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State v Casper [2014] PGNC 282; N5826 (13 November 2014)

N5826

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 783 & 784 OF 2014

THE STATE

v

MOSES KALABOUR CASPER

Lorengau: Geita J
2014: 4,7,13 November

CRIMINAL LAW – Guilty plea - Sentence – Particular offence – Sexual penetrating of a girl under 16 years – S. 229A (1) (3) of the Criminal Code Act.

CRIMINAL LAW – Guilty plea- Consensual sexual relationship under duress and coercion - Breach of trust relationship, authority and dependency present – Victim aged 12 years and prisoner aged 34 years, age difference of 22 years – Sentenced to 10 years with 5 years to be suspended upon payment of K5000 as compensation – Probation Orders and conditions apply.

Cases Cited

Robert Solomon v The State (2007) SC 871
Stanley Sabiu –v- The State (2007) SC866
The State v. Nick Teptep 2004] PGNC 148; N2612
The State v. Kenneth Penias [1994] PNGLR 48
The State v. James Yali (2006) N2989

Counsel:

Francis Pope, for the State
Tom Kaleh, for the Prisoner

JUDGMENT ON SENTENCE

13 November, 2014

1. GEITA J: You pleaded guilty to the charge of sexual penetration of a girl under the age of 16 years old at Nauna Island in Lorengau, Manus Province on 19th January 2014. You penetrated her vagina with your penis thereby contravening s 229A (1) (3) of the Criminal Code Act, as amended to date. Furthermore an existing relationship of trust, authority and dependency between you as step father and the child as your step daughter existed.

Introduction

2. An Indictment presented against you consisted of two counts: Persistent sexual abuse of a child and Abuse of Trust, Authority & Dependency under s.229D and s.229E. Upon arraignment you admitted to only one count of sexual abuse and not four as alleged in the indictment. After a short adjournment for clarity of instructions the State Prosecutor applied for removal of the first indictment with an amended Indictment under s.229A (1) (3) Criminal Code. Furthermore a declaration pursuant s.525 (1) of the Criminal Code Act was moved by The Public Prosecutor: that the charge under s.229E of the Code not to be laid against you was made and accepted by this court. This charge is abandoned. What this now means is that you are discharged on that count: File reference CR 784/2014. You have been arraigned under s.229A (1) (3) to which you pleaded guilty. This sentence on judgment is therefore in relation to that count.

The Law

3. You have been convicted of sexually penetrating a girl under the age of 16 years old, an offence contrary to s. 229A (1)(3) Criminal Code Act, as amended. It reads:

"229A. Sexual penetration of a child.

(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.

The Facts

4. The facts as agreed by the State and Defence on the depositions for the guilty plea are these: On the 19 January 2014 at Nauna Island, Manus Province you had consensual sexual intercourse with your step daughter by inserting your penis into her vagina. At the time the child named (N.A), was 15 years old. The crime was committed inside the family home at night when her mother had gone out of the house. The next day the incident was reported to the police through her mother. The complainant, NA, was 15 years old at the time and that a breach of trust relationship existed in that you were his step father and the child your step daughter.

Allocutus

5. In your allocutus, you said sorry for what you have done in the eyes of God and to the court. You also apologised to your daughter and your wife including your community and leaders. You promised not to repeat the same crime again and asked for leniency from court.

Mitigating factors

6. The factors in mitigation were the following:

a) Guilty plea

b) Expressed remorse

c) No prior convictions

c) Victim not pregnant and no sexual deceases transmitted

d) No threat of violence and force used on victim

e) That you are first-time offender

Aggravating factors

7. The aggravating factors were the following:

(a) Existing relationship of trust, authority and dependency.
(b) Victim under 16 years at time of offence

Defence submissions

8. Your Lawyer told me about your personnel particulars and also made submissions on what the appropriate sentence ought to be in your case. In his submissions, your lawyer urged Court to take into account your mitigating factors in your favour. He submitted that you have 7 other children including the victim and your wife was now 8 months pregnant. You are unemployed and survive on fishing and gardening. Your lawyer conceded that the crime was prevalent and serious and attracts a punishment of up to 25 years; however he urged that your case be treated on its own facts and circumstances.

9. In support of his submission your Lawyer referred me to the case of Robert Solomon v The State (2007) SC 871. That primary case involved a half brother/half sister relationship involving three counts of rape with aggravation over a period of 5 years. Several issues were involved: one of which was the totality principle in which the court substituted 45 years to 24 at 8 years per count. Mr Kaleh submitted that this case was not the worst type of case and that a term of imprisonment of up to 8 years be considered with further consideration for a partial non custodial sentence. In addition Mr Kaleh urged court to consider Section 19 Code with the prisoner's rehabilitation to be also considered.

Pre Sentence Report

10. I have had the opportunity of reading through your pre sentence report and take note of your family concerns and your family background. Your family members and your community spoke very highly of you in part and stand ready to pay for your wrongs by way of compensation. Although your community is very apprehensive of you re-offending, if not appropriately punished. Put simply your community wants to see you incarcerated for some time. My views regarding your community shouldering your responsibility is wrong and should not be encouraged by courts. Persons who cause trouble must be held accountable or responsible for their wrongs and mistakes, family members and wanoks should not take that responsibility.

11. The victim/child who grew up to love you and accept you as her natural father has sacrificed her pride and dignity by forgiving you for the wrong done to her and asked that you be considered for probation for the sake of her brothers and sisters including her mother, your wife who are suffering as a result of your stupidity/detention. The victim admitted to consensual sex with the prisoner.

12. Despite the seriousness of this crime the Probation Office has recommended that a deterrence sentence be considered together with a long term probation order in order for you to receive counselling and guidance to control your sexual emotions. I thank Mrs Nancy Poli, Senior Provincial Probation Officer for this pre sentence report.

State submissions

13. Public Prosecutor, Mr Popeu submitted that although the prisoner's pre sentence report was very favourable to him with his family and community asking for a non custodial sentence the prevalence of the crime should not be overlooked by court. The victim was willing to forgive the prisoner and accept compensation. Together with the fact that the crime was serious in nature in that there was a sacred breach of trust: father and step daughter relationship which existed, a cause for serious aggravation. Mr Popeu submitted that a deterrence sentence be imposed to deter others and the general public from committing similar crimes. Counsel referred me to the case of Stanley Sabiu –v- The State (2007) SC866 where the appellant had appealed against a sentence of 17 years imposed on him for sexually penetrating his 6 years old nephew. In dismissing the appeal the court set a starting point for sexual penetration of a child under the age of 12 years at 15 years. In this case the age difference is 22 years: victim 12 years and the prisoner 34 years. The seriousness of this crime was watered down by the victim's own admissions in my view of consensual sex in her pre sentence. Accordingly Mr. Popeu submitted that a custodial sentence of 10 years be imposed on the accused.

Community attitudes

14. Notwithstanding very favourable comments from your community, the victim's uncle is of the view that you be incarcerated. Furthermore your Paramount Chief Albert Punjimill in a letter sent to the Provincial Police Commander on 16 April 2014 also called for your apprehension as a result of this crime coupled with your habitual criminal activities on the island. Your community appears to be divided in their views.

Do I consider this crime serious based on the facts and circumstances before me?

15. I will answer in the affirmative for the following reasons: Although the victim admitted to consensual sexual intercourse with you she was under extreme duress at the time. She was told to leave the house by her mother when she discovered that the victim had an earlier existing boyfriend/girlfriend sexual relationship. When she confided in you as her father presumably to solicit your sympathy you took advantage of her vulnerable position and asked her for sexual favours in return. It was obviously that she could not resist as that would mean her been permanently forced/removed from the house she grew up in since she was 9 months old. I am therefore not satisfied that her consent was truly and genuinely obtained and will not accord her consent as a favourable mitigating factor in your favour. Furthermore you were in a position of power over her and easily coerced submission to her detriment. I restate here that all forms of crimes which go against the moral fabrics of society are abhorred with disdain by any community including the community here in Manus Province.

16. Understandably the case now before me is less serious than the Roberts case however it was decided some 7 years ago and unfortunately no longer applicable to the circumstances of the country today. The prevalence of the crime of rape on innocent victims has prompted the courts to seriously review the existing guidelines with a view to increasing sentences. In 2006 Cannings J in the case of The State v. James Yali (2006) N2989 suggested ten years as the starting point after surveying a number of judgments delivered between 2003 and 2005 involving the offences of rape and sexual penetration of a child. Courts have been very cautious in following this upward trend in tariffs for very good reasons, one of which is the observance of the principle of stare decisis: see Schedule 2.9 of the Constitution. The Supreme Court in the John Ambuku case however acknowledged that rape was a serious offence and could attract immediate custodial sentence except in very exceptional circumstances.

17. Both the National and Supreme Courts have come out publicly in their judgments condemning the crime of rape and described this evil in society in many ways: "Invasion of the privacy of the most intimate part of a woman's body..." Injia AJ (as he then was) (The State v. Kenneth Penias [1994] PNGLR 48. "Rape has become a very prevalent violent crime... courts must reflect some of these values, but more so, the society's utter revulsion of this kind of violation and degradation of women...Sevua J (as he then was) in the case of The State v. Nick Teptep 2004] PGNC 148;N2612. These are very profound statements and courts dealing with rape cases are urged to acknowledge and apply them where appropriate. I feel obliged to adopt the sentiments expressed by the two Judges in the two cases mentioned above and apply them here in this case as they encapsulate societal need to punish rapists harshly.

18. I disagree with your Lawyer for a sentence of less than 8 years as that would send the wrong message to would be perpetrators. I am more inclined to be guided by the case of Stanley Sabiu (supra) and consider a sentence of 15 years, however in light of the act of sexual intercourse being consensual I will settle on a starting point of 10 years, all your mitigating factors and family concerns considered. Might I add here that your families suffering are your own doing and no one is to be blamed except you?

Sentence

19. Due to the reasons given above, I am satisfied that a sentence of 10 years is appropriate under the circumstances less any pre trail custody period available to the prisoner. Furthermore in the exercise of my discretion under s.19 of the Criminal Code I make the following orders:

(1) Five years (5) of which will be ducted from the sentence upon you paying K5000 as compensation to the victim and her relatives.

(2) You shall serve 3 years of your remaining 5 years sentence after which you will be released and placed on Probation for 2 years under the supervision of Lorengau Probation Officers,

(2) You are to keep the peace and to be of good behaviour, towards the victim.

(3) You must attend counselling to control your emotions.

(4) Probation Officers must be allowed to carry out random inspections of your house at all times.

(5) Should you fail to comply with any of the above orders you will be arrested and made to serve the whole of the suspended sentence?
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner