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State v Nawa (No 2) [2009] PGNC 115; N3732 (29 July 2009)

N3732

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.612 OF 2007

THE STATE

V

CHRIS NAWA (NO.2)

Buka: Lenalia, J.
2009: 24th, 28th & 29th July

CRIMINAL LAW – Sexual penetration – Under aged girl – Sentence after finding of guilty – Criminal Code (Sexual Offences and Crimes Against Children) Act s.229A (1) –

CRIMINAL LAW – Sexual penetration – Principles of sentencing in sexual penetration case of under aged girls – Deterrent sentence called for – Factors for consideration – Substantial age difference – Accused aged 41 while victim was 14 years at time of offence.

Cases cited.

The State v Peter Lare (2004) N2557
The State v Thomas Angup (21.4.05) N2830
The State v Paul Nelson (25.5.05) N2844
The State v Thomas Tokaliu (22.2.06) N3026
The State v Kaminiel Ocala (18.4.06) N3052
The State v Mathias Tiamani (25.5.09) Cr.No.923 of 2008

Counsel:

C. Sambua, for the State
E. Latu, for the Accused

29th July, 2009

1. LENALIA, J: The prisoner was found guilty of one count of sexual penetration of the victim (JB) under the age of 16 years. She was aged 14 years on the year the offence was committed. For purposes of protecting the interest and future standing of this young lady, I will only refer to her as JB. Sexual penetration of girls under the age of 16 or 12 years is prohibited by s.229A (1) & (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act.

2. For purposes of the following discussion, I quote the above section including subsection (3) which provides for the maximum penalty in cases aggravated by any existing relationship of trust, authority or dependency as defined by s.6A (1) and (2) of the Act. Section 229A (1) (2) and (3) states:

"(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."

3. For purposes of sentence, I just wish to recapitulate on the evidence on which the prisoner was found guilty. On 10th November 2006 at Wakunai beach, Autonomous Region of Bougainville, after the school closed at 12.30 pm, the prisoner allured the two girls who were witnesses on the trial of this case to accompany him to Teokon village. He had spoken to the two of them a number of times before they left the school and even at the beach. He had even sent two different male students with messages to the victim asking if he could accompany her to Teokon village.

4. When he came to the beach where most of the students were swimming in the river with the victim and Delphine Vane (the second witness), he inquired again which track they were going to go through. The victim suggested that they were to follow the main road. The prisoner suggested that they should take the short cut together with him because he wanted to see the school treasurer.

5. After convincing the two girls, the victim’s girl friend Delphine Vane led the way, followed by the accused and the victim was the last person. After walking several hundred metres from the beach and with the feeling that something was to happen to her, JB without telling her friend and the accused made a U-turn and ran back toward the beach. The evidence by Delphine and the accused say that, JB informed them that she was to return to the beach to pick something.

6. When she reached the beach, she stood and looked around not knowing that the accused had caught up with her. He came and stood a couple of metres away from her and asked her to walk up to him. At first the victim was quite reluctant to do as the accused ordered. The victim said, when she did not move, the accused shouted at her and ordered her to come close to him.

7. She obeyed and the two of them walked a few metres into the bushes and there the accused asked her to remove her clothes. When she was naked, he asked her to lie down on the ground. He kneeled down and commenced to push his fingers in and out the victim’s vagina a number of times. JB said, this was done to enlarge the orifice.

8. She said, the accused then laid on top her and tried to sexually penetrate her. When he tried to push his penis into her vagina, he could not penetrate her. He tried the second time, he could not succeed. He tried the third time and it was when he penetrated her. According to JB when the accused reached orgasm, he withdrew his penis out of her vagina and ejaculated on the ground. He told her to get dress, he also got dressed and they walked away into different directions. In the case of JB she walked up the same track and reached the river where her friend was swimming waiting for them. A few minutes latter the accused came up and gave them a piece of paper to give to the school treasurer.

Addresses on sentence

9. When allocutus was administered, the prisoner said he is sorry to the State, his family and his colleague teachers in the school where he was teaching when the allegations arose against him. He said, he has served the nation as a teacher for 27 years. Part of his statement was made about his family whom he has dedicatedly served for the period of his marriage life.

10. He comes from a religion with very strict religious beliefs and would like to say sorry to the fellow church members. Antecedents on the file as well as on the submission by Mr. Latu of counsel for the prisoner show that, the prisoner is a member of the Papua New Guinea Christian Life Centre. He even stated that, despite the court finding him guilty, he maintains his innocence but he accepts the court decision. He asked the court to be lenient with him on sentence.

Defence address on sentence

11. On sentence. Mr. Latu asked that the court should consider the background antecedents of the prisoner. He is now currently teaching at Kieta Primary School. He is the Headmaster of that school. He is married and has 7 children. The oldest child from the present marriage is 21 years with the youngest about 3 years. The pre-sentence report shows that, his family is living in Buin and he is alone in the above school teaching.

12. Counsel submitted that the court should consider the prisoner has served the nation in the teaching profession for 27 years. He is currently teaching and has great responsibility of paying school fees for his children attending various educational institutions. Mr. Latu quoted case law authorities to support his submission for a lenient penalty and some rape cases which do not have any direct application to the nature of the present case.

Prosecution address on sentence

13. Mr. Sambua of counsel for the State addressed the court on the serious nature of the crime of sexual penetration of under aged girls. He cited cases in support of his submission that, the offence of sexual penetration of under age girls is very serious. A serious aspect of Mr. Sumbua’s address relates to the breach of trust which the prisoner committed upon the victim who was his pupil at the time he had sex with her.

Law

14. The accused is charged with the crime of sexual penetration against s.229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. As the prisoner heard at the introduction of this judgment, the court said, the maximum penalty provided for the above offence is 25 years imprisonment but if it is committed with aggravation as defined by s.6A (2) (d) of the Act, an imprisonment term of life is available for such cases.

15. Sexual abuse of our young children in this country is very prevalent. Very young girls are being abused at early ages as was the case in the instant case. A child at the age of 14 years is a child of very tender age and is not capable of having sexual relations with anyone. The courts look at these kinds of abuses to be very serious. There are many forms of child abuse such as physical, mental, emotional and sexual abuse. The law on sexual offences was designed to protect children against sexual abuse.

16. The prisoner’s case was a one off incident. However it was aggravated by two factors. First, the age of the victim was under 16 years. The law protects children and particularly the under aged ones because they are weak and incapable of deciding on what is the difference between good and evil. This is the reason why the new law on sexual offences is very specific.

17. I say specific in the sense that, for instance, if someone is charged for rape, that is because, the victim did not consent to have sex with the man. In the case of sexual penetration of under age children, the element of consent is not an issue. That is to say, as in the present case, even if there was consent on the part of JB as the evidence seems to show, but that is quite irrelevant because s.229A (1) of the Act states that anyone "who engages in an act of sexual penetration with a child under the age of 16 years is" automatically guilty of a crime.

18. The evidence on the trial reveals that, there was a very big gap age difference between the victim and the prisoner. In The State v Mitige Neheya [1988-89] PNGLR.174 it was said that where there is a substantial age difference, it is an aggravation. I adopt the principles stated in that case and apply them to the circumstances of the present. This was a serious case of abuse of a pupil being a school student of the school where the prisoner was teaching. The victim at the time of the commission of this offence was aged 14 years while the prisoner was over 40 years.

19. The second aggravation is that, when the prisoner committed this offence against his pupil, he breached the existing relationship of trust, authority and dependency because the prisoner was a teacher and not only was he teaching but he was the Headmaster of the Wakunai Primary School at the time he committed this crime. Subsection (3) of s.229A of the Act states:

"(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."

20. The definition under s.6A (2) of the above Act also applies in the case of the prisoner. It states:

"(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." (Emphasis added)

21. The definition section that is s.1 of the Criminal Code defines the phrase circumstances of aggravation in the following words:

"circumstatnces of aggravation" "includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance."

22. The prisoner’s case falls under the above definition. He committed the crime although a one off incident, and although it may have been a consensual act, he is liable to a greater punishment than one where he would have been liable if circumstances of aggravation were not present.

24. In fact the prisoner could be sentenced today to life imprisonment according to s.229A (3) of the Act. The public must be aware that there is a law protecting the young children, girls and boys, the young women and the mothers alike.

25. On the trend of sentencing in sexual penetration of girls under the age of 16 years, sentences vary from case to case depending on the nature of each case. In The State v Thomas Angup (21.4.05) N2830 where the prisoner was charged with various counts of sexual penetration and sexual touching of an under age girl. He was convicted on his plea. The victim was age 12 and the prisoner was 34 years. It was a case involving breach of trust. Lay J, sentenced the prisoner to 20 years imprisonment.

26. In The State v Esrom Tiama (13 April 2006) N3054, the prisoner pleaded guilty to one count of sexual penetration under s.229A (1) aggravated by an existing relationship of trust, dependency and authority. The victim was only 9 years, the accused must have been 50 years. He was sentenced by this court to 12 years. Two years were suspended with condition to be placed on good behaviour bond after service of the total sentence.

27. In The State v Kaminiel Okole (2006) N3052, this court sentenced the prisoner to a term of 17 consecutive years of imprisonment and another 5 years ordered to be served concurrently on the head sentence. The accused in that case was charged with two sexual penetration cases and one case involving breach of trust, authority and dependency.

28. In The State v John Ritsi Kutetoa (22.3.05) N 2814 a case here in Buka, Cannings J; sentence the offender to 17 years for a similar offence. The victim in that case was under the age of 12 years. That case was aggravated by a number of factors such as the age, very large age difference, and there was no consent from the victim. As well the offender caused physical injuries to the victim.

29. In an earlier case that of The State v Peter Lore (20.5.04) N2557 before Kandakasi J; the victim in that case was under the age of 12 years. It was the case of persistent sexual abuse and there was a very big age difference between the victim and the offender. He was sentenced to a term of 20 years imprisonment.

30. In The State v Eddie Trosty (20.5.04) N2681 a case in Lorengau, Manus Province before the same Judge, a sentence of 6 years was imposed for a similar offence. It was a case of consensual and persistent sexual penetration of a 15 year old victim. In that case the offender cooperated with the police during the record of interview. There was no aggravated physical violence. The offender pleaded guilty.

31. In Kokopo in the case of The State v Lesson David (25.7.06) CR.No.561 of 2005, the prisoner came upon the 10 year old victim who was doing family dishes in a water-hole in a nearby creek at Ranilo settlement on the outskirts of Kokopo town and penetrated her against her will. He pleaded guilty and it was a one-off incident. He was sentenced to 9 years imprisonment.

32. In The State v Waira Nason Tomar (9 October 2006) CR.No.534 of 2005 a case of two acts of sexual penetration of the victim under the age of 16 years. The victim was age 14 years at the time of the offence. On the 1st count, the offender in that case was sentenced to 4 years. For the 2nd count he was sentenced to 3 years. Sentences were ordered to be served consecutively making a total of 7 years. Sexual intercourse in that case was consensual.

33. In The State v Paul Wakara (19 September 2006) CR.No.914 0f 2006, the prisoner pleaded guilty to one count of sexual penetration of an under age victim as the one before this court now. It was sex without the will of the victim while her little brother was made to wait outside their house. Some force was used to push the 10 year old girl down to the floor and thereafter forceful sexual intercourse took place. Though no injuries were detected she was found to have a torn hymen. He was sentenced to 10 years because of the force used and the trauma caused to the victim.

34. Two other matters affect your case. First the prisoner in this case is a teacher by profession. Secondly, your case went by trial. According to the case of John Elipa Kalabus v The State [1988] PNGLR 193 at 197, where an accused makes an expression of remorse early after the commission of an offence, the more favourable it would be for the accused. But it was said that contrition and remorse expressed at the trial weighs very lightly. As stated in the above case, remorse and contrition are usually matters to be weighed on sentence in favour of an accused if they are manifested in a plea of guilty.

35. Recently a number of teachers have come before the courts for similar offences. In the case of The State v Camillus Parang (4 March 2008) CR Nos 549 & 693 both of 2004, the accused was charged for a number of sexual offences. He was the head/master of Nawunaram Primary School in Gazelle District, Rabaul. The State Prosecutor presented two indictments against him. The first indictment contained one count of indecent act laid pursuant to s.227 (1) (b) of the Criminal Code.

36. The second indictment contained three separate charges. The first two counts were similar in nature as the one above. The last count was one of rape under s.347 (1) (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. That was an extra ordinary case because it was sexual penetration by fingers (other than by the penis) in terms of the definition given in s.6 of the Act.

37. He was found guilty for the two charges of indecent acts. He was sentenced to 2 years consecutive sentences for the charges of indecent acts. Those sentences ordered to be served concurrently with a ten years sentence earlier imposed on him by Lay J, for sexual penetration of separate victims who were also under the age of 16 years.

38. In another case, which is that of The State v Hosea Morongo (25 April 2008) Cr.No 532 of 2005, the prisoner was convicted on his plea of guilty to two counts of incest with his own daughter. The offences were committed between January 2004 and January 2005. He was charged under s.223 (1) & (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. He was sentenced to consecutive sentences of 8 years.

39. Like any other offences, sexual offences are serious in nature as they infringe on the rights of women particularly if they are committed with force and violence and where as was in this case, the victim was aged 14 years. According to her mother’s Statutory Declaration dated the 4th February 2007, the victim was born on 30th March 1992. She was going toward her 15th birthday when she was sexually penetrated. At the time the offence was committed, the prisoner might have been 41 years; a very big age gap between JB and the prisoner.

40. The amendment to most of the sexual offences in the Criminal Code was aimed at protecting children against sexual exploitation and abuse. The people of Papua New Guinea had decided through their elected leaders in the National Parliament to change the law and express their abhorrence against this sort of conduct. The people have spoken through their leaders indicating that, Papua New Guinea cannot tolerate children being abused. It makes sense, that people must care and respect their children who will be future leaders of this country.

41. I said in The State v Thomas Tukaliu CR.N0.910 of 2005 unreported judgment and decision of 22nd of February 2006 that, 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 and if I may now add to that list, the breach of trust committed by a teacher toward his or her pupil like in this case. When parents send their children to school, they have a very high expectation for them and expect the teachers to care and look after them whilst out from parental custody during school hours.

42. In the circumstances of the instant case, there is an element of betrayal of the trust that the victim reposed on the prisoner not only because you are a teacher, but because you were the school headmaster. It is my view that a deterrent custodial sentence should be imposed. Considering counsels addresses on mitigations and aggravations and considering the terms of the pre-sentence report which does not have any input from the prisoner’s wife or people like the education authority of this Region, the prisoner stands alone in this case.

43. The prisoner is sentenced to a term of 8 years imprisonment. The court suspends 4 years from that sentence and you shall serve the balance of 4 years. Any time spent in custody shall be deducted from the period he is to serve. His bail money shall be refunded. The imprisonment term shall be served at Kerevat Jail.

______________

The Public Prosecutor: Lawyer for the State
Latu Lawyers: Lawyer for the Accused.