|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NOs. 513 AND 514 OF 2015
THE STATE
V
VINCENT FONG
Kokopo: Anis AJ
2016: 19 April, 24 May,
24 June and 9 September
CRIMINAL LAW – Sentence - prisoner pleaded guilty to abuse of trust, authority and dependency under section 229E(1) of the Criminal Code Act Chapter No. 262 - sexual offence committed by father on biological daughter - victim 16 years old at the time - victim conceived a child as a result - presentence reports did not recommend probation - prisoner had issued serious threats to his own family - prisoner sentenced accordingly
Facts
The Court convicted the prisoner for abuse of trust, authority and dependency. The prisoner sexually abused his biological daughter who was 16 years old at that time. The victim fell pregnant and conceived a child. The Court considered the mitigating and aggravating factors presented. Two pre-sentence reports were also prepared and tendered in Court. The reports said amongst other things that the risk of the prisoner likely to commit similar offences to others or to the victim was high. The reports also said the prisoner had issued serious threats to his family members.
Held
Cases Cited
CR 292 of 2010 State v. Joseph Ureap (2010)
Joe Nawa v The State (2007) SC1148
Public Prosecutor v. Tom Ake [1978] PNGLR 46
Saperus Yalibakut v. State (2006) SC 890
State v. Anton Tugumar (2013) N5377
State v. Balthazar Basan and Herman Sarea (2012) N4896
State v. Benjamin Makile (2016) N6251
State v. Daniel Latu Bun (2007) N4494
State v. Eric Tene (2008) N3951
State v. Esorom Asupa (2011) N4540
State v. Joe Ngotngot and Eremas Matiul (2015) N6364
State v. Joseph Taule (2013) N5113
State v. Ottom Masa (2000) N2021
State v. Raymond Andrew (2008) N3955
State v. Siaro Unde (1999) N1802
State v. Peter Yawoma (2001) N2032
Thress Kumbamong v. The State (2008) SC 1017
Counsel
Ms S. Dusava, for the State
Ms J. Ainui, for the Prisoner
SENTENCE
9 September, 2016
1. ANIS AJ: The prisoner has pleaded guilty to one count of abuse of trust, authority and dependency contrary to section 229E(1) of the Criminal Code Act Chapter No. 262 (the Criminal Code Act).
2. Section 229E(1) states and I read:
229E. Abuse of trust, authority or dependency.
(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.
Penalty: Imprisonment for a term not exceeding 15 years.
THE OFFENCE
3. The prisoner has admitted to committing the offence as follows: During the month of June 2014, the prisoner was at Rabagi No. 2 village in Toma/Vunadidir in the Gazelle District in East New Britain Province. The victim is his daughter and second born in the family. The prisoner and the victim's mother had separated. The victim was 16 years old at that time. The prisoner and the victim set down together in the house whilst everyone else were asleep. Suddenly, the prisoner grabbed the victim's hands and he removed the victim's clothes. The victim started crying because she did not expect that from the prisoner who was her father. The prisoner removed her clothes and inserted his penis into her vagina before letting her go. The prisoner was very abusive towards the victim in the months that followed. The prisoner was also over protective over the victim, which was why the victim did not tell anyone for some time. The victim's grandmother found out about it and questioned the victim. The victim freely admitted to her grandmother that the prisoner had been sexually abusing her. By that time, the victim was six (6) months pregnant with the prisoner's child.
ISSUE
4. The issue is what would be the fitting punishment to impose upon the prisoner?
ANTECEDENT REPORT
5. The antecedent report that was tendered is inconclusive on whether the prisoner had prior convictions. I note that from submissions made by the State (prosecution).
6. I also note that I had ordered a Pre-sentence Report (PSR1) to be prepared and be produced in Court after the prisoner had taken his plea. The Court was later notified that a further report was also necessary to obtain information from the prisoner's other family members who were located in Madang. I then issued orders for a Supplementary Report (PSR2) to be prepared and produced in Court. Both reports were completed by the Community Based Corrections (CBC) which took some time. Both reports have since been tendered and are before this Court.
7. Based on the two pre-sentence reports, there are indications that the prisoner may have a prior conviction. I will address that in the later part of my judgment.
PERSONAL INFORMATION
8. The prisoner is 39 years old. His father is from Madang and his mother is from East New Britain. His father married two wives. The prisoner is the third born from his father's first wife. The prisoner has six (6) siblings including himself. He has one (1) sister and four (4) brothers. One (1) of his brothers died sometime back. The prisoner's mother left them whilst the prisoner was still attending primary school.
9. The prisoner's father's second wife is from Madang. From the second marriage, the prisoner's father had five (5) children.
10. The prisoner attended Mope Primary School in Madang in 1989. He left Madang for East New Britain after that. He attended St. Martins High School Vuvu from 1990 to 1993. The prisoner attended VunaBosco Technical School in 1994 and attained a technical training certificate in electronics.
11. The prisoner was only once employed in 2003 by Brian Bell Ltd in Madang.
ALLOCATUS
12. During administration of allocatus, this is what the prisoner had to say:
MITIGATING & AGGRAVATING FACTORS
13. I have considered the submissions by the parties regarding the mitigating and aggravating factors. I list the mitigation factors as follows:
14. Similarly, after considering the parties' submissions on the aggravating factors, I list them as follows:
PENALTY
15. The maximum penalty for the crime of abuse of trust, authority and dependency is 15 years imprisonment or less.
COURT'S APPROACH ON SENTENCING
16. How should I approach sentencing for this case? I will obviously require assistance from past similar case authorities.
17. I will also follow the approach recommended by the Supreme Court in the case of Thress Kumbamong v. The State (2008) SC 1017. The Supreme Court has, I think, generally encouraged judges or the courts to better utilise their powers that is granted to them under section 19 of the Criminal Code Act, in sentencing.
18. Let me use its own words where it said and I read:
64. This Court is thus of the view that, it is high time now to review the society’s approach to dealing with offenders through the courts. Not every case of human error is criminal and not every criminal case warrants imprisonment. The courts need to re-examine and identify cases that require imprisonment for the protection of the society and the cases that do not warrant imprisonment but correction outside the prison system. This is not a new thing. The courts have been doing that for centuries but have failed to guarantee safer societies. What is new, however, is the question of what should be the primary focus of criminal sentencing and the suggested answer of correction and rehabilitation and not necessarily imprisonment in prisons. Adopting such an approach would enable the courts to address that which matters most, which is the emotional needs of an offender and the society as a whole for a safer society.
...
67. Section 19 of the Code makes it clear that, a trial Judge has a wide discretion to impose any punishment from a term of years to life imprisonment. It is worth noting that, the discretion thus vested in the courts is not subject to any guidelines to be set by the Supreme Court or anybody. The discretion is instead left entirely within the discretion of a trial judge. That discretionary power ought to be exercised judicially and according to law and not arbitrarily, vaguely or fancifully. It must be exercised on proper grounds for good reason and not capriciously.
COMPARATIVE CASES
19. I have considered the various case law on point, that is, cases that involve prisoners sentenced after they have pleaded guilty to the offence of abuse of trust, authority and dependency under section 229E(1) of the Criminal Code Act. My general comment is that there are not that many reported cases for offences committed under section 229E (1).
20. For this case, I will refer to four (4) similar type cases to assist me determine a suitable punishment for this prisoner.
21. The first case is the case of State v. Daniel Latu Bun (2007) N4494. The prisoner was 31 years old. He pleaded guilty to the charge under section 229E (1) of the Criminal Code Act. The victim was the prisoner's niece. The victim was 16 years old at the time of the offence. The incident happened at Teilatu village, in the Solos area of Buka Island. The victim went to the garden with her small sister, to harvest some greens. The prisoner arrived there where he found the victim. The prisoner took her into the bushes and had sexual intercourse with her by inserting his penis into her vagina. The prisoner was sentenced to 7 years imprisonment less the time spent in prison.
22. The second case is the case of State v. Anton Tugumar (2013) N5377. The prisoner was 51 years old when he committed the offence. He pleaded guilty to the charge under section 229E (1) of the Criminal Code Act. The victim was his adopted daughter. She was 16 years old at that time. The prisoner lured her into the bushes under the pretext of cutting some bamboo poles. There the prisoner threatened the victim with a small pocket knife. He undressed her and sexually penetrated the victim despite her protests and cries. After the incident, the prisoner threatened the victim not to tell anyone including the victim's mother or else he said he would cause her problems. The victim having felt very miserable about the incident immediately reported the matter to her biological mother. The prisoner was sentenced to 10 years imprisonment less the time served in custody.
23. The third comparative case is the case of State v. Esorom Asupa (2011) N4540. The prisoner pleaded guilty to the charge under section 229E (1) of the Criminal Code Act. The victim was the prisoner's sister in-law. The victim's age was between 16 and 18 years old at the time. The prisoner took the victim and went into the forest where he inserted his penis into her vagina. The prisoner kept the victim there and had sex with her for some time before returning to the village. The prisoner was sentenced to 13 years imprisonment less suspended time and time spent in custody.
24. If I compare these three cases to the present, the present case, in my opinion, would attract a higher sentence. Three (3) striking factors for the present case that should attract a higher sentence are these: Firstly, the victim is the biological daughter of the prisoner. Secondly, the use of violence, force and restrictions placed by the prisoner on the victim during and after he committed the offence. Thirdly, the victim fell pregnant and gave birth to her own father's child.
25. The fourth case I refer to is the case of State v. Joseph Taule (2013) N5113. Except the fact that the offence committed therein was not under section 229E(1) but was for rape, the facts are quite similar to the present case. The prisoner was convicted of raping his biological daughter contrary to section 347(1) of the Criminal Code Act. The prisoner was 38 years old when he committed the offence. The victim was 17 years old at the time when she was raped. The victim fell pregnant and gave birth to the prisoner's child. The Court sentenced the prisoner to 14 years imprisonment less the time spent in prison.
26. When I compare the four (4) cases, I note that the case of State v. Joseph Taule (supra) stands out and appears relevant to the present case in terms of considering an appropriate sentence. The Court therein imposed 14 years imprisonment on the prisoner for the offence of rape, which carried, for that particular incident (i.e., without aggravation), a maximum sentence of 15 years imprisonment. When I look at the sentences imposed by the Courts in the first three (3) cases and compare them with the sentence imposed by the Court in the case of State v. Joseph Taule (supra), I am of the view that a suitable sentence for the present case should be 13 years imprisonment or more.
SUBMISSIONS
27. The prosecution submits the present case is serious and warrants the maximum prison term of 15 years.
28. The prosecution refers to the case CR 292 of 2010 State v. Joseph Ureap (2010). The case relates to an offence committed under section 229A(1) & (3) of the Criminal Code Act. Although the facts of the case are similar (to the present case in that it involves a father forcefully having an incestuous relationship with his daughter), different charges and law apply. Secondly, the maximum prison term imposed for offences committed under section 229A(1) & (3) is 25 years to life imprisonment. Offences committed under section 229E(1) like the present case carry a maximum sentence of 15 years. Therefore, I conclude that it is not a good comparative case. Having said that, I do accept counsel's submission where she asks the Court to also consider the said case of State v. Joseph Ureap (supra) and impose a deterrent sentence. Counsel submits that incest related offences are prevalent in East New Britain Province. Let me note Justice Sawong's decision on point in that case. His Honour held and I read:
(i) The offence is serious breach of a trust between a father and his daughter, that is it calls for an immediate deterrent and punitive custodial sentence.
(ii) This being a prevalent offence in East New Britain Province in particular it calls for punitive deterrent sentence.
29. The defence submits that the prisoner should receive a sentence range between 8 to 10 years. The Defence also refer to the two cases namely State v. Anton Tugumar (supra) and State v. Esorom Asupa (supra) to support its submission on sentence.
30. I note that the defence did not refute the claims made in the PSR1 and PSR2. Counsel referred to and covered the pre-sentence reports in her submissions.
31. In conclusion, the defence submits that the Court should also consider partial suspension of sentence and an order for compensation.
FINDING
32. I find the criminal culpability of the prisoner to be very high, that is, for the offence of abuse of trust, authority and dependency pursuant to section 229E(1). I find that the prisoner's actions, which I describe as animalistic, should attract a higher sentence. The victim is the biological daughter of the prisoner. She was 16 years old when the crime was committed upon her. All these happened in the presence or surroundings of the prisoner's other children and family members. Because their mother had left them, the prisoner was the one solely responsible for his children. Well I note that the prisoner did not actually spend much time with his three (3) children because he left soon after for Madang where he remarried, had five (5) more children and he lived there for about 15 years before he moved back to East New Britain to re-join his children. I will come back to discuss his other family later on in my judgment. The victim was abused, threatened and had to live in fear or in isolation with the prisoner during her ordeal. She was about six (6) months pregnant to the prisoner's child when her grandmother finally discovered what had happened and reported the matter to the police. The victim contracted a sexual transmitted infection at that time and had to also receive treatment for that. She has since conceived her father's child.
33. I will impose a sentence of 14 years imprisonment as the starting point.
34. Generally, I do not find valid mitigating factors. However, two factors that require discussion are 'guilty plea' and 'broken home syndrome'. I note that despite the guilty plea, the prisoner had initially denied the charges in the record of interview. The record of interview was tendered and is evidence before this Court. The prisoner did not co-operate with the police at the initial stages of their investigation. Lack of co-operation is also noted in the preparation of the pre-sentence reports. It is not known when the prisoner first started to co-operate with the police. I note that it took about two (2) years from the time when the offence was committed to the time when the prisoner was tried where he had pleaded guilty. In regard to the broken home syndrome factor, I note that the prisoner was already in his 40's, he had married twice and had eight (8) children before he committed the offence. I would have given due regard to this factor had the prisoner still been a youth. In my opinion, he should or ought to have dealt with and overcome this issue throughout his long life. I refuse to give due regard to the prisoner's claim that he still suffers from the broken home syndrome.
35. I note that I did not rule out completely the guilty plea factor. There are many underlying reasons why Courts are required to or should give due regard to guilty pleas in sentencing. For example, this has saved the Court and the parties' time and resources. Secondly, it has saved the victim and her family the burden to re-tell or recall the painful events in court through oral testimonies.
36. I will reduce one (1) year from the 14 years starting point. This will reduce the sentence to 13 years.
37. I have to ask myself this: Is the prisoner the sort of person who should be allowed to return to rejoin society? In my opinion, the answer is "no". This prisoner must be kept away from the society and most important of all, he must be kept away from his family members particularly the victim. Therefore, it is my opinion that this case warrants a deterrent sentence. I make this finding on two grounds. I took into account the vulnerability of victims namely young girls of such young ages who can easily be betrayed by their own parents or fathers. Secondly and as I have indicated earlier in my judgment, I uphold the submission by the prosecution that the offence is prevalent in East New Britain and as such calls for a stiff or deterrent sentence to be imposed by the National Court.
38. I will impose a further two (2) years onto the 13 years sentence bringing the total number of sentence to 15 years imprisonment.
39. The Court will therefore impose upon the prisoner the maximum sentence of 15 years imprisonment.
40. I will now consider the reports from the CBC that is PSR1 and PSR2. I will determine whether I should exercise my powers and impose other method of dealing with the prisoner as provided for under the Probation Act Chapter No. 381 (the Probation Act). By that, I mean whether I should allow suspended sentence, partial suspended sentence with imposed conditions like compensation, under the Probation Act.
41. Let me begin firstly by reminding myself of the purpose of a pre-sentence report. Section 13(2) and section 25(1) of the Probation Act state and I read:
13. Powers of probation officer.
...
(2) Where a court requests assistance in determining the most suitable method of dealing with a person convicted of an offence before it, the Chief Probation Officer may in his discretion—
(a) report, or order a probation officer to report, to that court on the personal history and character of the person; and
(b) advise, or order a probation officer to advise, the court—
(i) whether that person is likely to respond satisfactorily to probation; and
(ii) of any conditions that may be imposed on the release on probation of that person.
...
25. Pre-sentence and other reports.
(1) A report under Section 13 or any other report that a probation officer may make to a court in relation to a probationer is not a public record and shall be kept by the court receiving it as a separate record.
(Underlining is mine)
42. So I note that the purpose of a pre-sentence report is to assist the Court in determining the most suitable method of dealing with a person convicted of an offence before it. The key words there under section 13(2) and 25(1) I think are "most suitable method" and "it is not a public record" respectively. Justice Kandakasi also explains that (i.e., purpose of a pre-sentence report) well I think, in the case State v. Ottom Masa (2000) N2021. His Honour said and I read:
" a pre-sentencing report cannot substitute or dictate the kind of sentenced to be imposed in any one case. They only assist the courts in the process of assessing what kind of sentence to give in cases before them. The courts still have the power to decide on the appropriate sentence to give after having regard to all the factors that need to be taken into account, including any pre-sentencing report. If the situation were otherwise, than there would be no need for the courts to administer justice in criminal cases."
43. PSR1 covers the prisoner's family in East New Britain. PSR2 covers the prisoner's family in Madang. I find both reports balanced when read together as one in that the probation officers were able to interview the relatives and significant community members where the prisoner had live, that is, in East New Britain and in Madang. In summary, both reports reveal damning information about this prisoner. Both reports regard the prisoner as a potential danger to others. PSR1 states that the chances of the prisoner committing similar offences on others as well as on the same victim are high. Both reports do not regard the prisoner a suitable candidate for probation.
44. I refer to PSR2. The report states that the prisoner's second wife in Madang is actually his own half sister, that is, from his father's second wife. From the relationship with his half sister, the prisoner is said to have five (5) more children. They are all named in the report. The report states that the prisoner was imprisoned for incest by complaint from his biological father. The report states that the prisoner was imprisoned at the Beon Jail for some time. The report states that the prisoner, whilst in Madang, also had another relationship with another woman. That woman was the prisoner's aunt, that is, the report states that she is the sister of the second wife of the prisoner's father. The report states that they did not have any children from that relationship and the woman has since moved on and has married someone else.
45. I turn to PSR1. Its second conclusion states how the prisoner had threatened his family before he was incarcerated. I read from the author's notes therein where he said that the prisoner had told his family that "should he go to prison and if he were to escape, he would find them and kill them all like animals. The report states that the prisoner's family and in particular the victim are in great fear of the prisoner. They have taken his threat seriously given the prisoner's violent character.
46. Let me, based on PSR1 and PSR2 summarise how the prisoner had lived his life before he committed the offence. The prisoner left for Madang soon after his first wife had left him. In doing so, he left behind his three (3) young children one of whom was the victim. The prisoner went on to live with his biological father in Madang for the next 15 years or so. Over in Madang, he had five (5) more children from his biological sister (half-sister) from his father's second marriage. The prisoner's children from his first marriage including the victim obviously grew up with the support of family members or relatives in East New Britain. After all these years, the prisoner returned to East New Britain. He re-united with his children whom he had left earlier but only to turn on them and in particular, on his daughter who was 16 years old at that time and committed this offence.
47. The Court must clarify its position on information derived from pre-sentence report(s), which I think is important. In my opinion, the Court must be careful not to fall into the trap of considering and applying facts or findings of the two pre-sentence reports to either increase or decrease a sentence, or use that as a basis or reason to impose or call for a deterrent sentence as if the pre-sentence reports themselves are evidence of facts before the Court. As I have point out earlier in my judgment, a pre-sentence report that is prepared pursuant to section 13(2) of the Probation Act is only meant to assist the Court consider whether the prisoner is a suitable candidate for probation. That is, it should assist the Court in determining the most suitable method of dealing with a person convicted of an offence. It is not a public record or document like a normal court document (section 25(1) of the Probation Act). The information derived therein is not similar like real evidence. Evidence contained in a court deposition and tendered in Court by consent in a plea matter would normally be considered by the Court and be subject to separate rules or laws. [see cases: State v. Benjamin Makile (2016) N6251; Public Prosecutor v. Tom Ake [1978] PNGLR 469; Saperus Yalibakut v. State (2006) SC 890; Joe Nawa v The State (2007) SC1148; State v. Peter Yawoma (2001) N2032]. Let me demonstrate and I will use the present case as an example. The two pre-sentence reports discuss matters that state that the prisoner has committed other offences. The reports state facts, which showed that the prisoner may have other incestuous relationships. I am obliged to and must not take these into account when deciding on sentence or when deciding whether I should impose a deterrent sentence. I am only required to consider and I have already done so, that is, applying the mitigating factors, the aggravating facts, evidence tendered by consent in the court deposition and the antecedent report. Once this Court has reached its decision on sentence, that is when, in my opinion, a pre-sentence report becomes relevant, that is, to assist the Court (and applying the exact words of section 13(2) of the Probation Act) in determining the most suitable method of dealing with a person convicted of an offence before it. That is, whether the Court should consider and apply the provisions of the Probation Act on the prisoner.
48. On that note, I note that the two pre-sentence reports herein contain other serious claims or allegations against the prisoner. I note and must clarify that this Court has considered both reports solely to determine whether the prisoner would be a suitable candidate for probation under the provisions of the Probation Act. In this case, both PSR1 and PSR2 say the prisoner is not a suitable candidate for probation based on investigations carried out by the CBC.
49. I therefore find that the prisoner is not suitable for probation. I will not make any orders or exercise my powers under the Probation Act for this prisoner.
50. Let me end my discussions on the pre-sentence reports by looking at the prisoner's plea for compensation payments in the PSR1. The prisoner states in the PSR1 that he is willing to pay K1,500 cash, 100 fathoms and a pig as compensation. I do not think any form of compensation or remorse would be appropriate under the circumstances of this case. I note from PSR1 that the victim wants the prisoner imprisoned so that he is kept well away from her. In an earlier case where I had decided which is the case of State v. Joe Ngotngot and Eremas Matiul (2015) N6364, I said that a victim's wish was important and if expressed, the Court, although not obliged, should give due regard to it. Let me quote what the victim has told the author of the PSR1. At page 7 of the report I read in part:
When asked by the author as to what she would want to see happen to the prisoner, she stated that she would want to see him imprisoned. She is still very afraid of her father and is even dreading the day there is a jail break; should the father were to be amongst the escapees, she would fear for her safety and life.
The victim even stated that, to this very day and whilst he is in the prison facility, she is still very terrified of him.
The victim, till to date has not forgiven her father for what he did to her, and wants him "locked away for a long time".
51. This victim is obviously still terrified. It is clearly obvious that the crime committed upon the victim has affected her psychologically. In my opinion, compensation will not cure what the victim has been and is still going through. The only way, it seems, that would be to her best interest would be for this Court to follow the victim's wish. In this case, the victim simply wants the prisoner locked and be kept well away from her. She fears for her own safety. She still does not believe that she is safe even though the prisoner has been incarcerated and is now at the Kerevat prison. I also note from the report that the prisoner does not seem to have the financial capacity to pay compensation [see the case State v. Joe Ngotngot and Eremas Matiul (supra)]. For these reasons, I refuse to make any order for compensation.
SENTENCE
52. I impose the maximum sentence of 15 years custodial imprisonment upon the prisoner.
53. I note that deduction of time spent in custody is discretionary under section 3 of the Criminal Justice (Sentences) Act 1986. I refuse to exercise my discretion to deduct time the prisoner has served in custody [see cases: State v. Siaro Unde (1999) N1802; State v. Raymond Andrew (2008) N3955; State v. Eric Tene (2008) N3951 and State v. Balthazar Basan and Herman Sarea (2012) N4896].
54. Given the serious nature of the threat as recorded in the PSR1 by the prisoner to his family and after considering the victim's views, and to provide some form of psychological comfort, surety or safety to the victim, I order that the prisoner shall serve his 15 years custodial sentence at the Bomana Correctional Service facility outside Port Moresby. I order after sentencing herein that immediate steps be taken by the Jail Commander of the Kerevat Correctional Service to effect the immediate transit/transfer of this prisoner from Kerevat Correctional Service to Bomana Correctional Service.
SUMMARY
55. In regard to the issue what would be the fitting punishment to impose upon the prisoner I say the prisoner should be imposed with the maximum sentence of 15 years imprisonment with hard labour.
ORDERS OF THE COURT
56. I make the following orders:
________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor : Lawyer for the Prisoner
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2016/241.html