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State v Bangau [2017] PGNC 333; N7031 (26 June 2017)

N7031

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1333 OF 2016

THE STATE

V

NICK BANGAU

Kimbe: Miviri AJ

2017 : 24^th May & 26^th June

CRIMINAL LAW- Plea-sexual penetration S229A (1) CCA-victim 13 years old-repeated acts of sexual penetration-threat with bush knife-biological brother-PSR victim refusing compensation-MAR offender willing to pay compensation-protection of victim-deterrence-rehabilitation of Prisoner-part suspension-part custodial sentence.

Facts

Prisoner had repeated sexual penetration of PK 13 years old, his half-sister common mother and different fathers

Held
Pleaded guilty
10 years age difference
Abuse of trust authority and dependency
Good Probation Report and background
7 years IHL minus time in custody
3 years suspended on Probation order

Cases cited:
State v Dabu [2008] N3313
State v Dominic [2005] N2938
State v Kutetoa [2005] N2814
State v Lare [2004] N2557
State v Makata [2006] N3076
State v Samson [2005] N2799
State v Trosty [2004] N2681
The State v Apusa, [1988-89] PNGLR 170
The State v Pennias Mokei (No 2) (2004) N2635
Yalibakut v State [2006] SC890

Counsel:
R. Luman, for the State
B. Popeu, for the Defendant

SENTENCE

26^th June, 2017

1. MIVIRI AJ: This is the sentence of the court upon the brother in the sexual penetration of the half -sister.
   

Allegations

2. Nick Bangau had sexual intercourse with PK the victim who was 13 years old at that time contrary to section 229A (1) of the Criminal Code. He had sexual intercourse with her seven times. Both are from the same mother but different fathers.
   

Law

3. Section 229A states:

(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.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

Issue

4. What is an appropriate sentence in your case?
   

Application of law to facts

5. Section 229A (1) (3) is invoked here because you are blood sister and brother from the common mother but different fathers. You breached that trust and dependency in the relationship when you had repeated sexual intercourse with her. There are about seven acts and each was committed according to you consensually. She was your half-sister so the maximum sentence in your case subject to section 19 is life years.
   

Mitigation against aggravation

6. You are 24 years old a first time offender and at the time of the offence you were 23 years old. You pleaded guilty to the charge. In addition your lawyer has cited and urged for my consideration Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006) that you should be accorded favourably in the guilty plea that you have entered. That where there is dispute for example as to consent you be given the benefit of doubt without evidence so led. I do not find any problems with that submission here. You are sentenced on the basis of the facts that you have pleaded guilty to. And I take in your favour that there was consent as there are a total of seven different and separate acts of sexual intercourse between the two of you set apart by time and date.
   
7. PK was 13 years old at the time of the commission of the offence. The age gap was 10 years apart and the offence was repeated you assert with consent of the victim who is your half- sister. You saved the victim from coming to court giving evidence in front of the court and the public to relive the crime again. Not only is it a serious offence but more particularly you have breached the confidence, trust and dependency relationship in the family and in the community where you are from. Therefore your guilty plea is of immense credit to you in view of the close blood relations between the two of you. Both your mother makes this clear and says that she refuses to see you again. On the other hand you were abandoned by your parents including your mother here who is taking the easy way out once again abandoning you to your uncle your namesake who has looked after you up to now. That is evident from his willingness to stand in for you in compensation and settlement of the matter without you going to prison. To his credit he has stood in for the mother and the father. Parenting is not about giving birth and that is it, but leaves a lot to be discharged to ensure that the child is a worthy citizen in society. Your fall into this offence maybe partially due to this fact without which you would not have fallen as you did. And this is clear in the way that you have set about acquiring skills and knowledge to be a citizen in society which has been illuminated by the presentence report. I give credit to the Probation officer for the worthy discharge of the task accorded by the court. And your mother must bear part of the blame for not providing the parental care and upbringing.
   
8. You are educated to grade 10 in 2011 and did metal fabrication at Moramora Technical School and graduated with a certificate from there. You have intention to continue your education. This is a very good sign that you have vision to be a good citizen and to ensure that the upkeep in your life is by good honest hard work. That will lead to stability in the way that you live in society. If the court sent you outright to jail all these will be destroyed as sentencing is not about punishment only but also reformation of the prisoner to fit back into society as a citizen and member. I am firm that no doubt this experience has given you invaluable know how as to conduct yourself in life. You have taken the initiative to advance to where you are now. I consider that you are a young man aged 24 years old and to spend the entire prime of your life in prison must be based on proper facts and evidence warranting. That is there is no other alternative other than incarceration that the aggravation outweighs the mitigation. And that there are no extenuating or special circumstances posed to advance otherwise other than a custodial term. That is the incarceration is proportionate to what you have committed here. On the other hand the conduct of sexual penetration immersed upon young girls must not be lightly treated so that defendants walk out with no real effect upon them by law.
   
9. Here the victim has refused compensation in the means assessment report that has been compiled for my consideration in determining an appropriate sentence in your case. I start with the maximum penalty that is prescribed by section 229A (1) (3) subject to section 19 imprisonment for life. Obviously your case does not fall under the worse category and therefore drawing the maximum penalty of life years. There is no doubt given the material points of your case that I have set out above time in prison will be served but certainly not the maximum prescribed here.
   

Probation report

10. Your own mother was not happy with your behaviour. Your uncle your namesake on the other hand supported you and has indicated in the probation report to help you with the payment of any compensation that is ordered to be paid. He has requested that the court be lenient and impose a sentence within the community a sentence on Probation. This is confirmed by you the Prisoner when you say that your uncle is willing to assist in the payment of compensation. That the sum proposed of K 1000, a pig and some garden food. And request a period of 6 months to 8 months to pay up the compensation if ordered by the court.
    
11. The victim has refused to be compensated and wants you to remain in jail as she feared you. She wants that you be punished for the wrong. The victim’s assertions are supported in that the state has specifically charged in the indictment circumstances of aggravation which bring the sentence up. That you were in a position of trust, authority and dependency. You being her blood brother through your common mother.
    

Purpose of the new sexual offences Law

12. And it is also fundamental to see what is the purpose of the sexual offences law, State v Makata [2006] PGNC 59; N3076 (23 May 2006) by Justice Jalina where he imposed 20 years IHL and had this to say:
    

“Sexual penetration is a relatively "new" offence which was brought into the statute books in this jurisdiction only about 4 years ago in June 2002. The purpose of the new law was to protect children from exploitation and abuse by adults, sometimes even by close relatives, which were becoming widespread not only in towns and cities but also in villages where one did not normally expect such a thing to happen. The prescription of very high penalties reflects the abhorrence with which Parliament viewed this crime. It is the people at large speaking through their elected representatives that sexual abuse and exploitation of our children, who would be our future leaders, should no longer be tolerated.”

13. Having appreciated the purpose of the new law the question posed is, is it any indication that the new law is working in that it is deterring would be offenders or correcting persons prone to sexual indignities and indecencies?
    
14. We are in August 2017 from that initial setting of the matter 15 years ago, still with the family unit there is continued decay and abuse as here including our close knit relationship our extended relationships our “haus line, clan, tribe, and kinship”. This behaviour has not subsided since 2002. It is forever rampant and prevalent today as ever. It is very strong despite the strong punitive sentences that have been imposed examples of which I have set out in this judgment. The present case is no exception to that fact. But rather than jump into by leaps and bounds in the sentences imposed it would make a lot more sense to follow what Justice Batari said in State v Chadrol [2011] PGNC 211; N4648 (23 May 2011) where the combined effects of sections 213 and 216 were groomed into the new section 229A:
    

“To impose a sentence that as much as possible meets the seriousness of the offence, it is useful to start with the maximum prescribed penalty in mind, and next consider the circumstances of the particular case in line with the current sentencing tendency of the court for similar type offences. The use of a sentencing 'scale' or 'range' as a guide in this exercise is preferred because 'starting points' gives the impression of an inflexible sentencing option. It also makes sense to use a structure of ranges of sentences related to the variations of the particular offence most commonly encountered in practice. A sentence that falls outside the permitted range may on appeal be considered inordinately low if it is below the lower range or manifestly excessive if it is over the top range.”

He was considering what sentence should be passed upon a 16 year old who had consensual intercourse with a 13 year old girl. He settled for 6 years IHL wholly suspended.

15. I am faced with a 23 year old brother and a 13 year old sister with seven acts of sexual intercourse between the two according to him consensual. Consent is not an element of the offence and therefore whether or not she consented or not does not make any difference to what is dished out at the end in sentence. Even then whether or not there is consent or not is immaterial and set into oblivion with the relationship of blood brother and sister here, mother common to both. Human relationship our track by blood is very important fundamental fabric of society and of being human our blood line is emphasized in the increase of the maximum penalty in the case of under 12 to life years and similarly under 16 years old combined.

16. I consider in accordance with the proposition that Justice Batari makes in the case of State v Chadrol (supra) of the use of sentencing 'scale' or 'range' as a guide and I find useful help in the case of Apusa, The State v [1988-89] PNGLR 170 in this regard and I adopt and cite what his honour sets out there as helping my tasks here;-

“ Acts of sexual intercourse under s 216 between “young lovers”, that is where both parties are of a similar age but under 16 years old, would be in the lower part of the sentencing range. Also, in the lower portion of the permissible range would be those offences committed by young men on girls who are between 14 and 16 years old. When dealing with young offenders the discretions under s 19(1)(f) of the Criminal Code and the Probation Act (Ch No 381) are always relevant, and there may be cases where it is not appropriate to proceed to conviction, but simply to discharge. This is so, in my view, where young participants are involved in those societies of Papua New Guinea in which heavy courting is the norm, and the custom allows a certain amount of sexual licence amongst youngsters, even though older people may formally remonstrate and express moral indignation. Another circumstance which could lead to a discharge without conviction is where the offender is disabled, or physically or mentally handicapped and the victim was a consenting party.

The middle of the sentencing range should be reserved for those cases in which mature men offend, without any circumstances of aggravation, and the upper part of the sentencing range should be for those cases in which there are aggravating circumstances. Where there is a relationship of trust or dependency between the accused and the victim there are circumstances of aggravation. The relationship of teacher and pupil is an example. Parents put their trust in the school system when they send their children to school; they do not expect the teachers to sexually abuse their pupils. This factor is particularly relevant in those provinces of Papua New Guinea where girls have been held out of school because of traditional beliefs that schooling will disrupt a girl’s marriage prospects. Formal education is now well recognised as being a vital component in the on-going process of the liberation of women in the Third World, and the criminal law should be used when appropriate to support the State’s objectives in providing educational services to women.

There are other relationships of trust which in my view constitute circumstances of aggravation in these cases. For example, within the medical profession, the relationship between doctor, paramedic, nurse and patient. It is within this broad category of trust and dependency that offences committed by “step-fathers” or “uncles” should fall, for the relationship between a step-father or “uncle” and a young girl may be one of complete confidence and love -- and to break that bond sexually may not only subject the victim to psychological damage, but is a betrayal, a form of personal treason.

Similarly, the defilement of mentally handicapped girls and women may give rise to a breach of trust, although it is now recognised that the handicapped have the right to a sex-life in the same way as all other persons over the age of 16 years. This is a difficult area because there has been a great deal of change in community attitudes since the late nineteenth century when the Criminal Code was formulated.

In summary, the lower portion of the range would go up to about 20 months; the middle of the range would be between about 20 months and 40 months; and the upper portion of the range would be between 40 months and 60 months.”

17. Applying the categories that Acting Justice Brunton sets out in Apusa, The State (supra) to the facts of the case before me, she is 13 years old and he is 23 years old. A young man who is the blood brother. It is serious in view of the relationship of trust, authority and dependency. A Probation and means assessment report has been furnished. In the latter report he is able to pay K1000 in cash, a pig and some garden food to the victim. She on the other hand refuses compensation and wants him to be sent to jail. The means assessment report is favourable to him. This is on top of the fact that he has pleaded guilty to the charge knowing the consequences in law.

18. In the Probation report he says that he has two blocks of cocoa and coconut. He makes K20-30 from sale of cocoa. In copra he earns K 300 to K400. He says he will change and become a law abiding citizen. He is a member of the Catholic Church. His uncle took him in and has raised him when his mother abandoned him for the new marriage from which the victim came into being. Once again his uncle has come to his aid. His mother has abandoned him. He has been assessed as a suitable candidate for probation and has advanced in his learning to be a good citizen.

19. Apusa, The State (supra) was out of the old provision of section 216 and 213 of the Code. I am here considering section 229A (1) (3) where the maximum sentence is no longer 5 years but of life years. Which is the expression of the legislature that the sentencing must be increased in order to address the lack in address in sentence in the previous prescribed penalty.

20. It would be comparable to consider recent cases under that provision to shed light on an appropriate sentence here before me. Before Justice Cannings in State v Samson [2005] PGNC 160; N2799 the offender was 17 years old who sexually penetrated a 13 year old girl. He pleaded guilty the charge under section 229A (1) of the Code there was no relationship of trust, authority and dependency and a pre-sentence report favourable to him was placed before the court who considered 5 years IHL but suspended 3 years on a Probation order and ordered 2 years IHL in jail. Here I have a favourable presentence report but there is a breach of trust, authority and dependency. It means part suspension will not take account of the breach of trust authority and dependency. The sentence must be suspended backed by proper basis presented not without.

21. In State v Dominic [2005] PGNC 35; N2938 the prisoner was 17 years old and he pleaded guilty to sexual penetration of a 14 year old. The court sentenced him to 4 years IHL, suspended 2 years and 2 years was ordered to be served in jail.

22. In State v Solo [2005] PGNC 179; N3165 (22 December 2005) the victim was aged 15 years and 2 months old, whilst the prisoner was about 22 years old. He pleaded guilty to sexual penetration under section 229A (1). The age gap was 6 years 10 months. It was consensual intercourse. There were no injuries. Five (5) years IHL was imposed less time spent in pre-trial custody which was 1 year and 4 years which was suspended on a probation order. He had a good probation report recommending a non-custodial term.

23. Almost similar material facts in State v Trosty [2004] PGNC 103; N2681 Justice Kandakasi imposed 6 years IHL upon a guilty plea to sexual penetration of a 15 year old by a 21 year old man who had pleaded guilty he did not suspend any time.

24. In State v Lare [2004] PGNC 218; N2557 it was a persistent sexual abuse by a 40 year old man of a 10 year old girl that he looked after as his own daughter. He abused trust, authority and dependency. He had two wives and committed various acts of indecency that eventually ended up in sexual intercourse with her. He was sentenced to 20 years IHL.

25. In State v Kutetoa [2005] PGNC 137; N2814 the prisoner was a 39 years old stepfather and the victim was 10 years old. The court imposed 17 years IHL on a guilty plea to sexual penetration under section 229A.

26. In The State v Pennias Mokei (No 2), (2004) N2635, The offender uncle of the girl was aged 33 and charged with one count of sexual penetration of the victim the girl who was aged 13 years old. The court imposed 15 years IHL.

27. In State v Dabu [2008] PGNC 76; N3313 (20 March 2008) the prisoner was a 45 year old man who told a 13 year old girl to chase out a dog in a warehouse. She went in, he followed inside asked her if he could put his penis into her mouth she agreed. He did so and was caught by the security guard who reported subsequently ending in court. He pleaded guilty paid compensation there was no injury but the age gap was 32 years. The court sentenced him to 6 years IHL with the period in custody and balance ordered to be served in jail.

28. All the cases above are 2004 and 2005 cases with one a 2008 case despite the stern sentences that were passed there up to the present, the offence is ever prevalent as ever. There is no deterrence as a result of those sentences. In other words despite the sentences imposed there is no decrease in the offence. Further what comes out of all these cases is that if the age gap is large the penalty will increase if the act of sexual intercourse and other indignities and indecencies are persisted over and over, if the mental and psychological health of the victim is violated over and over and as a result endures in that child, a long custodial term is imposed. And if there is existing relationship of trust and authority, if there is pregnancy or disease as a result of the action by the defendant or there is persistent abuse, the penalty will increase. The suspension of sentence is always at the lower end when the matter is not as serious for example a boyfriend girlfriend situation and the age gap is not as large compared.

Present Case

29. Here is a case of 23 years old at the time of the offence upon his half- sister who is 13 years old the age gap is 10 years difference. Both of whom are born from the same mother but different fathers. He pleaded guilty to the charge saving her from coming into open court and reliving the experience of shame while giving evidence before strangers on the matter. The plea is therefore significant. He has a favourable presentence report and a means assessment report and very good background. Yes there is breach of relationship, trust authority and dependency but the fact is that he is a young man not experienced in life but has got a good education that is promising a good life for him which will be forfeited with a long custodial term. It seems as I have found that you did not have good parents by your side to guide you along, you were depended on your uncle who has voiced to help you out whereas your mother left you when she got married to the father of your half-sister. Again here she has washed her hands off from you. In the early part of this month I sentenced a man to 10 years because he raped his own first cousin. There the probation report together and the means assessment report were all sourced from the prisoner. It could not be verified so as to allow for a part custodial and non- custodial sentence. It is the practise of the court in accordance with law that proper material verified must be placed before the court to be swayed in a certain direction on a matter that is before it. He was 20 years old and she was 14 years old.

30. The mitigating outweighs the aggravating features of the case and the time that you have spent in custody no doubt will be lesson well learnt to observe the law and I take that into account in this sentence that I now pass upon you. For the crime of sexual penetration contrary to Section 229A (1) (3) of the Code committed against PK the victim who was 13 years old your half-sister you are sentenced to 7 years IHL. I deduct 1 year 1 month 2 weeks 1 day from that leaving 5 years 10 months 1 week 6 days IHL to be served.

31. Of that you shall serve a further 2 years 10 months 1 week 6 days IHL in jail. And in the exercise of my discretion under section 19 of the Code I suspend the remaining 3 years on Good Behaviour bond for 3 years on conditions.

32. You shall enter into and be on probation for 3 years on the usual terms under the Probation Act with further orders that:

(i) You shall within 48 hours report to the Probation Officer;

(ii) You shall perform 4 hours of community work at a worksite to be approved by the CBC Office;

(iii) You shall keep the peace and be of good behaviour at all times;

(iv) You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;

(v) You shall attend church every weekend for service and worship whilst on probation;

(vi) You shall undergo counselling from your local Priest for a number of times as may be determined by the counsellor;

(vii) Within 4 months you are to reconcile and compensate PK the victim as follows:

K 1000 in cash

One mature or adult pig valued at K1000

Garden food to the value of K400

(viii) The reconciliation and compensation payment are to be attended and witnessed by the Probation Officer, Station Commander of Talasea Rural Police Station, the Arresting Officer, Chairman of Dami Village Court and Village Court Officials;

(ix) The occasion for the reconciliation and compensation payment is to be recorded and a report filed at the National Court Registry by the Probation Officer;

(x) The Probation Officer shall file a report on the responses and progress of the probationer every six months with the first report due on 9^th February 2018 and at any other time or interval as the National Court may order upon application;

(xi) 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.

(xii) These orders shall be listed for mention on the call-over in 9^th August, 2022.

Ordered Accordingly,

Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Defendant