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State v Mavuug [2012] PGNC 255; N4898 (22 November 2012)

N4898

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 651 0F 2012

THE STATE

V

SALI KEVIN MAVUUG

Madang: Cannings J
2012: 22 October, 7, 15, 22 November

CRIMINAL LAW – sentencing – Criminal Code, Section 229D, persistent sexual abuse of a child – guilty plea – relevance of payment of compensation – relevance of expressed desire of victims and their mother to see offender given suspended sentence

An adult male offender pleaded guilty to two counts of persistent sexual abuse of a child, contrary to Section 229D of the Criminal Code. The victims were his step-daughters, "A" and "B". The abuse was committed over a period of two years, three months in the family home when the victims were 11 to 13 years old (count 1, victim A) and 10 to 12 years old (count 2, victim B) and was constituted by three instances of sexual penetration (count 1, victim A) and 12 instances of sexual penetration (count 1, victim B) respectively. The offender paid K10,000.00 compensation of his own volition prior to sentencing and was prepared to pay another K3,000.00 and formally reconcile with the victims and their mother (his wife) in the event that he received a suspended sentence. Both the victims and their mother are prepared to accept further compensation and reconcile with the offender and expressed the desire not to see the offender imprisoned.

Held:

(1) When sentencing an offender for multiple offences, the court should arrive at a notional sentence for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the total sentence.

(2) The following notional sentences were imposed: count 1: 12 years; count 2: 18 years. The total potential sentence is 12 + 18 = 30 years imprisonment.

(3) The sentences should be served cumulatively as there were two different victims. However under the totality principle the court should avoid imposing a crushing sentence, so the total sentence was reduced to 14 years imprisonment, less the pre-sentence period in custody of one week.

(4) The substantial compensation already paid by the offender and his preparedness to pay further compensation to and reconcile with the victims and their willingness to accept his good intentions and their express desire not to see him imprisoned were significant considerations supporting a suspended sentence but ultimately the gravity of the crimes and the tender age of the victims (and doubts about whether at their age they are able to appreciate the gravity of the crimes) and the deterrent function of sentencing weighed against a fully suspended sentence. None of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State (2006) SC890
The State v Ereman Kepas (2007) N3192
The State v Henry Kilta CR No 148 of 2012, 17.07.12
The State v Joe Mui CR No 1495 of 2010, 23.01.12
The State v Kikia Solowet CR No 196 of 2006, 24.08.07
The State v Richard Koginmo CR No 147 of 2012, 18.07.12
The State v Steven Makai (2010) N3914

SENTENCE

This was a judgment on sentence for two counts of sexual abuse of two children.

Counsel

J Morog, for the State
S Tanei, for the offender

22 November, 2012

1. CANNINGS J: This is the decision on sentence for Sali Kevin Mavuug who pleaded guilty to two counts of persistent sexual abuse of a child, contrary to Sections 229D(1) and (6) of the Criminal Code in circumstances of aggravation. The offender was in his late 40s at the time of committing the offences. The children, the victims, are his stepdaughters, which gives rise to a circumstance of aggravation in each case as there was a relationship of trust, authority or dependency between the offender and the child by virtue of Section 6A(2)(a) of the Criminal Code. The offences were committed over a period of two years, three months, from January 2009 to March 2011, in the family home on various occasions when the victims' biological mother (the offender's wife) and other family members were absent. The abuse stopped when the mother became suspicious and questioned her daughters and despite initial reluctance they revealed what had been happening and the matters were reported to the police. The age of the victims and other details are set out in the following table.

ANTECEDENTS

2. The offender has no prior conviction.

ALLOCUTUS

3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I apologise to the two girls and their mother for what I have done. I give my word to this court that I will not do such a thing again.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). I take into account that he has paid K10,000.00 compensation of his own volition.

PRE-SENTENCE REPORT

5. The offender comes from a village in the North Coast area. He is 50 years old. He has been married to the victims' mother for 14 years. His parents are deceased. He has two brothers and three sisters and family relationships are strong and stable. He is a qualified motor mechanic and has had regular employment as a mechanic since 1976 and is still employed by a company in Madang. His health is sound. He wants to continue working and rebuild his relationship with his wife and the victims. Payment of the K10,000.00 compensation to his wife took place in December 2011. He was able to afford this substantial sum by virtue of contributions by members of his family including a daughter, son and nephew. The victims and their mother are seeking further compensation of K3,000.00 and he is willing and able to afford that too, and wants to arrange a formal reconciliation ceremony. The victims and their mother rely on the offender for financial support and a place to live. They have expressed their desire not to see the offender imprisoned.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Tanei highlighted as mitigating factors the guilty plea, the absence of prior convictions, the expression of remorse, the payment of compensation, the absence of physical violence, the offender acted alone, the absence of sexually transmitted disease and that there has been no further trouble caused to the victims. A total sentence of no more than 16 years, all or part of which should be suspended, would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Morog opposed the proposal of a suspended sentence and submitted that a lengthy custodial term was called for, highlighting the large age gap between the offender and the victims, the serious breach of trust, the long period over which the abuse continued and the fact that it only stopped when he was caught. The victims were sexually abused by their own father and the damage he has caused will very likely remain with them for the rest of their lives. A sentence of 16 to 20 years is warranted.

DECISION MAKING PROCESS

8. As the offender is being sentenced for more than one offence it is necessary to first determine a notional sentence for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the total sentence. The following decision-making process will be applied:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point for each offence?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The sentencing regime under Section 229D (persistent sexual abuse of a child) of the Criminal Code distinguishes between:

• persistent sexual abuse under Section 229D(1) (consisting of commission of two or more child sex offences other than sexual penetration) for which the maximum penalty is 15 years imprisonment; and
  
• persistent sexual abuse under Section 229D(6) (consisting of commission of two or more child sex offences, at least one of which involved an act of penetration) for which the maximum penalty is life imprisonment.
  

10. In the present case the offender was convicted under Section 229D(6). The maximum sentence is thus life imprisonment. However, the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. The Supreme Court is yet to give detailed sentencing guidelines for this sort of offence but given that the maximum penalty is life imprisonment I consider a starting point of 20 years imprisonment would be appropriate.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

12. I refer to six cases involving the offence of persistent sexual abuse:

• The State v Ereman Kepas (2007) N3192. The offender was a 60-year-old man and the victim his ten-year old adopted daughter. The abuse consisted of five instances of sexual touching and one instance of penetration of the girl's vagina with his penis, which resulted in the girl suffering physical injuries and being hospitalised. I regarded the offender's guilty plea and advanced age and his poor medical condition as major mitigating factors and sentenced him to 12 years.
  
• The State v Kikia Solowet CR No 196 of 2006, 24.08.07. The offender was a 58-year-old man and the child a nine-year-old girl, his niece, who was living in the family home. The abuse consisted of three separate incidents of digital penetration of the victim's vagina. Mitigating factors were that it was a case of digital, not penile, penetration, the offender had caused no further trouble to the victim, he was a first-time offender and his advanced age and poor medical condition. He received a sentence of 10 years.
  
• The State v Steven Makai (2010) N3914. The offender was convicted after a trial of one count of persistent sexual abuse of a child, contrary to Section 229D(1) of the Criminal Code, in circumstances of aggravation. The offender was a man aged 30 years. The abuse was constituted by three occasions of sexual penetration committed over a 19-month period when the girl was aged nine or ten. She is his sister-in-law. The sentence was 20 years.
  
• The State v Joe Mui CR No 1495 of 2010, 23.01.12. The offender pleaded guilty to the crime of persistent sexual abuse of a child and been convicted of that offence under Sections 229D(1) and (6) of the Criminal Code. The victim is his niece, who was 15 years old when the offence – which was constituted by seven separate instances of sexual penetration – was committed over a two-week period from 16 to 30 September 2009. The offender was 23 years old at the time and the incidents took place within the family home where they were both living. The offender was the victim's uncle (the brother of her father). He was in a relationship of trust, authority or dependency (uncle/niece) by virtue of Section 6A(2)(c) of the Criminal Code. The sentence was 12 years.
  
• The State v Henry Kilta CR No 148 of 2012, 17.07.12. The offender was in his mid 30s at the time. The child, his adopted daughter, was 15 years old when the offence – which was constituted by two separate instances of sexual penetration – was committed over a two-month period in November/December 2010. The abuse took place within the family home where they were both living. The offender is the victim's uncle (the husband of her biological mother's sister). The victim came from East Sepik Province to live with the offender and his wife in 2007 and became an adopted daughter. She was doing grade 8 at the time. The sentence was 8 years.
  
• The State v Richard Koginmo CR No 147 of 2012, 18.07.12. The offender was in his mid 20s at the time. The child, his neighbour, was 14 years old and in grade 6 when the offence – which was constituted by four separate instances of sexual penetration – was committed over an 11-day period. The offender had a close relationship with the victim's family, the victim's father was a pastor and the offender was a member of their church. The sentence was 10 years.
  

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

13. Each offence will be assessed separately.

Count 1: victim A

14. I refer to the list of sentencing considerations set out in The State v Kikia Solowet CR No 196 of 2006, 24.08.07 and highlight the following mitigating and aggravating factors.

15. Mitigating factors:

• the offender acted alone;
• he used no weapon or aggravated violence;
• he has caused no further trouble to the victim;
• he is a first-time offender;
• he has paid substantial compensation;
• he has pleaded guilty;
• it is an early guilty plea (he was committed for trial on 13 August 2012 and the plea was entered on 22 October 2012);
• the victim and her mother want him shown leniency.
  

16. Aggravating factors:

• extremely severe breach of trust: the offender abused one of the most sacred of all human relationships, that of a father to his daughter;
• the victim was a very young girl.
  

17. Given the number and strength of the mitigating factors there is strong justification for sentencing below the starting point of 20 years. The offender must be given credit for his early guilty plea and the payment of compensation, which are signs of genuine remorse and acceptance of responsibility for his actions. However, this remains an extremely serious case. Having compared the facts of this offence with those referred to in the precedents cited above, the appropriate sentence is 12 years imprisonment.

Count 2: victim B

18. This is a significantly more serious offence than in the case of victim A as the victim was only 10 years of age when the abuse started, and by the end of the period of abuse she was still very young, being 12 years old. There were also significantly more instances of abuse, making this a shocking case in which a young girl's life has, it must be presumed, been permanently damaged. The appropriate sentence is 18 years imprisonment.

Total potential sentence

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

19. The general rule is that if two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88). Here, there were multiple incidents of abuse and two victims. The sentences must be served cumulatively.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

20. It is now necessary to look at the total sentence that the offender is facing to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. This is called the totality principle. The court must guard against imposing crushing sentences (Acting Public Prosecutor v Konis Haha [1981] PNGLR 205). The court must also be alert to the attitude and sentiments of the victims. Sentencing a 50-year-old man to a 30-year sentence may well condemn him to life, and death, in prison. I am not convinced that he does not deserve such a sentence. However I consider that in all the circumstances it would be a crushing sentence, and in light of the express wish of the victims and their mother not to see the offender spend a long time in custody, the total sentence is reduced to 14 years imprisonment, apportioned as 6 years in respect of count 1 and 8 years for count 2.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

21. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment, the whole of the pre-sentence period which is one week.

STEP 8: SHOULD THE SENTENCE BE SUSPENDED?

22. The pre-sentence report is generally favourable. It is unusual for such a shocking case of sexual abuse to be accompanied by an express desire on the part of the victims not to see the offender imprisoned. How should the court deal with that express desire?

23. On the one hand it seems natural to give effect to it, as the courts often say on sentencing an offender that the most important person to be considered is the victim. The offender has already paid substantial compensation and he is prepared to pay more and the victims and their mother are prepared to accept it. On the other hand these are extremely serious crimes and the court must be conscious of the message it will send to the community if it allows suspended sentences for such crimes. Perhaps people will think that those who commit such wicked crimes will be able to fix the problems that they have created by buying their way out of jail: 'Pay enough compensation and you can avoid prison'. That would clearly not be the message that we want conveyed. It would not provide much deterrence to this sort of behaviour which the entire PNG community is gravely concerned about. The other thing the court must be conscious of is how genuine the sentiments of the victims are. They are still only young girls. Are they really able to comprehend what has happened to them? Do they appreciate the gravity of the crimes their father has committed against them? Or are these things that they will only fully comprehend in their later teenage years or early adulthood?

24. The court has already given credit to the offender for the payment of substantial compensation and his preparedness to pay more. However, ultimately he must pay with his liberty for his atrocious crimes and his children need to be protected against the risk that he will reoffend. None of the sentence will be suspended.

SENTENCE

25. Sali Kevin Mavuug, having been convicted of two counts of persistent sexual abuse of a child under Section 229D(1) of the Criminal Code in circumstances of aggravation under Section 229D(6) of the Criminal Code, is sentenced as follows:

Sentenced accordingly.

__________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender