State v Paulo [2013] PGNC 112; N5286 (24 May 2013)

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CRIMINAL LAW – Sentence – Persistent sexual abuse of a child – Plea of Guilty – Biological father/daughter relationship – Sexual touching followed by sexual penetration – Abuse starts when child only 7 years and prisoner was 42 years old – Sexual penetration when prisoner was 11 years - Criminal Code Act Ch. 262 (as amended to date), ss. 229D (1) (6).

CRIMINAL LAW – Sentence –Factors in mitigation – Plea of guilty - First time offender - No force or violence used – Did not impregnate or infect complainant with sexually transmitted infection – Aggravating factors – Existence of relationship of trust, authority and dependency – Breach of – Huge age difference – Abuse over period of 4 years.

CRIMINAL LAW – Sentence – Purpose of sentence – Need for punitive and deterrent sentence – Separation of prisoner from victim – An important object in sexual offences against children – In best interest and welfare of child not to be exposed to abusive parent - A paramount consideration – Appropriate sentence – Sentence of 20 years less pre-sentence custody period – Suspension or probation inappropriate.

Goli Golu -v- The State [1979] PNGLR 653
The State -v- Pennias Mokei (No: 2) (2004) N2635
The State -v- George Taunde (2005) N2807
The State -v- Titus Soumi (2005) N2809
Saperius Yalibakut –v- The State (2006) SC 890 (27 April 2006)
Stanley Sabiu -v- The State (2007) SC866 (27 June 2007)
The State -v- Biason Benson Samson (2009) N2799
The State -v- Steven Siname (2009) N3908
The State -v- Kuyaps Toki Jonathan (2008) N3315
The State -v- Joe Mui, CR 1495 of 2010 (Unreported and un-numbered judgment)
The State -v- Danny Tutuvo (2011) N4400
The State -v- Ben Sakias (2011) N4238
The State v JB (2007) N3224
The State v Henry Matatenge (2007) N3218
The State v. Ereman Kepas (2007) N3192
The State v David Duna Arua, CR 829 of 2005(unreported and unpublished judgment)
The State v Robinson Togana CR 119 of 2010 (Unreported and unpublished judgment dated 06th April 2010)
The State v Martin Willie CR 541 of 2010 (Unreported and unpublished judgment dated 12th December 2012)
The State v Lucas Yovura (2003) N2366
The State v Steven Makai (2010) N3914
The State v Makis (2012) N4888

"BILLY PAULO of SAROA village, Central Province, [is] charge that between 1st February 1999 and 25th March 2010 at Sineada, ALOTAU, in Papua New Guinea engaged in an act of persistent sexual abuse of a child, namely Syana Paulo, who at the relevant time was under the age of 16 years

AND in the course of the sexual abuse, Billy Paulo on an unknown date between 01st February 1999 and 01st December 2002 touched Syana Paulo's vagina, a child under the age of 12 years with his fingers

AND in the course of the persistent sexual abuse, Billy Paulo on an unknown date between 1stJanuary 2003 and 1 December 2003 sexually penetrated Syana Paulo, who was then 11 years old by inserting his penis into her vagina.

3. The brief facts upon which I am going to sentence the prisoner are as follows. Between the 01st February 1999 and 25th of March 2010 the prisoner was living at Sineada Village with his family – wife and 3 children (2 boys and 1 girl (Syana – hereafter the victim)). During that time the prisoner engaged in acts of persistent sexual abuse against victim who was then under the age of 16 years.

4. The first act of persistent sexual abuse happened on an unknown date between the 1st of February 1999 and 1st December 2002 when the prisoner sexually touched victim's vagina. She was then under 12 years old – in fact merely 7 years old.

5. Then on an unknown date between 01st January 2003 and 01st December 2003 the prisoner sexually penetrated the victim by inserting his penis into her vagina when the victim was then only 11 years old.

6. I entered a plea of guilty only confirming it and convicting him after I had read the committal depositions and after satisfying myself the plea and the charge were supported.

7. The prisoner is 51 years old. He is originally from Saroa Village, Central Province but had been living with his wife and children at her village of Sineda in the Alotau District of Milne Bay province prior to his offence. The State did not allege any prior convictions.

8. On allocutus the prisoner read from a prepared statement. He basically confessed to the offence and apologised for failing his daughter. He said that he was not able to confess earlier in his Record of Interview because he was too ashamed and guilty for what he did to his daughter. He said that with God's help he wishes to re-establish and restore his relationship with his family through reconciliation and forgiveness.

9. He said that the victim is still his daughter and he, her father. He said the victim had been visiting him at the gaol, the last being a week before his arraignment on 02nd of March 2013. This he said brought him to realise that he needed to change and re-adjust his behaviour "to create restoration and prevent [his] family from disorder.

10. The prisoner took exception to what he said were disgusting statements in the depositions purportedly made by the victim but which were in fact made by the arresting officer herself. He said that these statements would damage and cause disorder in his family and is a denial of his daughter's rights. He believes that the victim did not willingly make such statements to the arresting officer.

11. He referred especially to a part of the statement where the victim purportedly says "My own dad has dragged my spirit and body down to a level fit for the devil himself." He said such a statement is a curse and is dehumanizing. He does not want to be dehumanized and become an enemy to his own daughter and family because he loves them. He pleaded on behalf of the victim for her human rights to be observed.

12. He said that he was guilty and was ashamed of what he did. He had also broken the law in his own society which he was supposed to observe and has disgraced his family as a result.

13. He promised not to re-offend. He said that he is a first time offender and had been in custody awaiting trial for 2 years 9 months and 22 days. He said that prison is not a good place and he does not want to be influenced by the criminal elements in there. He has a great obligation to his family to fulfil as a father to reconcile with his family and care for them. He finally pleaded for mercy and asked for probation.

14. Mr. Kalandi for the prisoner submitted that the prisoner had pleaded guilty to the offence. He did not initially admit his offence to the police because he was ashamed of his behaviour. He said that shame is an important consideration in traditional societies and therefore should be taken into account as an important mitigating factor. He said the prisoner is remorseful of his actions and desires to be reconciled with his family.

15. Counsel cited several couple of cases to the court which he said should provide some assistance in arriving at an appropriate sentence. These are: (1) The State v JB (2007) N3224 (Lay J.) where the prisoner pleaded guilty to two counts of persistent sexual abuse on two of her daughters then aged 13 and 15years. He was sentenced to cumulative sentences of 16 and 10 years respectively but these were reduced to 20 years based on the totality principle; (2) The State v Henry Matatenge (2007) N3218 (Lenalia J.), there the prisoner pleaded guilty to two counts of incest. He was sentenced to 12 years for each count to be served concurrently and (3) The State v. Ereman Kepas (2007) N3192, there the 60 year old prisoner pleaded guilty to persistently abusing his adopted daughter over a period of 4 months. The court (Canning J.) took into account the age of the prisoner and sentenced him to 12 years imprisonment.

16. Mr. Kalandi further submitted that the above cases involved multiple counts and victims and some of the victims were infected with sexually transmitted infections. Counsel said that this was not the case in the present case.

17. Counsel therefore said that an appropriate sentence should be between 8 – 12 years. The prisoner had been in custody for a period of 2 years 9 months and 2 days (at the time of submission – but now 2 years 11 months and 12 days) and this should be deducted from the head sentence.

18. Counsel finally submitted that the sentence should be either wholly or partially suspended given that the prisoner is now 51 years old.

19. Mr. Auka on the other hand submitted that Section 229D of the Code has come about due to Parliament's concern for the prevalence of sexual offences and abuse against children.

20. He said that probation is not appropriate in the circumstances and while the prisoner is now worried his family's welfare he ought to have thought about the consequences of his actions before he committed this offence.

21. Mr. Auka urged the Court to consider the maximum penalty reserved for this type of offence and that the offence involves an act of sexual penetration which thus attracts a sentence of life imprisonment.

22. He asked the court to take into account the large age difference between the prisoner and the victim. The prisoner was 49 years old while the child was only 7 years when the abuse started. There was an existing relationship of trust, authority and dependency that was breached by the prisoner. There are two types of sexual abuse involved – sexual penetration and sexual touching though the victim did not contract a Sexually Transmitted Infection. Finally the offence is becoming more and more prevalent. These, counsel said are factors that aggravated the offence.

23. Counsel cited a couple of cases. These are: (1) The State v David Duna Arua, CR 829 of 2005(unreported and unpublished judgment). There the prisoner pleaded guilty to persistent sexual abuse of his daughter and was sentenced to 20 years imprisonment; (2) The State v Robinson Togana CR 119 of 2010 (Unreported and unpublished judgment dated 06th April 2010). There the prisoner was imprisoned for 10 years for one count of persistent sexual abuse after a trial.

24. Mr. Auka urged the court to impose an appropriate punitive and deterrent sentence.

25. Counsel referred the court to several cases which attracted sentences between 2 – 14 years (The State -v- Biason Benson Samson (2009) N2799; State -v- George Taunde (2005) N2807; The State -v- Titus Soumi (2005) N2809. Counsel submitted that the circumstances of these cases have some similarities with this matter. I will return to this later on in this judgment.

26. The offence of persistent sexual abuse of a child is provided by Section 229D of the Code in the following terms –

(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 a crime of persistent sexual abuse of a child.

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

(6) If one of more of the occasions 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.

27. Parliament in its' wisdom has spoken very clearly when it comes to sexual abuse of children. Not only did it provide new and stiffer penalties for such abuse, but it also categorized the types of abuse and for circumstances of aggravation. It differentiated between singular or isolated acts of sexual abuse from repeated or persistent acts. Hence, under Section 229D while persistent sexual abuse which does not involve penetration carries a maximum of 15 years, where it involves an act of sexual penetration, the offender is liable to life imprisonment.

28. The law views the persistent sexual abuse of children as a very serious matter because of the emotional as well as physical trauma that such atrocious acts can have on children. The scars are ones that victims or survivors as we might call them will carry for life.(The State v Martin Willie CR 541 of 2010 (Unreported and unpublished judgment dated 12th December 2012)

29. Let me now briefly consider the sentencing trend for this offence over the recent past.

30. Below are a few cases which I have been able to locate which can give us an idea of what the sentencing trend for this kind of offence has been in the recent past.

No	CASE	PARTICULARS	SENTENCE
1	The State v Martin Willie CR 541 of 2010 (Unreported and unpublished judgment dated 12th December 2012) Toliken AJ.	Plea – one count of persistent abuse of 15 year old girl – First time offender – No force or violence used – Element of consent – victim not too far below age of consent – Victim did not fall pregnant or contract STI - Sexual penetration – Offence prevalent.	10 years less period in pre-sentence custody
2	The State -v- Danny Tutuve (2011) N4400; Ipang AJ.	Trial – one count of persistent sexual abuse – two separate occasions of penile penetration of 9 year old child by 55 years old prisoner – huge age difference.	18 years less pre-trial custody period.
3	The State -v- Ben Sakias (2011) N4238; Sawong J.	Plea – prisoner sexually penetrated niece on two different occasion – Prisoner 28 years old/ victim 14 years old – mitigating factors – Plea saved victim from giving evidence in court – expression at remove – unsophisticated village – first time offender – No violence – Aggravating factors – Breach of trust – victim became pregnant – Prevalence of offence.	12 years less pre-sentence custody period.
4	The State v Steven Makai (2010) N3914; Cannings J.	Persistent penetration of 9 year old girl by 30 year old man over 19 month period – Brother in-law/sister-in law relationship – offender acted alone, no use of weapons or aggravated violence – caused no further trouble – Huge age difference – tender age of victim – no consent – extreme breach of trust – no reconciliation or forgiveness – no remorse.	20 years less time in pre-trial custody.
5	The State -v- Joe Mui CR: 1495 of 2010; Cannings J.	Convicted of one count of persistent sexual abuse (penetration) of child - No particulars available to the court.	12 years less pre-sentence custody period.
6	The State -v- Steven Siname (2009) N3908; Lenalia J.	Plea – 3 counts of persistent sexual abuse (penetration) – biological brother/sister relationship – victim 15 years old – mitigating factor – plea of guilty, first time offender – no injuries – Aggravating factors – victim became pregnant - Not one after incident.	For count 1 & 2 = 28 years cumulative. Count 3 – 10 years concurrent. Total 28 years less time in pre trial custody.
7	The State -v- Kuyaps Toki Jonathan (2008) N3315; Kandakasi J	Plea- persistent sexual penetration of 13 years old girl – breach of trust – use of threats and force – victim become pregnant – no compensation – First time offender – Prevalent offence – Prisoner 22 years old.	18 years less period in pre-sentence custody period.
8	The State v Ereman Kepas (2007) N3192; Cannings J.	Plea – Five instances of sexual touching and one instance of sexual penetration – Prisoner 60 years old – victim 10 years old – father/step daughter relationship – Abuse over 4 months – Mitigating factors include guilty plea, nil priors, advanced age and medical condition – Aggravating factors include big age difference, no consent, tender age of child, breach of trust, physical violence and injury, no apology, no compensation, no genuine remorse.	12 years less pre-trial custody period.
9	The State v Makis (2012) N4888; Kawi J.	Plea – Two counts of persistent sexual abuse of daughter by biological father – Circumstance of aggravation alleged, i.e. use of weapon to threaten victim into submission – Breach of relationship of trust, authority and dependency	Count 1 – 14 years Count 2 – 13 years Total = 27 years to be served concurrently

31. The above sentences show clearly that this court has been prepared to go as high as 28 years for this type of offence.

32. The Supreme Court said in Stanley Sabui -v- The State (2007) SC 866 (Mogish, Manuhu, Hartshon JJ.) that Parliament had clearly spoken that sexual penetration of children should be severely punished and that the sexual penetration of children under 12 is more serious hence attracting the maximum penalty of life imprisonment. There the Supreme Court was dealing with an appeal against sentence for a conviction against S.229A of the Code.

33. However, what the court said there should apply with stronger force in cases of persistent sexual abuse under Section 229D (1) (6) of the Code. Parliament has indeed spoken very clearly that those who persistently sexually penetrate children must be visited upon by the same maximum penalty – life imprisonment. And more so where there is in existence a position of trust, authority and dependency.

34. The maximum sentence that can be imposed here is life imprisonment. However, it is well settled that the maximum penalty is always reserved for the worst category cases. (Goli Golu -v- The State [1979] PNGLR 653. And of course actual sentences depend very much on the peculiar circumstances of each case.

35. In sentencing offenders for sexual penetration of children generally, the Supreme Court in Stanley Sabui -v- The State (Supra) adopted and approved what Cannings J. considered in The State -v- Pennias Mokei (No: 2) (2004) N2635 and The State -v- Biason Benson Samson (2005) N2799 to be relevant factors. These are –

36. The circumstances enumerated above can be appropriately applied as either mitigating or aggravating the offence.

37. I must, however, firstly consider whether this case falls within the worst category. I must say without hesitation that it does fall frighteningly close to top when viewed objectively. It, however, does not warrant the maximum penalty of life imprisonment but a sentence should be substantial to say the least.

39. Firstly the mitigating factors. The prisoner is a first time offender. He did not use force or violence on both occasions nor did he cause any physical injuries to the victim. He did not impregnate her nor did he infect her with any sexually transmitted infection. He has expressed some remorse but I doubt if this was genuine.

40. On the other hand I take the following aggravating factors against him. He started abusing his daughter in 1999 when she was of the tender age of 7 years. The prisoner was 49 years old. There was therefore an age difference of 42 years. The abuse started with manual manipulation of the victim's vagina and as can be expected finally culminated in penile penetration by the end of 2003. Hence the abuse was perpetrated over a period of 4 years.

41. Furthermore there is in existence the closest of all relationships of trust, authority and dependency – that is of parent and child. And this offence is very prevalent. The prisoner has not made any meaningful attempts to reconcile with his immediate family and the extended family.

42. Counsel for the defence urged me to impose a sentence of between 8 – 12 years bearing in mind that the offender is now 51 years old and his other mitigating factors.

43. The prisoner himself pleaded to the court to give him probation so that he can reconcile with his family, seek forgiveness and take better care of them. He spoke of his great responsibility towards them and especially towards the victim. He seems to take comfort and encouragement by recent visits to him in gaol by the victim which if I can read him correctly would seem to suggest that she had forgiven him and is willing to reconcile with him.

44. Now it is all very well for the prisoner to think and even desire reconciliation and forgiveness from his family and the victim. This is, however, no longer a family matter that must be amicably sorted by the family.

45. The prisoner has broken the law and offended a time honoured customary norm too at that. In so doing he is guilty of serious moral culpability. He has defiled his daughter and has marred her future forever. He has breached a sacred trust that he owed to his only daughter. He violated her right to remain chaste. He used her as an object to gratify his sexual lust and appetite. He robbed her of her innocence and denied her of a healthy filial relationship that ought to have blossomed into a well of pure filial love.

46. The prisoner takes offence against being "demonized" and "dehumanised" by statements in the victim's statement to the police which he attributes to the arresting officer. This assertion was not negatived by the State and may very well have been the arresting officer's own words. In fact the language in the statement seems to be indeed beyond the proficiency of a 17 year old. I therefore apply any uncertainty over the authorship of that statement to the prisoner's favour. Saperius Yalibakut –v- The State (2006) SC 890 (27 April 2006).

47. This, however, does not detract from the fact that the prisoner abused his very young daughter over a period of 4 years. These were four long years in which she would have been totally confused about what she was being subjected to – having her tender body manipulated and penetrated not to mention the degradation she would have felt even at that tender age.

48. It is true that the prisoner did not occasion physical injuries on the victim and that he did not impregnate her or infect her with a sexually transmitted disease. However, this does not mean that she has not suffered emotionally and psychologically.

49. The emotional and psychological scars that this most abhorrent of invasions can only be described by survivors of sexual violence and abuse, though, what His Honour Sakora J. said in The State v Lucas Yovura (2003) N2366 is worth repeating here. He said:

"The very fact of sexual contact and penetration of an unwilling and unconsenting woman and an under-age girl involves physical harm and injury. It is a physical assault as defined by both the law of torts and criminal law, as well as a sexual offence. And the psychological harm, more particularly to a younger victim, can be immeasurable. There can never be a proper and accurate determination of this, even with the best and available professional facilities. So many imponderables, so many ifs and buts in the world of the mind and the psyche. But some degree of psychological harm, either long-term or of short duration, is inflicted and suffered cannot be disputed."

50. And perhaps all that this court can do is to provide some solace to those, like the victim in this case, by imposing a sentence that will give some assurance that the society through the courts still values their humanity and their human rights.

51. This is a matter that calls for a punitive sentence against the prisoner. It also calls for a deterrent sentence against him personally and against those out there who may be similarly inclined or disposed.

52. However, an important object of sentencing in sexual offences against children should and must also be separation – that is separating the prisoner from the victim. And where the child victim is of tender years such in this case, it is in the best interest of the child that she is not exposed to the sexually abusive parent. The court will be failing its duty to the child and to society generally if it does not protect the paramount interest of the child if it does not take into account the likely consequences if the abusive parent were not to be separated from the child.

53. Counsel urged the court to consider the age of the prisoner when deciding on an appropriate sentence. Well all that I can say is this: did he consider how young and vulnerable his daughter was when he started abusing her at the tender age of 7 years and finally penetrating her at 11 years? Did he consider that at that age what his daughter needed was fatherly love and security and the right to demand these from him unconditionally? Did he consider that her future will be forever destroyed, that a social stigma will forever attach to her when his diabolic acts on her become known to the community, that she will be the subject of ridicule? Did he consider that his daughter's prospect of marriage and to have a happy family later will be significantly reduced? Did he consider that his daughter will live with guilt and feelings of worthlessness for the rest of her life?

54. The answer to all these questions is an empathic NO. No he did not consider his daughter's welfare. All that he thought about was how he could satisfy his lust even if it meant defiling his own daughter. It did not matter one bit that the object of his lust was his young, tender and innocent child.

55. So why should he start worrying about his age? He has lived a pretty long life already and for all we know, he had enjoyed his life. The same cannot be said about his only daughter. He complains about being dehumanized but the one who has been dehumanized is the victim of his crime of lust – his daughter.

56. So, having said all that, I consider that in the circumstances a sentence in this matter should be an appropriately stiff one. The factors in mitigation are significantly reduced by the aggravating factors.

57. But while this case might not warrant the maximum penalty of life the sentence must be such that it should send out a clear message to the prisoner and others who think and behave like him that they cannot expect to be shown leniency if they sexually abuse their children or any child for that matter.

58. The prisoner has not offered any explanation why he sexually abused his only daughter from a very young age. It has not been said that he was not being sexually fulfilled by his wife but even if that were so, why turn to your daughter, not to mention that she was but a mere 7 year old child when this degrading saga started?

59. Comparing this case with some of the cases surveyed above, I think that the sentence here should fall within the range of the sentences imposed in The State -v- Danny Tutuve (supra) (18 years); The state v Steven Makai (supra)(20 years); The State -v- Steven Siname (supra) (28 years) and The State v Makis (2012) (supra) (27 years).

60. While a long sentence will punish and hopefully rehabilitate the prisoner and important reason or purpose is that of separation. He has to be separated from his daughter who is now 17 years. Despite the fact that she may have been visiting the prisoner in gaol lately there is no guarantee that the prisoner will not re-offend.

61. Hence in the circumstances I feel that the starting point in a case which probably ought to attract a term of 25 -27 years should be 20 years.

62. So taking into account all those factors for and against the accused the appropriate sentence should be 20 years imprisonment.

63. To date the prisoner had been in pre-trial custody for a period of 2 years 11 months and 12 days. This will be deducted from the head sentence. He will therefore serve the balance of 17 years and 18 days.

64. Should any of this be suspended or should the prisoner be placed on probation?

65. Given what I have said above, I do not think that suspension – even if only partially – or probation is appropriate in the circumstances. The prisoner will serve his term of 17 years and 18 days at Giligili Corrective Institution.

________________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

1	Head Sentence	20 years
2	Amount deducted for pre-sentence custody period	2 years 11 months and 12 days
3.	Resultant sentence	17 years 18 days
4	Suspension	Nil
5	Amount of sentence to serve at Giligili Corrective Institution.	17 years 18 days

National Court of Papua New Guinea

State v Paulo [2013] PGNC 112; N5286 (24 May 2013)