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State v Matatenge [2007] PGNC 59; N3218 (14 June 2007)

N3218

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.480 OF 2007

THE STATE

v

HENRY MATATENGE

Kokopo: Lenalia, J.

2007: 16 May
& 12th & 14 June

CRIMINAL LAW – Sexual offences – Incest between father and daughter – Two counts of - Aggravations – Existing relationship of trust, dependency and trust – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, s.223 (1)

CRIMINAL LAW – Sexual offences – Incest – Substantial Age differences – No expression of remorse – Pattern of abuse over a period of years – Aggravation – Punitive and deterrent sentence called for – Sentence of 12 years for two counts appropriate.

CRIMINAL LAW – Sentences on sexual case – Trend – Sentences for sexual case should not be as high as those imposed for homicide case – Logic of.

Cases cited

The State v Mitige Neheya [1988-89] PNGLR 174
The State v Sottie Apusa [1988-89] PNGLR 170
The State v Peter Lare (2004) N2557
The State v Penias Mokei (2004) N2635
The State v Thomas Angup (2005) CR N0 414 of 2005
The State v John Ritsi Kutetoa (2005) N2514
The State v Esrom Tiama (13.4.06) CR N0 254 of 2006
The State v David Duna Burua (6.7.06) Cr.N0.829 of 2005

Counsel

Mr. R. Auka, for the State
Mr. P. Moses, for the Accused

13 June, 2007

1. LENALIA, J: The accused pleaded guilty to two counts of sexual penetration of his own daughter, an offence against s.223 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The two offences were aggravated by a number of factors such as threats applied by the prisoner to the victim A. M. for purposes of submission to his sexual gratification. Then there was the breach of the existing relationship of trust, dependency and authority at the time of the offences. As the facts show there was persistent abuse of the victim over a period of years since the victim was doing Grade 8 up until she did her Grade 11 at Utmei High School in 2006. Finally but not the least, the victim was under the age of 16 years from the time she was first molested.

FACTS

2. The victim whom I will only refer to as A. M. was doing Grade 8 at Vunadidir Primary School in 2003 when the prisoner commenced committing incest with her. On the night of 4 December 2003, the prisoner and his family went to attend the victim’s uncle’s birth day party in the nearby village. While in the party, food was served together with alcohol beverages. The prisoner got very drunk. When the family returned, the mother did not come with the accused, the victim and other children.

3. On arrival at their house, the victim and her small sister went into their room, they locked them in and started to sleep. Likewise her three little brothers went into the other room and they went to bed straight away. While the children were all asleep, the prisoner went to the girls’ room and used a spare key to open the door. He sat beside the victim on her bed and woke her up. When she woke up, the prisoner asked her if he could have sex with her. The victim could not just believe her ears. She started to cry. The prisoner produced a pocket knife to the victim and said if she did not submit to him, he would stab her. He told the victim to stop crying. The prisoner slapped her a number of times causing her to release and relax herself. The prisoner slept on top of the victim and forcefully penetrated her.

4. The victim said in her statement that while the prisoner was having sex with her she felt a lot of pain. After the prisoner had ejaculated, he got up and walked into his room. After he had gone out, the victim went outside and urinated. She felt that her vagina was very painful. I would form an inference that the victim was a virgin by then.

5. In the morning, the victim woke up and went to the plantation where she continued to cry. He mother came to where the victim was and asked her if anything went wrong. The victim told her mother about the story of what the prisoner did to her the night before. The mother comforted the victim and told her that, she was to talk to the prisoner with the view to discourage their father.

6. Despite the mother raising the issue with the prisoner, he made light of what his wife was saying. It is clear from the statement of the victim and her mother, that the prisoner is a very violent person. The mother Rosemary Matatenge confirmed the victim’s statement that, from 4 December 2003 to 11 August 2006, the prisoner continuously slept with the victim using her as his wife by having sexual intercourse with her persistently between the above periods.

7. At times when she came home for week-ends and school holidays, the prisoner was so possessive of the victim such that he would not allow her to talk to her school mates or even her close relatives. He even stopped her from attending community gatherings and whenever she did not abide by the prisoner’s wish, the victim was usually bashed up very badly. After completion of Grade 8 at the village Primary School, she attended OLS High School Vunapope. Every week-end she comes home, the prisoner treated her like his wife. He persistently had sexual intercourse with her.

8. Whenever, Rosemary raised the issue with the prisoner, he would bash his wife up. It is clear from the facts tendered that, the prisoner is a very violent person. He bashes his wife up for little mistakes. As to how the matter came into light, the victim went to attend a customary celebration, when she came home the prisoner bitterly beat her and even strangled her by her neck. He swore at her and beat her again and again. The victim could not stand the prisoner’s behaviour, she reported the matter to the Sexual Abuse Squad office at Ralum, Kokopo Police Station.

ADDRESSES

9. I heard the prisoner on allocutus and counsels’ addresses on sentence on 8th and 12th of this month respectively. The prisoner said, he is sorry for what he did to his daughter. He said sorry to his community and to the State. He requested the court to consider his previous good character. Mr. Moses of counsel for the prisoner submitted for the court to take into account the prisoner’s guilty plea to the two charges. He submitted that the appropriate penalty should be considered in light of the sentencing trend on incest cases. Mr. Moses cited some cases on which cases prosecution had been brought under the hold section. He also cited some cases where offenders have been prosecuted under the new amended Act, the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

10. For the State, Mr. Done submitted that, the court should consider the prevalent nature of this crime right throughout the country and more particularly in this Province. He submitted that these types of offences are committed not only against the victim but against the whole community. He submitted that such evil practice is perverting the communities and the courts must do their parts to sentence offenders to terms of imprisonment that will deter the offenders and the likely would be offenders.

LAW

11. The prisoner pleaded guilty to two separate counts of incest with his daughter A. M. on the dates written on the body of the indictment namely 4 December 2003 and 11 August 2006. Under s.223 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, the prisoner could be sent to goal to the maximum term of 7 years each for the two offences.

Relationship

12. The victim in this case is the biological daughter of the prisoner. She comes from a family of three brothers and three sisters. She is the first born in the family. The prisoner and his family come from Vunadidir village on the Gazelle District in the Toma Local Level Government. The prisoner comes from Tanaka village but lives with his wife in Vunadidir. He is married to Rosemary who is the mother of the victim. All siblings in the family are school age children. The prisoner and his wife have 7 siblings out of their marriage.

13. For purposes of this short discussion, the law defines the term "incest" in s.223 (2) in the following terms:

"For the purposes of this section, a close blood relative means a parent, son, daughter, sibling (including a half brother or half sister), grandparent, grandchild, aunt, uncle, niece, nephew or first cousin, being such a family member from birth and not from marriage or adoption."

14. There are very serious aggravations on the offence of incest. First there was the abuse of trust, authority and dependency. Under s.229E of the Act, where a person engages in an act of sexual touching or sexual penetration with a child between 16 and 18 years, with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime and the maximum penalty provided under that Section is 15 years imprisonment.

15. The victim in the instant case was age 17 years by last August. Walking back the track from 2006 down to 2003 as to when the prisoner started to sexually molest and abuse his daughter, the victim at that time was less then 16 years in fact she might have been between 13 to 14 years.

16. Before the Parliament passed the law on sexual offences now contained in the Criminal Code (Sexual Offences and Crimes Against Children Act) 2002, Brunton, AJ; said in The State v Sottie Apusa [1988-89] PNGLR 170 that incest cases involves aggravations of severe kind where His Honour said at 172:

"There are other relationships of trust which in my view constitute circumstances of aggravation in these cases. For example, within the medical profession, the relationship between doctor, paramedic, nurse and patient. It is within this broad category of trust and dependency that offences committed by "step-fathers" or "uncles" should fall, for a relationship between a step-father or "uncle" and a young girl may be one of complete confidence and love – and to break that bond sexually may not only subject the victim to psychological damage, but is a betrayal, a form of personal treason".

17. The above statement became a reality in 2002 when the Parliament legislated for the breach of trust relationship between persons related and unrelated and other offences committed against children and the women folks. A part from the definition of the phrase "close blood relative" provided in Subsection (2) of Section 223, two other Sections talk about the trust relationship between the actors of sexual penetration. For instance, Section 6A of the Act states:

"(1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where –

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant’s grandparent, aunt, uncle, sibling (including step-sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counselor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care or control."

18. I note here that, the abuse of trust, authority or dependency is an offence by itself which is punishable by 15 years imprisonment under s.229E of the Act. That Section states:

(1) "A person who engages in an act of sexual penetration or sexual touching of a child between the age 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.

(2) It is not a defence of a charge under this section that the child consented unless, at the time of the alleged offence, the accused believed on reasonable grounds that the child was aged 18 years or older"

19. The fact that two different Sections of the Act make references to breach of trust (s.6A and s.229E) with the earlier Section defining the relationship of trust and the later provision creating for a separate offence, this court can only infer that, the Parliament’s intention was that sexual penetration between fathers, mothers and their off-springs and close relatives must be regarded by the courts as very serious.

20. The next aggravation is that the prisoner sexually abused the victim for a period of over three and a half years. It was lucky the victim did not get pregnant. Persistent sexual abuse of a child is an offence under s.229D (6) is punishable by life imprisonment, subject to s.19 of the Criminal Code. The prisoner was living and sleeping with his daughter as his wife. He had intentionally chosen to live in his own room away from his wife to make way for the victim so he could further his evil and unlawful intentions. The case of The State v David Duna Burua (6.7.06) CRN0.829 of 2005 is the case on point where the prisoner was charged under s.229D (1) and (6) of the Act and he was sentenced to 20 years. The above proviso states:

"(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 the crime of persistent abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a tern not exceeding 15 years.

(2) For purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(c) the court must be satisfied beyond reasonable doubt, that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and

(d) the court must be so satisfied about the material facts of the two incidents, although the court need not be satisfied about the dates or the order of those occasions.

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and liable, subject to Section 19, to life imprisonment."

21. The next aggravation in this case is there was and is a very big age difference between the victim and the prisoner. The accused in this case is about 54 years while the victim was age 15 at the time the matter was reported to the police. She must have been around 11 years or 12 when the accused started to sexually abuse her by sexual touching followed by sexual penetration. According to the case of The State v Mitige Nehehia [1988-89] PNGLR 174 where there is a substantial age difference, it is an aggravation. I adopt the principles stated in the above case and apply them to the circumstances of this case and I must reiterate that, the breach of trust in this case is very severe indeed because, the prisoner is the biological father of the victim.

22. To illustrate the serious nature of the offence of sexual offences, I now refer to some National Court cases by other judges and just noting that, sentences have gone very high because of perhaps the prevalence of this crime as well as the seriousness of the offence of incest. In The State v Thomas Angup (2005) CR.N0.414 of 2005 a case in this Province, the accused was sentenced to 20 years for sexual penetration of an under age girl. In The State v John Ritsi Kutetoa (2005) N2814, the accused was sentenced to 17 years. In the case of The State v Peter Lare (2004) N2557, the prisoner was sentenced to 20 years for sexual penetration aggravated by physical violence. In The State v Tiama Esrom (13.4.06) CR.254 of 2006, the prisoner was sentenced to 12 years for one act of sexual penetration of his grand daughter, (see also The State v Penias Moke (2004) N2635).

23. The prisoner in the present case abused his daughter for almost four years. I am persuaded by Mr. Done’s submission that, the court needs to give effect to the policy behind the new law, which is to treat sexual offenders against children more seriously and severely. Such submission accords with common sense and contemporary values and concerns prevailing at this time just a little after the new legislation came into effect in April 2003. Sexual abuse of children in this country is very common. The law protects children as much as adults.

24. Breach of trust is of the most severe kind. Particularly when it occurs between parents and children, brothers and sisters, and the extended family as defined by s.6A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, see also s.229E. (See The State v Mitige Neheya [1988-89] PNGLR. 174 & The State v Sottie Apusa [1988-89] PNGLR. 170

25. The court takes into account the accuser’s guilty pleas to the two charges. Mr. Moses of counsel for the accused urges the court to take into account his client’s plea and his co-operation with the police when he was interrogated. Certainly, the accused guilty pleas to these serious charges had saved the State time and expenses. The accused himself had gained favour by pleading guilty. Yes it could also be said that, he is not a youth and he should have been wiser than he was at the time he committed these offences against his own daughter. I will take into account such pleas on sentence.

26. I have considered the sentencing guidelines set out in The State v Penias Mokei (No.2) 2004 N2635 by Cannings, J. I consider the fact that, the trend of persistent abuse continued for almost four years making it one of the worse of its kind. As I said in The State v Thomas Tukaliu CR.N0.910 of 2005 unreported judgments and decision of 22 February 2006, the worst type of abuse of underage female victims is the type that occurs within the family circle, extended family unit or within the family itself. There is the element of betrayal of trust that a victim may repose on an accused such as in the circumstances of this case because of the very closely related family bond or ties as is very common right throughout this nation.

27. In the past, sentences for incest cases have been very high because the old provision provided for maximum term of life imprisonment. With common sense and logic, that penalty provision was good law and I think it reflected well on the community’s perspective on how much penalty should be meted out against perpetrators of incest. A case on point where the father was sentenced to life imprisonment in Alotau was in The State v James Donald Keimou (12.10.01). N2299. In The State v Amos Audada (13.5.03) N2454 an incest between father and daughter. He was sentenced to 10 years. In The State v Eddie Sam (2004) N2521 the prisoner was convicted after a trial on 9 counts of alternative charges of incest against his own daughter. This court sentenced him to 17 years imprisonment. All those cases were brought pursuant to the old incest provision.

28. It could be argued that incest being of its very serious nature, involving breach of trust between the lines of genealogies defined by s.223 (2), and special provisions for the definition of breach of trust and the creation of a separate offence for such breach as in s.6A and 229E of the Act, the maximum penalty of 7 years should be applied to offences of incest with aggravations. Kandakasi, J. took that view in The State v Francis Angosiwen (21.6.04) N2670 where His Honour imposed the maximum penalty of 7 years. That is the maximum

29 I beg to differ from that approach because the principle of sentencing laid down by the Supreme Court in Goli Golu v The State [1979] PNGLR.653 and John Elipa Kalabus v The State [1988] PNGLR.193 is that, the maximum penalty should be reserved for the most serious instance of offences encountered in practice. The above principles were developed for wilful murder cases and any other homicide cases only. I cannot see any reasons why such consideration should not be applied to sexual offences. I have the view that perhaps the degree and magnitude of violence experienced in homicide cases is more severe than sexual offences such as in a rape or an incest case because, the victim in any homicide case is now dead. Unless the victim in a sexual case is dead, then the normal sentencing guidelines for homicide case should be applied. Whereas the victim in a sexual offence is still alive and for that reason, penalties for sexual offences should not be as high as those for homicide cases and they should not be equated with the principles stated by the Supreme Court in Goli Golu v The State or John Elipa Kalabus v The State (supra).

30. To illustrate on the point I made earlier, let the court look at the recent sentencing trend for homicide cases suggested by the Supreme Court in the case of Manu Kovi v The State (31.5.05) SC 789. For the lowest form of homicide being manslaughter, the victim of which has lost his or her life. There are four categories for manslaughter alone. For cases with no aggravations and ordinary mitigations, an offender could be sentenced a term of years between 7 to 12 years.

31. The second tariff with the range of sentences between 13 to 16 years imprisonment for cases with mitigating factors and aggravations. The next tariff ranges from 17 to 25 years for cases with serious aggravations. The last category for manslaughter places those cases which are very serious involving vicious, pre-planning and complete disregard for human life should be sentenced to life imprisonment. I have noted that in the very recent past that, some sentences for sexual cases have been very high which I think should not be the case for reasons that the victims in all sexual cases are still alive and happy unless affected by HIV/AIDS or unless such victim’s have been raped and killed or abducted and raped as in the Supreme Court case of Ian Napoleon Setep v The State (18.5.01) SC666.

32. Despite the above observation, it may also be argued that, sexual offences and more particularly rape and incest cases can also be a cause for social upheavals and discontent as they can destroy family and community ties and it may result in very serious conflicts between family members.

33. I have considered the prisoner’s guilty plea to the two charges and his statement on allocutus. I have considered counsels addresses on sentence and the Pre-Sentence report filed pursuant to this Court’s direction. The pre-sentence report states that, the prisoner may be a suitable candidate for placement on probation. However the report suggests that due to the serious nature of the offence, a custodial sentence should be considered. The medical report that was tendered dated 29th of last month does not belong to the prisoner. It belongs to his wife. I have no obligation to consider a report that does not have any bearing on the health of the prisoner himself.

34. I take note of the comments by Mr. Paul Baldium and Mrs. Rosemary Baldium who are members of the Child Abuse Committee, a committee that was sat up in 2004 to look into family related problems, each said that, the offence of incest and other sexual cases are causing great concern in this Province. The above two were amongst the three persons contacted by the Probation Officer about their views on the offences committed by the accused. The other person contacted was the accused’s wife.

35. Before the prisoner is sentenced, I remind myself about the totality principle which requires that when a decision is made to make two or more sentences consecutive, I must see that a total is just and appropriate: Public Prosecutor v Terrance Kaveku [1977] PNGLR.110, see also Mase v The State [1991] PNGLR.88. I have considered options of imposing concurrent or consecutive sentences. I must make sure that, if the court decides to order consecutive sentences, the total must be fair and reasonable in all the circumstances of the two charges.

36. I have decided against imposing concurrent sentences since the prisoner here is charged with two counts of incest bringing his case under the definition of s.229D of the Criminal Code (Sexual Offences and Crimes Against Children) Act.

37. Not only that there was persistent abuse, but the prisoner’s cases involve breach of trust, and there was force and intimidation applied to the victim in getting her to submit to him for sexual purpose. In the circumstances of the instant case, the Court is of the view that the prisoner should be sentence to a term of 6 years imprisonment for each count making a total of 12 years imprisonment in hard labour. The custody period shall be deducted from the head sentence. The prisoner’s bail money in the sum of K200.00 shall be refunded to him.

____________________

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused.