is an increase in the number of the kind of offence under consideration, it means the opposite. When such is the case, then the sentences previously imposed must be reviewed with a view to increasing the sentences."

Your Case

Noting all of the above, I now need to decide on an appropriate sentence for you. In order to do that, I note you are 40 years old and come from Kafetugu village in the Henganofi District of this Province. You are married to two women, one of which is the victim’s aunt. You have no children from your first wife but you do have four children, which is an increase by one child from what you told the Court during your record of interview. These children are from your second wife. You have reached grade 1 only in terms of your formal education. Given your educational level you have no formal employment and live a subsistence style of dwelling, away for the other villagers.

In your allocutus, you told the Court that, you were sorry for what you have done. You also told the Court that your father is deceased while your mother is alive. Further, you told the Court that, you are the only one in your family and is the one that looks after your mother. Given these, you asked the Court to be merciful toward you.

For the purposes of determining and appropriate sentence for you, I note there are only two factors in your favour. Firstly, you pleaded to guilt to a serious charge. This is something you did from the time of your arrest by police. You have therefore cooperated with the relevant authorities up to this Court. This has spared the trouble and ordeal of the victim coming to Court and recount before you and other total strangers of the things you did to her.

In this regard, it seems you were genuine when you said sorry. Nevertheless, note that there is no evidence of you paying any compensation to the victim and her relatives. There is also no evidence of you expressing genuine remorse directly to the victim and her people. Numerous case authorities say that where a prisoner merely says sorry in Court with any thing tangible such as compensation, such mere expression of sorry or remorse means nothing: See for example Rudy Yekat v. The State (Unreported judgment delivered on 22/11/01) SC665; Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000, in The State v. Lucas Yovura (Unreported judgment delivered on 29/04/03) N2366.

Secondly, you are a first time offender. That means this is the first time for you to stand before this Court or any court for committing an offence. If this is taken in isolation, this would be right. However, when we consider this in the context of the full background leading to the charge against you, it is clear that you have in fact been continuing to commit a number of offences over four years repeatedly. This started in 2001 when you started playing with the victim’s vagina and kissed her. This continued over two years up to the year 2003. What you did were serious offences prohibited by ss. 229B (sexual touching), 229C (indecent act directed at a child), 229D persistent sexual abuse of a child and 229E (abuse of trust authority or dependency). The penalties for this offences range from 12 years to life imprisonment as well.

After your playing with the victim’s vagina, it developed into sexual intercourses with her, which started in year 2003 up until late January 2004. When you did that, you were in continuous violation of the prohibitions under s. 229A as well as in my view s.229D and 229E. The only problem is you were not charged for any or all of these offences until early this year.

In situations like your cases, I have had little or no regard to a plea of being a first time offenders. An example of that is my judgment in The State v. Kenny Reuben Irowen (Unreported judgment delivered on 24/05/02) N2239. There the prisoner, did not have any prior convictions but did have a history of beating up his wife. I therefore had no or little regard to him being a first time offender. I note other judges have done likewise an example of which is my brother Justice Jalina’s judgment in The State v. Amos Kiap (Unreported judgment delivered on 19/03/3) N2452. In both these cases, the Court imposed the maximum prescribed sentences of 7 years.

Against these, are a number of serious aggravating factors. The first is the fact that the victim was your adopted daughter. She came under your care after both of her parents passed away. She therefore depended on you for everything. You were her father for all practical purposes. She therefore trusted you as such and you were everything to her. Indeed, she confirms this in her own statement in the hand up brief, where she says because she had nowhere else to turn to she did not report you to the police or anybody else, confirms this. You destroyed that trust not once, not twice but numerous acts repeated over a period of almost four years.

Both this Court and the Supreme Court have clearly stated that a offence committed in the breach of trust renders the commission of the offence serious. The Supreme Court in James Mora Meaoa v. The State [1996] PNGLR 280, made that clear. In so doing, it held that a breach of a position of trust is an aggravating factor in sexual offences and warrants heavier sentence. It also held that positions of trust are not limited and may extend to de facto situations such as a vehicle or boat operator and his passengers. I have adopted and applied this principle in a large number of cases and example of which is The State v. Eddie Peter (No 2) (Unreported judgment delivered on 12/10/01) N2297.

Parliament has now confirmed this seriousness by enacting s. 229E of the Criminal Code. It carries a maximum sentence of 15 years. In your case, your relationship with the victim was close. She was a part of your family as much as you were. It was therefore not a de facto one. You did not by your conduct, respect and or honour that. Instead, you exploited it for your own personal over almost four years.

The next factor in aggravation is that, you spoiled a young girl’s future. You infected her with a sexually transmitted decease. It seems fortunate that she did not become pregnant in view of no evidence to the contrary. It is not clear, whether she will be able to find some to marry her later and have a family of her own.

You had two wives. One of them was barren. If you really had strong sexual urge and could not control it, she was available. There is no evidence that she was not or that you could not easily get yourself satisfied by going to her. Further, if for whatever reason you were not able to satisfy your sexual desires through your wife that was barren, you could have turned to the second wife. Again, there is no evidence showing why you could not do that.

Thirdly, as I noted earlier, you committed a serious of criminal acts repeatedly for almost four years. I have no doubt in finding that you could have continued to commit these serious of offences. This is going by the fact that you committed these offences repeatedly for such a long time. Fortunately, there has been a stop to that. Nevertheless, I am mindful of the fact that sexual offenders like you have the tendency of repeating such offences, which is confirmed by your own conduct her. Accordingly, it would be appropriate for the protection of the victim that you be given a longer prison term with a view to minimizing if not eliminating that risk.

Fourthly, I note that you continued to commit these offences at a time when there has been much talk and focus on the protection of children, women and girls from sexual predators like you, with a view to minimizing or better still eradicate such offences. The highest authority in the land, Parliament passed the appropriate law to achieve that aim or object. Despite all this efforts, you continued to commit the offences even up to this year. Your actions are therefore contemptuous of these concerted efforts.

Carrying on from the above is the fact that despite the serious concerns raised and Parliaments actions, people like you are continuing to commit these offences. The kind of offences you committed is therefore very prevalent. Of the criminal matters, I have had to deal with on circuit to Vanimo, Popondetta and now here in Goroka, sexual offences of the kind you committed against young girls by close relations or relatives top the list. Here I am speaking about the case of The State v. Junior Apen Sibu (No.2)(Unreported and yet to be numbered judgment delivered on 25/03/04) CR 1450 of 200; The State v. Garry Sasoropa & Ors (Unreported and yet to be numbered judgment delivered on 29/04/04) CR NO. 261 of 2004; The State v. Julius Ombi (No.2) (Unreported judgment delivered on 30/04/04) CR No. 342 of 2004 to mention a few.

This is not an offence only against the victim of your offence the victims of the other similar offenders. It is indeed a serious offence against all women, girls and children and the entire country. This is because there is so much crime on the highways, stores, dwelling house and other places by third parties and people in positions of trust. The home, the community and the relations people have are the only places left where one could turn to for protection. However, people like you are destroying it. This is partly, in my view, inhibiting progress in our communities and our country as a whole.

Finally, as already noted, there is no evidence that you paid customary compensation to the victim and her relatives for the serious wrong brought upon her and her people. This, in my view, demonstrates a lack of genuine remorse on your part for the wrong you have done to the victim and to her people. In our society, the payment of compensation for a wrong done to another appeases the wrong and restores broken relations for a peaceful living. I have not undertaken that age-old practice of our people.

In weighing the factors both for and against you, I not that generally, a guilty plea by a first time offender brings his sentence to one less than the maximum prescribed in the exercise of the Courts discretion under s. 19 of the Code. Nevertheless, in cases where the aggravating factors outweigh the mitigating factors such as a guilty plea, the maximum or a higher sentence can be imposed. Injia J. (as he then was), applied that principle in The State v. Kenneth Penias [1994] PNGLR 48. The Supreme Court approved an application of that principle in Seo Ross v. The State (Unreported judgment delivered on 30/04/99) SC605: See also The State v. Kenny Reuben Irowen (supra) and The State v. Amos Kiap (supra).

In your case, I find that the aggravating factors as noted above far out weigh the factors in your favour. In my view, therefore is nothing to prevent an imposition of the maximum prescribed sentence of life imprisonment, except for your guilty plea. Given that, a determinate term of years is, in my view, appropriate and not the prescribed maximum of life imprisonment. However, such a sentence should be something that is closer to the prescribed maximum. I consider a sentence between 20 to 30 years appropriate. I consider it appropriate and impose against you a sentence of 20 years in hard labour less the time already spent in custody awaiting your trial. I am constraint to impose this sentence to avoid any sense of the Court taking a huge quantum leap given the kind of sentences imposed in the past. But I do so without moving away from the observations I made regarding the concept of no quantum leap as in The State v Edward Toude, Walter Yogana, and Ors (No 2) (Unreported judgment delivered on 18/10/01) N2299; The State v Eddie Peter (No 2) (12/10/01) N2297and others, which has been recently endorsed by the Supreme Court in Mary Bomai Michael v. The State (Unreported judgment delivered on 01/04/04) SCR 02 of 2003.
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Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor