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State v Tutuvo [2011] PGNC 117; N4400 (9 September 2011)

N4400

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1420 OF 2010

STATE

V

DANNY TUTUVO
Accused

Goroka: Ipang AJ
2011: 18, 25th August & 9th September

CRIMINAL LAW – Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002 – s.229 D (1) & (6) Persistent sexual abuses of a female child aged 9 years and under 12 years four different incidents of persistent sexual abuses – 2 incidents of finger penetrations and 2 incidents of penile penetrations – Breach of existing trust – offender age 55 years and victim 9 years old – huge age gap.

CRIMINAL LAW – Sexual penetration resulted in infliction of sexual transmitted disease – Gonnorrhea (Gonuccocal Infection) to the child victim –causing child to have fever and been traumatized – infliction of STD is in fact an harm caused within an harm and is a double blow for the victim – harm demeans the status of the victim as a child.

CRIMINAL LAW – Sentence – Mitigating factors considered against aggravating factors – Pre-Sentence Report (PSR) and Means assessment Report (MAR) considered. Prisoner indicated that he will not pay compensation.

Cases Cited

State v Peter Lare (2004) N2557
State v JB (2007) N3224
State v Eremas Kepas [2007] PGNC 77 (N3192)
State v Steven Siname (2009) N3908
Maima v Sma [1972] PNGLR 49
Sabiu v State [2007] SC866
State v Biason Benson (2005) N2799

Counsel

Mrs. Kuvi & Ms B.Gore, for the State

Mr. R. Kasito, for the Accused

DECISION ON SENTENCE

9th September, 2011

1. IPANG AJ: This is the decision on sentence for the prisoner Danny Tutuvo who initially pleaded not guilty to one count of persistent sexual abuse of a child under the age of 12 years contrary to s.229 D (1) & (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002. A trial was conducted and on the 18th of August, 2011. I found him guilty and entered a conviction against the offender.
   

Brief Facts

2. The facts of this case as I found are these. There were four (4) incidents of sexual abuses.
   
   1. That on an unknown date between the 1st of February, 2010 and 28th of February 2010, the victim had returned from school and she was doing dishes outside her house. The prisoner approached the victim and pulled her to the side of the victim's house and pushed his finger in to her vagina.
      
   2. On the second occasion that was between 1st February, 2010 and the 28th July, 2010 the prisoner pulled the victim to the side of the victim's house and pushed his finger in to her vagina.
      
   3. On the third incident, that was between 1st of February, 2010 and the 28th of July, 2010 the prisoner pulled the victim to his house and inserted his penis into the victim's vagina;
      
   4. The fourth incident took place on an unknown date between the 1st February, 2010 and 31st July,2011. While the parents of the victim were at the Goroka main market, the prisoner took the victim to his house. He made her stand against the wall and he sexually penetrated her by inserting his penis in to her vagina. After he ejaculated he sent her away and told her not to report him to her parents.
      

Allocutus

3. In administering his allocutus, this was what the prisoner said.
   

"I say thank you to God. I have only one wife and have 5 children from my wife. My wife died in 2008. I have coffee garden. I have a fenced garden. Who will look after these properties? I am an old man. Who will look after my family? I still have a daughter and a son in school."

4. The court ordered Pre- Sentence Report (PSR) and the Means Assessment Report (MAR) provided the following report.
   
5. The community leaders, church Pastors from PNG Bible Church and SDA church spoke favorable of the prisoner. They said he is quiet and peaceful person who has respect in the community. They said he is a committed Christian. Prior to the commission of this offence, they said he was a good person who always mind his own business and had never been in conflict with the law. The leader's also said prior to the offence; there was no difference(s) between the victim, victim's parents and the prisoner. They have lived peacefully and had supported each other.
   
6. The relative of the prisoner and the family of the victim did not discuss any matters relating to compensation. Since the detention of the prisoners. The community leaders suggested that compensation should be considered as this will restore peace and further strengthen the family relation as the incident happened within family ties. However, the Means Assessment Report (MAR) revealed that the offender does not have any means of cash income. There was also evidence that the prisoner had always struggled to find money to support himself and his last born son. The prisoner also pointed out that he did not do any wrong to the victim so he would not pay any compensation.
   
7. The victim's parents were of the view that they do not want compensation. They said the matter is now before the court so let the court to decide.
   

LAW

8. The Law on the offence of persistent sexual abuse and its penalty is as follows:
   
   229. Persistent Sexual abuse of a child
        
   • (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 od 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 occasion 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.

Submission by Defense Counsel

9. Defense submitted that the following are mitigateing factors for the prisoner; he is a first time offender, he is of an old age, he has physical disability on his right hand and offensive weapons were not used. Also the following were submitted as aggravating factors, huge age gap difference inflicting of sexually transmitted infection and the sexual abuse occurred on more than one occasion. Defence concluded that the mitigating factors have equaled out the aggravating factors.
   
10. Finally, the defence submitted that the court should consider the lower end of the starting point or range of 12 -16 years based on the facts that the prisoner is of an old age and he has physical disability with his right arm. Defence ruled on the Pre-sentence Report which pointed out this physical disability. Furthermore, defence submitted that whether there is a relationship of trust, dependence and authority is an issue because defence says victim calls him "bubu" just because they live close to each other. Defence says the evidence show that the prisoner followed victim's grandfather (Susie Gahare's father) to six (6) mile. So, defence submitted that prisoner is not a blood –related bubu to the victim.
    

Submission by State

11. State submitted that though the prisoner is a first time offender, the matter was a trial matter and the victim was called to gave evidence and had to give her story in front of the strangers. State went to submit that the prisoner is in a position of trust as he is like a grandfather to the victim as the victim calls him "Bubu Danny." State also submitted that there is a huge age gap difference in that the prisoner was 55 years old and the victim was 9 years old at the time the offence was committed. And, finally the State emphasized that the victim contracted sexually transmitted diseases namely gonorrhea from the incident. State submitted that a prison term of 25 years or more would be appropriate.
    

What then would be the appropriate starting head sentence?

12. In order to determine an appropriate head sentence for the prisoner, I will consider similar or relevant case laws or previously decided cases. Then I will take in to account the mitigating factors and the aggravating factors, the Pre-Sentence Report (PSR) and the Means Assessment Report (MAR) in to consideration.
    
13. In State v Erema Kepas [2007] PGNC 77 (N3192) the offender pleaded guilty to persistent sexual abuse of his adopted daughter. There were five instances of sexual touching, constituted by rubbing his penis on the girls vagina and ejaculating and one instance of sexually penetrating her. The offender was aged 60 years old at the time the offence was committed and the victim was 10 years old. In the Kepas Case (supra) the court considered the mitigating factors and the aggravating factors and held that in a case of persistent sexual penetration plus other instances of sexual touching the court should apply a starting point of 25 years imprisonment.
    
14. In the case of State v JB [2007] PGNC 66 (N3224), the offender pleaded guilty to two (2) counts of persistent sexual abuse contrary to s.229 D of the Criminal Code Act, (as amended). The particulars of the offence were that (i) he sexually penetrated his 17 year old daughter on two (2) occasions in a period of six (6) weeks and (ii) he sexually penetrated his 15 year old daughter on two occasions commencing at the time when his daughter was 13 years & 9 months and over a period of one (1) year & 10 months and infecting her with sexually transmitted disease. On the first count of persistently sexually abusing his 17 year old daughter, the offender was sentenced to 10 years imprisonment. On the second count of persistently sexually abusing his 15 years old daughter, the offender was sentenced to 16 years imprisonement. Imprisonment sentence were served cumulatively as the offences involved different victims. A total of 26 years imprisonment was imposed and totality principle taken in to account, the sentence was reduced to 20 years.
    
15. The State v Steven Siname (2009) N3908, the offender pleaded guilty to three (3) counts of persistently sexually abusing the victim, his biological sister age 15 years at that time. The court imposed a cumulative sentence of 28 for three (3) counts less pre –sentence period in custody. The court then suspended 5 years on conditions that after serving the balance, the offender shall keep peace for 2 years from the date of release.
    
16. It is the general principal of sentencing that the maximum sentence is reserved for the worst case. See Maima v Sma [1972] PNGLR 49 as stated in Sibiu v State [2007] SC866. So the maximum sentence for sexually penetrating a child under age of 12 years is subject to s.19 Criminal Code Act, life imprisonment. In Sabiu's case, the Supreme Court expressed that, "In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that the sexual penetration of children under the age of 12 years is more serious, hence the larger maximum penalty."
    
17. The Supreme Court in the same Sabiu's case was of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The considering the circumstances of the case, any aggravating and mitigating factors should be taken in to account in determining whether the actual sentence to be imposed in a particular case should be more or les than 15 years imprisonment.
    
18. In State v Biason Benson (2005) N2799, Canning, J listed number of guideline that should be considered and I adopt them here:
    
    • (a) Is there only a small age difference between the offender and the victim?
    • (b) Is the victim not far under the age of 16 years?
    • (c) Was there consent?
    • (d) Was there only one offender?
    • (e) Did the offender use a threatening weapon and not use aggravated physical violence?
    • (f) Did the offender cause physical injury and pass on a sexually transmitted disease to the victim?
    • (g) Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?
    • (h) Was it an isolated incident?
    • (i) Did the offender give himself up after the incident?
    • (j) Did the offender cooperate with the police in their investigation?
    • (k) Has the offender done anything tangible towards repairing his wrong such as offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did?
    • (l) Has the offender cause further trouble to the victim or the victim's family since the incident?
    • (m) Has the offender pleaded guilty?
    • (n) Has the offender genuinely expressed remorse?
    • (o) Is this his first offence?
    • (p) Can the offender be regarded as a youthful offender or are his personal circumstance such that they should mitigate the sentence?
    • (q) Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
      

Sentence In Your Case

19. Bearing the above in mind, I now proceed to consider an appropriate sentence for you. For that purpose I take note of what you said in allocutus and that of your lawyer's address to sentence. You were concerned about your son and your garden etc.

20. To that your lawyer added that you are a widower in your 60's and your wife died in 2008. You're a member of the SDA Church. You are an illiterate person and live a subsistence lifestyle. You're also a first time offender with no prior convictions.

21. I have noted the Pre-Sentence Report and the Means Assessment Report presented to Court. The Report spoke favourably of you as a peaceful person, always minding your own business. I have also noted from these two (2) reports that you don't have means to pay compensation. It was also your intention not to pay compensation even when your community leaders spoke favourably, compensation would repair the wrong you have committed.

22. In aggravation, I find you're 55 years old and the victim was 9 years old at the time the offence was committed. The offence was committed on four (4) occasions. You passed on the sexually transmitted disease gonorrhea to the victim resulting in her been very sick and was taken to the hospital and she received medical treatment. You have not expressed remorse and were concerned about yourself. You have no regard for the victim.

23. You have been charged under s. 229D (1) & (6) of the Criminal Code (Sexual Offence and Crimes Against Children) Act, 2002 which subject to section 19, calls for life imprisonment. However, as in your case, I consider your age and the fact that you did not share a real grandfather and granddaughter relationship but of course there exist to some extent a relationship of trust. I consider s. 19 of the Criminal Code Act (amended) and am of the view a sentence lower than 20 years is appropriate for you.

24. Accordingly, I impose a custodial sentence of 18 years for you. I order deduction of 1 year, 6 days being the pre-trial and pre-sentence period you have spent in custody. That will leave you with the balance of 16 years, 11 months, 24 days. I order that you serve the balance of 16 years, 11 months and 24 days at Bihute Correctional Service. A warrant of commitment will be issued in those terms.
____________________________________
Acting Public Prosecutor: Lawyer for the State

Paraka Lawyers: Lawyer for the Accused