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State v Matiabe [2016] PGNC 352; N6571 (14 October 2016)

N6571

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1124 OF 2016

STATE

V

KAIYAPE MATIABE

Mendi: Ipang, J

2016: October 12 & 14

CRIMINAL LAW- Sentence- Criminal Code Act as amended- Section 229E(1) breach of trust, authority and dependency- the offender being the step father of the victim female child took her to a bush track, held the victim, pushed his hand in to the victim’s skirt and pants- touched her vagina—then pulled out her pubic hair.

CRIMINAL LAW- Sentence- Mitigating and Aggravating factors considered- No genuine remorse expressed- Appropriate sentence should reflect the offence committed- a sentence with deterrent effect- a sentence of part custodial and part suspended.

Cases Cited
Statev v. Dala (2006) PGNC 110
State v. Bun (2007) PGNC 173
State v. Kilau (2006) PGNC 125; N3107

Counsel:
Ms. Luben, for the State

Ms. Koek, for the Offender

DECISION ON SENTENCE

14 October, 2016

1. IPANG J: On the 11^th of October the offender pleaded guilty to one count of breach of trust, authority and dependency contrary to section 229E (1) of the Criminal Code Act as amended. In that at the time which was on the 18^th of February, 2016 when he sexually touched the victim where there existed a relationship of trust, authority and dependency with the victim in that you are her adopted father. This is the decision on sentence.
   
2. The victim was adopted by the offender and his wife when she was about a year old. She lived with the offender and his wife for whole of her life in Pimiga in Kutubu. She is now doing grade 8 at Tanuga Primary School also in Pimaga, Lake Kutubu. She is of age between 16 to 18 years old. On the 18^th day of February, 2016 the victim was returning from school with her friends. The offender was on the road armed with a stick. As he saw the victim and her friends, he chased the victim’s friends away and forced the victim to go with him through a bush track. The victim questioned the offender as to where they are going, he replied to Beneria village. The victim made an attempt to escape from the offender but the offender caught her and beat her 5 times on her buttock with the stick. The offender then held the victim close to him, pushed his hand in to the victim’s skirt, pants and touched the victim’s vagina. He then pulled out the victim’s pubic hair. The offender’s wife who was looking for the victim called out her name. Upon hearing his wife calling the offender let go of the victim. The offender went over to his wife and both started arguing and fought over the victim. The victim managed to escape and reported the incident to the police.
   

3. The offence of breach of trust, dependency and authority under section 229E (1) of the Criminal Code Act as amended carries a maximum penalty of not exceeding 15 years imprisonment. It is the sentencing practice that maximum penalty is reserved for worse types of cases. The issue that I will consider is whether this present case before me warrants imposition of a maximum penalty prescribed. This will be done by looking at the set of facts this case presented, the mitigating and aggravating factors, offender’s personal particulars, the case precedents, the antecedent report, the allocutus and the respective submissions by counsels.

4. In administering the offender’s allocutus, the offender has this to say; He said Pege and Rita (a married couple) were keeping his wife and his daughter. He said he went to fetch his wife and his daughter but they said they were holding as baby sister. He said he went to his village, made garden and came back to get his wife and the daughter but they changed her daughter’s name to Pege. So on that day he said he wanted to take the daughter to his village but she refused so he assaulted her. I pulled her skirt so now I am in court.

Submission by Defense

5. Ms. Koek of counsel for the offender submitted the following to be the personal particulars for the offender. He is 50 years old from Beneria Village, Hela Province. He is the 3^rd born from three children from his parents’ marriage. His both parents are deceased. He is a member of Evangelical Brotherhood Church of PNG, he is a self trained Chain Saw Operator, and he is married with three children. The two children are his biological children and the victim is his adopted daughter. He has been remanded in custody for a period of 10 months. The offender’s case is a fresh committal from the District Court, however due to his early admissions and plea his matter is dealt with today.

6. Ms. Koek submitted that this case does not fall under worst type of cases as the offence committed involved sexual touching rather than the actual sexual penetration. So, considering the mitigating factors, the offender’s early admission and early plea, the counsel submitted that this court consider subject to section 19 of the Criminal Code Act a lesser penalty. She submitted for a term of 3 years custodial sentence minus the 10 months pre sentence period spent in custody and the balance of the sentence to be wholly suspended with conditions.

Submission by State

7. Ms. Luben for the State submitted that the offence under which the offender has been charged with and found guilty is very serious and prevalent. She submitted that the offence involved breach of trust, authority and dependency in that the offender is the adopted father of the victim. She said there is a huge age difference between the offender who is 50 years old and the victim who is between the age of 16 to 18 years old. Thus, there is age difference of 30 years. Further but not the least, the State Counsel submitted there is no genuine remorse expressed by the offender to the victim. However, she conceded with the Defence Counsel that there was no weapons used, the offender acted alone and that no injury was sustained by the victim. Ms. Luben for the State submitted for a custodial sentence of 6 years.

Application of case laws

8. In the case of State –v- Kilau (2006) PGNC 126; N3107 the offender sexually penetrated the victim. The offender was charged pursuant to section 229E (1) of the Criminal Code Act as amended. The victim was between 16 to 18 years old. The offender was the class teacher of the victim. The victim was pregnant through the incident. The offender was sentenced to 7 years imprisonment. In the case of State-v- Bun (2007) PGNC 170 the offender was found guilty of the offence committed under section 229E(1) of the Criminal Code Act as amended. The offender had sexually penetrated his 16 years old niece. They found that there was huge age difference and no reconciliation made. The offender was sentence to 7 years imprisonment. Pre sentence period of 10 months and 2 weeks were deducted. Offender was to serve balance custodial sentence of 6 years, 1 month and 2 weeks. None of the sentence was suspended. In State-v – Dala (2006) PGNC 110, the offender 45 years old pleaded guilty to sexually penetrating his 16 years old step daughter. The victim is the daughter of offender’s wife from her previous marriage. He pleaded guilty to one count of breach of trust, authority and dependency under section 229E (1) of the Criminal Code Act as amended. There was a huge age difference. The offender was sentenced to 5 years imprisonment. The Pre sentence period of 2 years was deducted and the balance of the sentence was suspended.

Court’s Analysis

9. The case of Kilau (supra), Dala case (supra) and Bun case (supra) involved the sexual penetration of the victims. This instant case involved sexual touching. Therefore, in my humble view the penalty for the offender in this instant case will be slightly below the sentences imposed in these three cases as stated. In Bun case a 7 years sentence head sentence was imposed. In Dala case, a starting head sentence of 5 years was imposed. In this instant case, I imposed 4 years as the starting head sentence. I deduct 10 months for the pre sentence period served in custody. This will live the offender to serve 3 years, 2 months. Given the offender’s co-operation with the police as evident in his Record of Interview and his plea of guilty I deduct one (1) year, 2 months. This will live the offender to serve two (2) years custodial sentence. From the balance of the sentence to be served, I order that the offender serve 0ne (1) year in prison and the other one (1) year be suspended in that the offender be placed on one(1) year good behaviour bond with conditions. The sentence for the offender in this instant case is part custodial and part non custodial. This is so because the offender has not expressed remorse and further chances of committing the same offence is very likely. The conditions for the offender’s good behaviour after serving one custodial term sentence are that;

1. he shall not commit the same or similar offence on the victim.

2. he shall keep peace and be of good behaviour towards his wife and the victim.

3. he shall not assault, threaten, intimidate or harass the victim.

4.he shall not take any form of alcoholic drinks.

5. he shall not do drugs.

6. he shall receive regular counselling from leaders in the community and more specifically church leaders.

7. he shall not commit any other types of offences whilst under his good behaviour bond.

8. he shall not mistreat or chase away the victim from the family.

Sentenced accordingly,

________________________________________________________________
Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Offender