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State v Hela [2012] PGNC 228; N4788 (31 August 2012)

N4788

PAPUANEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO 1474 OF 2010

THE STATE

V

BERNARD SOEKA HELA

Waigani: Maliku AJ
2012: 14th, 23rd, 31st August

CRIMINAL LAW - Sexual penetration – Section 229 A (1) of Criminal Code Act –Multiple sexual penetration

CRIMINAL LAW - Sentence on guilty plea- Accused is first offender – Multiple sexual penetrations - Prevalence of sexual offences - Appropriate sentence for first offender- Sentences decided on its own peculiar facts – Sentence served cumulatively or concurrently

Cases cited:

Rex Lialu v The State [1990] PNGLR
Goli Golu v The State [1979] PNGLR
Avia Aihi v The State (NO3 [1982] PNGLR 92

Counsel:

Mr. J Apo, for the State
Ms Julie Pora, for the accused

31 August, 2012

1. MALIKU AJ: Prisoner Bernard Soeka Hela was convicted of four counts of sexual penetration of one John Horou, contrary to Section 229A (3) of the Criminal Code (Sexual Offences and Crimes against Children) Act which I had set out below:

Count one:

BERNARD SOEKA HELA of MOVEAVE VILLAGE, MALALUA, GULF PROVINCE stands charged that he BERNARD SOEKA HELA on the 27th of May 2010 at Horse Camp, Sabama in the National Capital District in Papua New Guinea, sexually penetrated, JOHN HOROU, a child below the age of sixteen years, namely twelve years old, by inserting his penis into the child's mouth.

AND at that time there was an existing relationship of trust, authority and dependency between the said BERNARD SOEKA HELA and the child JOHN HOROU in that BERNARD SOEKA HELA is an uncle of the said JOHN HOROU thereby contravening Section 229A (3) of the Criminal Code (Sexual Offences and Crimes against Children) Act.

Count Two:

BERNARD SOEKA HELA of MOVEAVE VILLAGE, MALALUA, GULF PROVINCE stands charged that he BERNARD SOEKA HELA on the 27th of May 2010 at Horse Camp, Sabama in the National Capital District in Papua New Guinea, sexually penetrated, JOHN HOROU, a child below the age of sixteen years, namely twelve years old, by inserting his penis into the child's anus.

AND at that time there was an existing relationship of trust, authority and dependency between the said BERNARD SOEKA HELA and the child JOHN HOROU in that BERNARD SOEKA HELA is an uncle of the said JOHN HOROU thereby contravening Section 229A (3) of the Criminal Code (Sexual Offences and Crimes against Children) Act.

Count Three:

BERNARD SOEKA HELA of MOVEAVE VILLAGE, MALALUA, GULF PROVINCE stands charged that he BERNARD SOEKA HELA on the 27th of May 2010 at Horse Camp, Sabama in the National Capital District in Papua New Guinea, sexually penetrated, JOHN HOROU, a child below the age of sixteen years, namely twelve years old, by inserting his penis into the child's mouth.

AND at that time there was an existing relationship of trust, authority and dependency between the said BERNARD SOEKA HELA and the child JOHN HOROU in that BERNARD SOEKA HELA is an uncle of the said JOHN HOROU thereby contravening Section 229A (3) of the Criminal Code (Sexual Offences and Crimes against Children) Act.

Count Four:

BERNARD SOEKA HELA of MOVEAVE VILLAGE, MALALUA, GULF PROVINCE stands charged that he BERNARD SOEKA HELA on the 27th of May 2010 at Horse Camp, Sabama in the National Capital District in Papua New Guinea, sexually penetrated, JOHN HOROU, a child below the age of sixteen years, namely twelve years old, by inserting his penis into the child's anus.

AND at that time there was an existing relationship of trust, authority and dependency between the said BERNARD SOEKA HELA and the child JOHN HOROU in that BERNARD SOEKA HELA is an uncle of the said JOHN HOROU thereby contravening Section 229A (3) of the Criminal Code (Sexual Offences and Crimes against Children) Act.

Plea

2. The prisoner having the benefit of a legal counsel pleaded guilty to four (4) counts of sexual penetrations of one John Horou.

Antecedent/Personal Particulars:

➢ Prisoner has no prior convictions.

➢ Prisoner is from Moveava village, East Kerema, Gulf Province.

➢ He is 45 years old.

➢ He is married and has two children aged 2years old and the other is 4 months old.

➢ Member of the Catholic Church.

➢ Highest education reached is Grade 10 at Malalua Secondary School.

➢ Was employed with Graham Dan Ace Company where he earned K400 per fortnight at the time he committed the offence.

➢ Was at other time employed by Morobe Fletcher as a Tiler and Block/Brick layer and earned K 390.00 until he was convicted of this offence.

Allocutus

3. In his address on his allocutus to the Court the prisoner said:

• I would like to apologise to the court, victim and the victim's family.
  
• I ask for pardon from this court because the victim's family had agreed to settle the matter outside of court and K300 had been paid already as compensation, which the victim's family had accepted. They had agreed to have the matter withdrawn from this court so it can be settled in the community.
  
• I have a young family and a newly adopted 2 years and 4 months old baby.
  
• My wife has had two major medical operations and will find it hard to take care of our adopted baby should I go to jail.
  
• I was brought up in a poor family and lived in Port Moresby for 24 years and have never committed any serious offences such as this one.
  
• I have always looked after my family ever since I was able to as well as my wife's family and our other relatives from both sides.
  
• I would like to say sorry to the victim, victim's family and relatives
  
• I would also like to apologise to this Court for what I did to the victim.
  
• I ask for leniency from the Court.
  

The Mitigating factors

• Prisoner had a prior good character and was a law abiding citizen.
  
• Prisoner was educated up to Grade 10 at Malalaua Secondary High School.
  
• Prisoner is a member of the Catholic Church faith.
  
• Prisoner is a first time offender in sexual penetration offence.
  
• Prisoner did express remorse in his allocutus
  
• Some compensation was paid and accepted by victim's family.
  
• Prisoner co operated well with the police.
  
• An early plea by accused which saved court time and resources in running a trial.
  
• No prior convictions of this same offence and any other offences.
  
• It is not the worst category of sexual penetration cases.
  
• No dangerous weapons were used or excessive use of force.
  

Aggravating factors

• The State submits there existed a relationship of trust, authority and dependency between the prisoner and victim.
  
• Prisoner was an uncle to the victim.
  
• Prisoner used some force when taking the victim from the house to the beach and the nearby bushes.
  
• Substantial age difference between the prisoner and the victim.
  
• As demonstrated in the Victim Impact Statement there has been a significant impact on the child and the father.
  
• Prevalence of sexual penetration offences in the community.
  

The Laws on Sentence/Penalties

4. The prescribed maximum penalty for sexual penetration under Section 229A (1) is not exceeding twenty five (25) years imprisonment. 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.

Does this matter fall in the worst category of cases?

5. Having considered the facts of this matter, I am satisfied that it does not fall in the worst category of sexual penetration cases but it is an aggravated sexual penetration because it was committed by the accused to the victim who was under 16 years of age and there was an existing relationship of trust, authority and dependency between the prisoner and the victim.

Submission by the State

The appropriate sentence

6. The State submits that it is settled law that maximum prescribed penalties are reserved for the worst type of case - see Avia Aihi vs- The State [1982] PNGLR 44; Goli Golu –v- The State [1979] PNGLR 653; Ure Hane-v- The State [1984] PNGLR 105, Lawrence Simbe -v- The State [1994] PNGLR 38; it is also settled that each case is to be determined on its own peculiar facts when the Court is considering sentence: see Rex Lialu - v - The State [1990] PNGLR.

7. Mr Apo submits that the Courts have wide discretion under Section 19 of the Criminal Code Act to substitute a penalty other than that which is provided for under the Criminal Code Act. The discretion turns on the peculiar facts and circumstances of each case.

8. I agree with State's submission on the law, that the Courts have wide discretion under Section 19 of the Criminal Code to substitute the prescribed maximum penalty for an offence the prisoner is convicted of with anyone of the penalties prescribed under Section 19 of the Criminal Code.

9. In further support of the State's submission on the appropriate sentence for the prisoner Mr Apo cited a number of case authorities. The first case cited is State-v- Esrom (2006) N3054. This is a case where a grandfather of between 50 and 60 years old pleaded guilty to sexual penetration, the victim being his nine (9) year old granddaughter. He was sentenced to twelve (12) years imprisonment with two years suspended on condition that the prisoner keeps the peace for a period of ten (10) years. The aggravating factors in this case are:

❖ Child victim was below the age of twelve years.

In the present case the child victim was twelve years old at the time he was sexually penetrated by the accused.

❖ Relationship of trust, authority and dependency.

In the present case the child victim is a nephew of the prisoner thus there being a breach of relationship, trust, authority and dependency by the prisoner.

❖ Substantial age different between the prisoner and the victim.

10. In the present case the child victim was under sixteen (16) years old, namely 12 years of age at the time he was sexually penetrated while the prisoner was 45 years old, a difference of thirty three (33) years. This is certainly a substantial age difference.

11. The second case which the State relied on its submission on the issue of appropriate sentence for the prisoner is the case of State-v- Okole (2006) N3053 per Lenalia J. This is a case where the prisoner pleaded guilty to two counts of sexual penetration, in circumstances of abuse of trust, authority and dependency of a child under the age of 12 years old.

12. The abuse began even before the victim attained 12 years. The prisoner was sentenced to eight (8) years and nine (9) years respectively for each count of the sexual penetration which were ordered to be served consecutively.

13. On the third count the prisoner was sentenced to five years imprisonment in hard labour to be served concurrently with the first and second counts. He was sentenced to a total of fifteen (15) years in prison after two years were suspended.

14. In sentencing the prisoner in the above case of The State v Esrom (supra) the Court take into account the following aggravating factors:

❖ The child victim was below 12 years of age.

❖ Relationship of trust, authority and dependence was breached

❖ Substantial age difference of accused and victim.

❖ Physical violence on the child

❖ Restricting the child from attending College after she had been selected to attend College.

❖ The child victim was eventually pregnant.

15. The third case cited by the State counsel is State-v- Dabu (2008) N3313 per Kandakasi J. This is a case where a little girl was looking for a dog. She turned around to leave when the prisoner approached her and asked her to stay.

16. He then asked the little girl to have oral sex with him. The prisoner put his penis into her mouth which she then sucked. The prisoner was sentenced to six (6) years less the pre trial custodial period. The prisoner served the remaining five (5) years, seven months, one week in prison.

17. This matter is similar to the present case as regards to the manner sexual penetration was done; that is the prisoner put his penis into the victim's mouth which was sucked by the victim.

Submission by Defence

18. Counsel for the prisoner submits that the Court should take into account the very fact the prisoner had pleaded guilty to all four (4) counts which undoubtedly be argued to have saved the Court's time and resources to conduct a trial.

19. Counsel for the prisoner also submits on the discretion that this Court has under Section 19 of the Criminal Code and referred to the recent Supreme Court decision in the case of Stanley Sabiu-v- The State (2007) SC 866.

20. This was an appeal against a sentence of 17 years imprisonment imposed on the appellant after he had pleaded guilty to sexually penetrating a child under the age of 12 years contrary to Section 229A (2) of the Criminal Code.

21. The appeal was however dismissed as the Court found no identifiable error on law, or fact and the sentence was not out of proportion. The Court however stated, inter alia, that: "the general principle of sentencing provides that the maximum sentence is reserved for the worst cases...." I re iterate that this principle is well settled in our criminal jurisdiction.

22. The Court then went on to state the prescribed maximum penalties for sexually penetrating a child under the age of 16 as being 25 years imprisonment and for sexually penetrating a child under the age of 12 is life imprisonment.

23. Their honours were of the view that the sexual penetration of children should be severely punished and sexual penetration of children under the age of 12years is the more serious, hence the larger maximum penalty. Their honours then stated the starting point in a case involving a 12 years old victim to be 15 years imprisonment.

24. In the case of The State-v- Biason Samson (2005) N2799, Cannings J determined the starting point in a case involving a 13 years old victim at15 years imprisonment.

25. Bearing that in mind I think the starting point of a case involving under16 years of age child victim is 12 years imprisonment.

26. The consideration that Cannings J referred to were those that were stated in the case of The State v Pennias Mokei (No.2) (2004) N2635 and were reaffirmed in the case of Stanley v The State (2007) SC 866. Counsel for the prisoner urges this Court to adopt this consideration.

27. I agree that the relevant consideration should be the same, irrespective of whether the offence is sexual touching or sexual penetration. However, the range of penalties available is however narrower in the case of sexual touching than it is in the case of sexual penetration. Counsel for the prisoner had outlined the relevant factors for consideration by this Court in the following:

• What was the age difference between the prisoner and the victim in the present case?
  
• Was the victim far under the age of 16 years?
  
• Was there consent by the victim?
  
• Was the prisoner alone in committing the offence?
  
• Did the prisoner use threats, dangerous weapons?
  
• Were injuries sustained by the victim?
  
• Was there a relationship in existence between the prisoner and the victim?
  
• Was it an isolated incident?
  
• Did the prisoner surrender himself to the police after the commission of the offence?
  
• Did the prisoner co operate with the police?
  
• Did the prisoner pay any compensation to the victim?
  
• Did the prisoner cause any further trouble to the victim or relatives?
  

28. Besides the above factors, Counsel for the prisoner referred the Court to a number of cases which she submits lay down guidelines on appropriate sentences in sexual penetration offences

29. The first case is The State-v- Penias Mokei (No.2) N2635. This is a case where Cannings J sentenced a 33 year old prisoner, an uncle of the victim who was 13 years of age to 15 years. There was a breach of trust, authority and dependency but no aggravated physical violence alleged.
It seems to me that three factors that influenced the Judge's decision in imposing 15 years of imprisonment on the prisoner in this case are:

• The relationship between the prisoner and the victim, being one of an uncle.
  
• The age difference between the prisoner and the victim of 20 years.
  
• The breach of trust by the prisoner.
  

30. Be that to be the factors that influenced the sentence imposed by his honour, I consider the sentence imposed was appropriate.

31. The second case referred to by Counsel for the prisoner is The State –v- Eddie Trosty (2004) N268. This is a case where Kandakasi J sentenced a 21 year old prisoner to 6 years for committing the offence to his 15 years of age girlfriend who had consented to be sexually penetrated on several occasions. The sentence imposed on this case appears to reflect the age difference between the prisoner and the victim which was six years at the time the offence was committed and the consent by the victim. See Saperus Yalibakut –v- The State ( 2006) SC 890.

32. The third case which Counsel for the prisoner referred to is The State-v- Kemai Lumou (2004) N2684 by Kandakasi J. This is a case where the 22 years of age prisoner was sentenced to 17 years imprisonment for sexually penetrating his niece. The prisoner threatened the victim with a bush knife to achieve his intention. The prisoner pleaded not guilty to committing the offence but was subsequently found guilty and convicted. The sexual penetration resulted in the sexual transmitted disease being transmitted to the victim. The factors that influenced the Court in sentencing the prisoner were:

✓ The relationship between the prisoner and the victim being the victim was the prisoner's niece.

✓ The breach of trust by the prisoner

✓ The use of threat

✓ The use of a dangerous weapon, a knife.

✓ The transmission of sexual transmitted disease onto the victim by the prisoner. In my view the sentence imposed was appropriate given the trauma the victim had gone through after being diagnosed for sexual transmitted disease.

33. The fourth case referred to by Counsel for the prisoner is The State-v- George Taunde (2005) N2807 by Canning J. This is a case whereby a 33 year old prisoner was sentenced to 10 years imprisonment for sexually penetrating a victim of 13 years of age. No weapon was used and no aggravated physical injuries sustained by victim. The factors which influenced the Court in sentencing the prisoner to 10 years are:

➢ The relationship between the prisoner and the victim, uncle and niece relationship.

➢ The age difference of 20 years between the prisoner and the victim.

➢ The lack of consent being a matter for consideration in sentencing.

➢ No weapons used, nor threats applied on the victim.

➢ No aggravated physical violence on to the victim.

34. In my view having assessed the above, because there existed a very close relationship between the prisoner and the victim and the prisoner having breached that relationship of trust, the sentence imposed by the Court was called for.

35. The fifth case referred to by Counsel for the prisoner is The State-v- Titus Soumi (2005) N2809 Canning J. This is a case where a 30 year old prisoner was sentenced to 2 years imprisonment for sexual penetration of his wife's sister. The victim was 14 years of age at the time she was sexually penetrated. There were no weapons used. No threat was used. The relationship between the prisoner and the victim was not close. There was no relationship of trust except for the victim being a sister in law. In the absence of the above the Court imposed a very lenient sentence of 2 years imprisonment.

36. The seventh case referred by Counsel for the prisoner is The State-v-John Ritsi (2005) N 2949 Canning J. This is a case where a 39 year old prisoner was sentenced to 17 years imprisonment for sexually penetrating a 10 year old victim. There were injuries sustained by the victim. There was a breach of trust. Undoubted the Court considered this matter very serious and imposed the sentence of 17 years of imprisonment even though no weapon was used.

37. The eighth case referred to by Counsel for the accused is The State-v-N'drakum Pu'uh (2005) N 2949 per Canning J. This is a case where the prisoner was sentenced to 4 years imprisonment with hard labour for sexually penetrating a 12 year old victim who was his niece.

38. The prisoner was 34-38 years of age at the time he committed the offence. The prisoner pleaded guilty and was a first time offender, he apologized to the victim and relatives and co operated with the police. Despite the aggravating factors the Court imposed a sentence of 4 years imprisonment considered appropriate for the prisoner in this case.

The sentence range

39. I note that from the three cases, the State's Counsel had referred this Court to were heard between 2005 and 2008 and the sentences imposed range from six (6) years imprisonment to 15 years imprisonment. No prescribed maximum penalties were imposed by the Court.

40. I note also from the eight (8) cases the Counsel for the prisoner had referred this Court to, that they were heard in 2004 and 2005 and the sentences imposed range from two (2) years to 17 years imprisonment. No prescribed maximum penalty was imposed by the Court. It is obvious that sentences to be imposed on each prisoner was done so on each case's peculiar facts or circumstance.

41. Sexual touching offences were specifically enacted to protect the group of persons under section 299A of the Criminal Code (Sexual Offences and Crimes against Children) Act 2002 together with the prescribed maximum penalties. These persons are children under 12 years of age to under16 years of age.

42. In the present case the prescribed maximum penalty is imprisonment of twelve (12) years which in my view reflects the seriousness of such an offence given the fact that there was existed a relationship of trust, authority and dependency between the prisoner and the victim, breached by the prisoner when he committed the offence.

43. Nevertheless there are mitigating factors put before this Court that the prisoner clings on for leniency from the Court and to be considered by the Court in order to arrive on a sentence appropriate to the prisoner.

44. Sexual touching offences have been committed with or without violence and are prevalent in the community and are on the rise. Many children have become victims of sexual touching and this includes the victim of this matter.

45. In the present case the prisoner was not a stranger to the victim but well known to the victim and undoubtedly there was indeed an existing relationship between the prisoner and the victim of being that the prisoner is an uncle to the victim. The accused did not appreciate such a relationship but instead chose to sexually penetrate the victim.

46. I agree with his honour Canning J in the recent case of State-v-Penias Mokei (No 2) N2635 where he says: "If relationship between the accused and the victim is very close then the most serious breach of trust, authority and dependency it becomes and the higher the penalty should be." The relationship between the prisoner and the victim in the present case is not a close one as in the case of Alois Dick (supra). I am mindful of the fact that each case as regard to sentencing is to be decided on its own peculiar circumstances.

47. Having said earlier that this present case does not fall in the worst category of sexual penetration it does not call for the maximum sentence however the Court has discretion under Section 19 of the Code taking into account the aggravating and mitigating factors presented before it.

48. What then is the appropriate sentence for the prisoner in the present case? In considering the appropriate sentence for the prisoner I adopt the course in the cases of State v Esrom (2006) N3054, and State v Okole (2006) N3052 by Lenalia J. They are relevant and preferable to the present case.

49. The facts before me show that the charges which the prisoner was convicted of arose from one set of facts or one transaction. I am mindful of the case of Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 and State v Sottie Apusa by his honour Brunton J cited by defence where the issue of totality principle was dealt with.

50. I have considered the principle of one transaction as well as the principle of sentences in totality at length. I consider the following sentences on each count to be appropriate sentences for the prisoner.

Count One. The prisoner is sentenced to 18 years in hard labour.

Count Two. The prisoner is sentenced to 18 years in hard labour.

Count Three: The prisoner is sentenced to 18 years in hard labour.

Count Four: The prisoner is sentenced to 18 years in hard labour.

51. I order that count 2, count 3 and 4 are to be served concurrently to count one (1). I suspend two years on condition that the prisoner shall be of good behaviour bond for three years after he had served his sentence. The prisoner shall pay to the victim a compensation of K1500.00 under Criminal Law (Compensation) Act within three months from this date. The prisoner shall serve the balance less pre trial custodial period (if any). The prisoner's bail shall be refunded forthwith.

____________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused