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State v Kaore [2014] PGNC 43; N5572 (10 April 2014)

N5572

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1416 OF 2010

THE STATE

V.

BONNY BUBU KAORE

Kimbe: Batari, J
2014: 6 March, 10 April

CRIMINAL LAW – sentence – sexual penetration – 17 year old sexually penetrated 9 year old first cousin – breach of trust – custom – cultural inhibitions in first cousin relationships - breach of - plea – factors in mitigation - compensation – payment of - sentence of 8 years appropriate.

Cases Cited

No cases cited

Counsel

Mr. A. Bray, for the State
Mr. P. Moses/D Kari, for the Accused

10 April, 2014

1. BATARI J: The indictment brought against you, on 3/4/13 as amended charges that on 2/8/10 at Galeoale village, Hoskins, WNB Province you; BBK sexually penetrated a 9 year old girl, SK by inserting your penis into her vagina.
   
2. You pleaded guilty on 6/3/14. Your sentence was deferred to today for pre-sentence reports ordered from the Probation Officer. Under s.229A (2) of the Criminal Code (Sexual Offences and Crimes against Children) Act 2000, you are liable to be sentenced to life imprisonment, subject to the Court's sentencing discretion under s. 19 of the Criminal Code. This is your sentence.
   
3. On the date of the incident, you were at your oil palm block and left about 2.00pm. On the way, you met the victim SK with other children climbing laulau. SK and her friend were returning from school when they stopped to gather laulau fruits. They were joined by some of their class boys. You came along after that. SK left the group to relief herself and to collect galip nuts. You also left the group and accosted her from the back as she was collecting galip nuts. You pulled her into the nearby bushes with your hand over her mouth so that she did not shout or call for help. Then you removed her clothes and sexually penetrated her. SK sustained a deep perineal tear on the vaginal wall and torn hymen. She was presented at Kimbe General Hospital with severe vaginal bleeding and pain. The injuries though serious were not permanent, save for the premature hymen breach.
   
4. Sexual violence against children under the age of 16 years is such a serious matter that Parliament has seen fit to prescribe the maximum penalty of life imprisonment for the offender convicted of sexual penetration in breach of trust and dependency or if and the victim is under the age of 12 years.
   
5. In your case, SK was your first cousin. So, the statutory aggravating factor of breach of trust and dependency was present. A further serious statutory factor charged on the indictment is that SK was under 12 years old. Added to the gravity of your offence is the fact that the girl suffered injuries and she lost her virginity.
   
6. In today's civil society, young children, girls and our womenfolk have the same constitutional rights and freedoms as do men, to go about their lawful duties free from all manner of harassment, intimidation and threat from anyone, especially young man like you who do not seem to have anything better and useful to do than prey upon unsuspecting young girls for their own sexual gratification. Our young people and our womenfolk deserve the respect and freedom to go anywhere, anytime of the day or night without fear or apprehension of personal attacks and violence.
   
7. When our young children and womenfolk are treated with disrespect, when they are abused, harassed or sexually violated randomly at the growing rate it is, this brings bad name, image and great shame to our local community, our Province, our people and our country. Law abiding citizens would say that those who spoil the good name of the people and our country with their anti-social behavior should not be allowed to roam around freely in the community. They should be shut away for a long time.
   
8. You and SK are related as first cousins. In that case, she was well known to you and you could not have hoped to do this to her and get away with it. More importantly, there is a relationship of trust between you and SK. She would look to you for respect and support as an older relative. She expected you to respect her and not to violate her sexually in the manner you did. You breached her trust, her parent's trust and dependency on you.
   
9. Your offence also has a wider social and cultural implication in the strong Nakanai custom which I take judicial notice of, being from this tribe myself. SK is the daughter of your father's sister. She stands in a special relationship with you unlike your other first-cousins from your mother's side or your father's side. Children from the brother and from the sister are born into a special relationship as between themselves, locally known as 'tamisa'. To the other, he or she is the 'untouchable', bound by strict adherence to keep his/her distance, not to touch, insult, swear at or do bad things against the other. They will call each other 'tamisagu' or 'lavogu' and rarely by personal names. This special relationship is commonly referred to in pidgin as 'tambu' with the same connotation as taboo. It also has the same effect as 'in-laws.' The strict customary rules guard, strengthen and promote respect in that special relationship. Punitive compensation always follows in the event of breach to redeem shame and restore relationship. In this case, there has been a very serious breach of customary relationship and trust.
   
10. A further consideration against you is the effect of the offence on the victim. SK suffered physical trauma from the sudden attack on her. She also sustained injuries from the ordeal. The psychological harm the child suffered or is likely to suffer adds to the gravity of your conduct.
    
11. The extent and future of any psychological effect on the victim cannot be precisely ascertained largely because of lack of facility for reliable assessment. At the same time, it possibly does not need an expert to be convinced that the trauma suffered from a violent attack is likely to scar the victim for life. It may also lead to emotional difficulties in forming trusts and relationships with the opposite sex.
    
12. Put all that together, you committed a very serious form of sexual penetration against a child. So, a strong deterrent sentence is warranted. This must be balanced with your personal circumstances.
    
13. You were 17 years at the time of the offence. Your lawyer, Mr. Moses had asked that you be treated as a juvenile for the purpose of punishment under the Juvenile Courts Act 1991. Part VII of the Act sets out a comprehensive sentencing directive in dealing with juvenile offenders. One of the mandatory requirements under s. 29 is for the court to order and consider a pre-sentence report, before sentencing the young offender.
    
14. This law puts young offenders out of the ordinary into a special category for individual treatment on the question of punishment. The rationale is simple. Young first offenders are vulnerable to greater evil influences if sent to jail and as it is often stated, a young person will usually come out of jail worst off than when he or she first went in. The truth is more so in Papua New Guinea where facilities for juvenile rehabilitation is either non-existent or minimal.
    
15. The sentencing authority therefore carries a greater responsibility in sentencing first young offenders to assist rather than destroy the young person if that can be helped. It is also trite that in prevalent offences invariably committed by young offenders, the youth factor will lessen in weight unless exceptional factor or special circumstances in mitigation is shown. On the other hand, the court must be careful to punish the offender as an individual other than make him or her a scapegoat for the general lawlessness.
    
16. A Pre-sentence Reports (PSR) is before the court together with a Means Assessment Report (MAR). Mr. Moses adopts and relies on the contents of these reports. The PSR and the MAR compiled by Probation Officer Ms. Elizabeth Passingan are commendably comprehensive on personal circumstances of the prisoner and other relevant matters intended for Court assistance on sentencing.
    
17. Counsel submitted that the seriousness of the offence and the particular circumstances of this case should not over-shadow and deny the prisoner the benefit of treatment as a juvenile for the purpose of punishment. The PSR points to a young first offender with an impeccable past with no likelihood of re-offending. He comes from a very supportive family. A community leader also speaks well of his general behavior and attitude as obedient and helpful. Mr. Moses pleads that the offender be given the benefit of non-custodial sentence to avoid disruption to his schooling. He is a student at Hoskins high School.
    
18. The PSR and MAR also make a strong point on the close relationship between the prisoner, his victim and their parents. The conduct of the offender caused much anger, shame and pain to SK's parents because of the special close relationship between them. It would be a cause for further hurt and harm to the family relationship to see the offender go to jail. Both sides would settle for alternative restorative justice where compensation is paid under custom to mend and restore the customary relationship. I think compensation should be ordered. But that will not take the place of imprisonment as a punishment.
    
19. In all the circumstances, taking into account your plea and your personal circumstances and the circumstances of your offences, you are sentenced to 8 years imprisonment with hard labour.
    
20. In the exercise of the Court's sentencing discretion based on the recommendations of the Probation Officer, I propose to suspend the whole of the term to be served on probation orders. I also propose to order community service work and compensation so that you are effectively punished in and by the community.
    
21. The sentence of the Court is that –
    
    1. You are sentence to 8 years and IHL.
       
    2. The whole term is suspended and that you are to serve your 8 years sentence on a 5 year probation period subject to the usual terms under the Probation Act with further orders that:
       
       1. You shall within 48 hours report to the Probation Officer;
          
       2. You shall performs 600 hours of community work at a worksite to be approved by the National Court and supervised by the CBC Office;
          
       3. You shall keep the peace and be of good behavior at all times;
          
       4. You shall not consume liquor or any form of intoxicating substance or drugs whilst on probation;
          
       5. You shall attend church every weekend for service and worship whilst on probation;
          
       6. You shall within 2 weeks, join your local church youth group and participate in all its activities during your probation period;
          
       7. You shall undergo counseling from your local priest or pastor for a number of times as may be determined by the counselor;
          
       8. Within 3 months of today's date or by 10 July 2014 you are to reconcile and compensate SK as follows:
          
          1. Cash payment of K3,00.00 less K500.00,
          2. One mature or adult pig valued at K1,000
          100. One traditional shell money, 'la tuhali.'
               
    9. The reconciliation and compensation payment shall be attended and witnessed by the Probation Officer, Buluma Rural Police Station Commander, the Arresting Officer, Chairman of Hoskins Village Court and Village Court Officials, community and church elders;
       
    10. The Probation Officer shall record and file a report at the National Court Registry on the reconciliation and compensation payment;
        
3. The Probation Officer shall file a report on the responses and progress of the probationer every six months with the first report due on 1 October 2014 and whenever the National Court may upon application, order;
   
4. In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence.
   
5. These orders shall be listed for mention on the call-over in October, 2014.

______________________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused