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State v Kankan [2017] PGNC 25; N6630 (1 February 2017)

N6630

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.No.940 OF 2015

THE STATE

V

GEORGE GIOR KANKAN

Kokopo: Lenalia, J.
2016:14^th, Nov 6^th&21^stDecember
2017:31^st January &1^stFebruary

CRIMINAL LAW – Sexual offences – Persistent sexual abuse –
Abuse with each of trust authority and dependency – Guilty plea – Criminal Code (Sexual Offences and Crimes Against Children) Act 2000.Section 229D (1) (6).

CRIMINAL LAW – Persistent sexual abuse of victim under age of 16
years – Victim age 13 at the time the abuse started - Sentence – Persistent sexual abuse of a child – Circumstances of aggravations (relationship of trust, dependency and authority) – Sexual abuse of child a scourge to society – Stiff punitive penalty required – Appropriate sentence – Head sentence of 10 years less pre-sentence custody period.

Cases cited:

Maima v Sma [1972] PNGLR 49
Stanley Sabiu v The State (27.6.07) SC866
The State v AloisPadik (3.5.2016) Cr.No.1453 of 2014
The State v Danny Tutuve (2011) N4400
The State v EremasKepas (20.3.2007) N3192
The State v KilaDepit (19.6.2015) Cr. No. 456 of 2015
The State v Martin Willie (7.12.2012) N5170
The State-v-NdrakumPu-Uh (2005) N2949
The State v Simon Ilikis (No.2) (17.6.2016) Cr.Nos.757 & 758
The State-v-SottieApusa [1988-89] PNGLR 170
The State v Steven Siname (2009) N3908

Counsel:

Mr. L. Rangan, for the State
Ms. J. M. Ainui, for the Accused

1^st February, 2017

1. LENALIA J: The accused George Gior Kankan of Vunaiting village, Gazelle District, East New Britain Province, pleaded guilty to one count of persistent sexual abuse an offence against s. 229D (1) (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The offence was committed on five various unknown dates between June and October 2012. The offences were committed at Vunaiting village in the Gazelle District.
   

Brief Facts

2. The indictment pleads that the crime was committed five times but according to the statement by the complainant the offender sexually abused the victim for over a period of time between 2012 and 2013. The prisoner confirmed this in answer to question 18 of the record of interview where he was asked if he sexually penetrated the complainant. In answer to that question, the offender said that he would have sex with the complainant three or many times in one week. The victim V. W. T (Virginia West Toli) said in her statement to the police that the prisoner used to have sex with her about three (3) times a week. By that time she was 15 or 16 years old.
   
3. According to the statement by the victim’s biological father William Toli, when the prisoner’s wife passed on, William and his family looked after the prisoner. His children addressed the accused as “grandfather”.
   
4. The prisoner consistently abused the victim until she was pregnant in August 2013. The victim’s mother found this out after observing the change in the physical appearances and when the mother asked her the first time if she had had her menstrual period, she lied that she had had one. It became obvious to her mother that something was wrong and she asked her sometime later. The complainant decided to tell her mother the truth and she revealed that the person who impregnated her was her grand-father George Gior. The matter was reported to appropriate authorities then to the police. He was arrested and charged.
   

Addresses on Sentence

5. On his final say, the prisoner said sorry for what he did to the victim but said it was not his wish. He asked for leniency as he had paid compensation of K1, 200.00 cash and 200 fathoms of shell money. Certainly the court will consider this on sentence.
   
6. The defence counsel addressed the court on the prisoner’ antecedents including his educational background. The court does not accept part of counsel’s submission that the court should not give weight to the victim’s statement on the pre-sentence report because her statement is her expression of the offender’s revulsion of what he did to her. On mitigations counsel asked the court to consider the following factors:
   

-prisoner’s guilty plea,

-his cooperation with the police interviewing officer,

-lack of prior conviction, (has one conviction).

-prisoner age now is 74 years,

-his genuine remorse,

-the offender and victim relationship and

-the fact that her client had paid compensation.

7. Counsel submitted that, all these matters should be considered by the court, together with comments of those contacted on the pre-sentence report. Counsel asked the court consider the serious aggravating factors because of the serious breach of trust, authority and dependency. She referred to the case of The State v Ishmael Kabian (21.6.2016) Cr. No. 1431 of 2015 where the court sentence the offender to 14 years with 5 years suspended for a similar offence with similar relationship.
   
8. For the State, Mr. Rangan referred to interests of children protected by law like the Lukautim Pikinini Act of 2009. In fact, PART II of the Act beginning with s.3 to s.11 deals with underlying guiding principles of the rights of children. He submitted compensation had been paid and asked the court to consider the pre-sentence report. He asked the court to consider the prevalence of this crime and sentence the offender to an appropriate term of imprisonment.
   

Application of Law

9. The prisoner is charged with the serious charge of persistent sexual abuse by sexual penetration. Persistent sexual abuse is an offence against s.229D (1)(6) of the Criminal Code Sexual Offences and Crimes Against Children) Act because, the acts of sexual intercourse took place more than once.
   
10. The maximum penalty for the crime of persistent sexual abuse is 15 years imprisonment. Where the abuse involves sexual penetration and if it was committed more than once and there existed a relationship of trust, authority and or dependency as defined, the maximum penalty is life imprisonment. To give some highlight of the penalties for the offence of persistent sexual abuse section 229D (1) – (6) of the Criminal Code Amended states:
    

“(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 the crime of persistent abuse of a child.

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

(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relations to a particular child; and

(b) the court must be satisfied about the material facts of the two incidents, although the court need not be satisfied about the dates or the order of those occasions.

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and liable, subject to Section 19, to life imprisonment.”
(Emphasis added).

11. Papua New Guinea legislators’ intention about sexual offences against children here is very clear. The above provision differentiates between one act of sexual penetration against a child such as sexual penetration, sexual touching, or indecent acts directed at children. (See ss.229A,229B or s.229C for repeated or persistent acts of sexual intercourse. And where the act of sexual penetration was repeated, the maximum penalty is a very heavy one. It is life imprisonment.
    
12. Sexual abuse of children is a very serious matter because of the emotional and physical traumas that is caused to young children. The impact of such atrocious acts caused to children is so much to them and the community. In cases where such crimes are committed in a family environment, be it close or distant, it is breach of trust, the legislators viewed this as very serious.
    
13. This is due to the fact that breach of trust, authority or (and) dependency posed on those persons who are expected to care and mind or look after their children, such breach is so serious. It breaches the trust that children repose on their fathers, mothers, brothers, sisters, elders, grandparents and the scars left on young victims will haunt them and will linger forever in their life time.
    
14. To give an illustration of sentencing patterns, I cite some cases starting with one or two from Kibil, Duke of York Islands. In The State v KilaDepit (19.6.2015) Cr. No. 456 of 2015, case in Kibil Patrol Post at Molot, Duke of York Islands, the offender was charged for persistent sexual abuse of a 9 year old victim. The prisoner was found guilty after a trial. He abused the victim for some time until the victim’s brother and an elderly man found them out. He was sentenced to 20 years imprisonment.
    
15. In The State v Simon Ilikis (No.2) (17.6.2016) Cr.Nos.757 & 758, a case of persistent sexual abuse by sexual touching with breach of trust. The crime was committed over a period of time from 2013 to 2015. He was sentenced to 12 years partially suspended. He was ordered to serve the balance and to pay compensation to his step daughter.
    
16. In The State v Martin Willie (7.12.2012) N5170, it was a case of persistent sexual abuse with breach of trust, authority and dependency. He pleaded guilty. He was sentenced to 10 years imprisonment. In The State v Eremas Kepas (20.3.2007) N3192, a similar case. The offender was 60 years, while the victim was only 10. The penalty imposed was 12 years.
    
17. In The State v Danny Tutuve (2011) N4400, it was a trial for one count of persistent sexual abuse. It was established in evidence that, there were two separate occasions of penile penetration. The victim in that case was 9 years and the offender was 55 years old. There was a huge gap age between the victim and the man. He was sentenced to 18 years.
    
18. Then in The State -v- Ben Sakias (2011) N4238, it was a guilty plea, the offender was 28 years old while the victim was 14 years. There was breach of trust, and the girl got pregnant. He was sentenced to 12 years imprisonment.
    
19. In the past, the courts have tried to impose penalties that will deter offenders from abusing children. Obviously, such efforts are in vain and despite imposition of high penalties, high sentences have not even created any deterrent effects.
    
20. In The State v Steven Siname (2009) N3908, it was a guilty plea on three charges of persistent sexual penetration. That was the case involving the offender and his biological sister. The victim was 15 and she was impregnated. This court imposed total cumulative sentences of 28 years partially suspended.
    
21. As we can see from the above pattern of sentencing trends, sentences have ranged high because of the abuse that is taking place to our young children. The victim of this case says in her statement that she was 15 years in 2012 at the time the prisoner started abusing her. She said, she was born on 13^th November 1996. She was doing her Grade 7 when the offender commenced the abuse against her.
    
22. The Supreme Court said in Stanley Sabiu v The State (27.6.07) SC866 that Parliament had clearly spoken and legislated for the crimes of sexual abuse of children when it set penalties high for crimes of sexual penetration with a victim under 12 years, the penalty is life imprisonment. Like on this case it was sexual penetration of the victim when she was about 15 years. In the above case, the Supreme Court was dealing with an appeal against sentence for a conviction against s.229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act.
    
23. In relation to the crime of persistent sexual under s.229D (1) (6) of the Code it is also clear that Parliament has taken a similar view that those who persistently abuse children by sexual penetration, must be visited by the highest maximum penalty of life imprisonment.
    
24. Papua New Guineans have spoken very clearly through their Parliamentary leaders that PNG cannot tolerate this kind of abuse of our most vulnerable and defenseless members of our societies. It is the responsibility of the Courts to ensure that offenders who stand in the positions of trust of their children or bubus like on this case ought to be appropriately punished.
    
25. On the instant case, what would be an appropriate sentence for the prisoner? Recapping on Subsection (6) of the section charge, the maximum penalty that may be imposed for persistent sexual abuse is life imprisonment. It is also settled law that the maximum penalty is always reserved for the worst type cases: Maima v Sma [1972] PNGLR 49. In any criminal case, the actual sentences depend very much on the peculiar circumstances of each case.
    
26. I note and mention something about the guidelines on sentencing in sexual offences in The State v Pennias Mokei (No: 2) (2004) N2635 which were adopted by the Supreme Court in Stanley Sabiu v The State (supra). The Supreme Court reiterated that sentencing of offenders depends on the merits of each case.
    
27. On the instant case, the Court considers the prisoner guilty plea to the charge and made early admissions as evidenced from the record of interview. He also co-operated with police. He is a first time offender. He may have used force, because the victim could not report to her mother. The victim left school because the prisoner impregnated her and a child was born out of such relationship.
    
28. There are two serious aggravating circumstances on this case. First there was and is a very serious breach of trust, authority and dependency. The victim is the grand-daughter of the offender. The second aggravation is the fact that out of the relationship had between the two of them, a child was born. There was a very big gap age.
    
29. When a crime of sexual abuse is committed with breach of trust, it is a serious matter because “circumstances of aggravation” defines such aggravations in s.349A (e) & (f) and see also s.6A (1) (2) (a) – (h) of the Criminal Code Amended. Sexual abuse in our societies today is so common in the family circle is so popular and so prevalent. Any sexual crimes committed within the family unit are always serious.
    
30. It is a concern to this Court. It is not only against the law but against customary practices of this Nation. Such actions destroy unity and damage the reputation of the family relationship. Sexual offences committed between persons having close relationships are a very serious breach of trust, authority and dependency and it is so serious and the law views this as a very serious aggravation: The State-v-Sottie Apusa [1988-89] PNGLR 170, The State v Ishmael Kabian (21.6.16) Cr. No 1431of 2015.
    
31. The crime you committed was not a one off incident. You abused the victim for over a period of time between 2012 and 2013. You treated her like your wife when in fact she was you grand-daughter that is she is your bubu. In her statement to the police dated 26^th August 2008 she revealed that, when you asked her mother for the victim to go to your house and stay with you and your children, she came to your house and on the first night you did not do anything to her. However on the second night, you commenced sexually touched her then first had sex with her after threatening her.
    
32. Sexual intercourse on this case was persistent. The indictment pleads five instances of sexual penetration, as revealed above, the victim says in her statement that, after the prisoner first had sex with her, he continued within those two years. In each week, the prisoner would have sex with the three times could have been more.
    

Pre-Sentence & Means-Assessment reports

33. The court has read the pre-sentence and means-assessment reports. Those contacted by the Senior Probation Officer, Mr. Nigel Amos were:
    
    1. Offender himself.
    2. Ms. Anita Warwakai – the prisoner’s daughter.
    3. Ms. Noelene Eliuda – daughter in-law of the offender,
    4. Ms. V. W. T. – the victim.
    5. Mr. William Toli – Victim’s father.
    6. The Police Informant – Senior Constable Paul Bonnio – Keravat Police Station.
       
34. Senior Constable Bonnio says in his column that, the prisoner has a previous conviction for a drug related offence in the District Court. Except for the complainant, most of those contacted, said, the offender has paid compensation. The biological father of the victim says he wants more compensation.
    
35. Having considered addresses on sentence, the comments of those contacted in the pre-sentence report, the court considers the prisoner’s guilty plea, the court is of the view that, the offender had paid compensation but considering the fact that, the victim is nursing a child, the Court will order further compensation for the maintenance and up-keep of the child.
    
36. George, the breach you created between you and your grand-daughter, her family members and those of your own family line has caused a great gulf between the two of you and your love ones. I consider your guilty plea and the fact that earlier compensation had been paid. I consider a sentence of 10 years is appropriate. He is sentenced to a term of 10 years imprisonment. The court suspends 2 years from this head sentence and he shall serve the balance nine (8) years with the custody period deducted from this balance.
    
37. On further compensation, the court orders that the offender pays K1, 000.00 as compensation to the complainant. The court notes here, the victim has the right under the Child Welfare Act to claim maintenance for her child. The above payment does not bar the victim from taking out a maintenance order in the District Court for the maintenance of the child she has. The compensation shall be paid within 3 months.
    
38. The author of the Pre-sentence &Means assessment reports, the Senior Probation Officer, Mr. Nigel Amos in the Community Base Correction Office in Kokopo shall report back to the court to confirm if compensation has been paid within the six month given to pay.
    

________________________________________________________________
The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused.