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State v Pap [2022] PGNC 338; N9763 (19 July 2022)

N9763

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 720 OF 2022

THE STATE
-v-

ANDARE PAP
Ramu: Geita J
2022: 7^th,11^th,19^th July

CRIMINAL LAW – Guilty Plea - Sentence – Guilty plea – Section 229D (1) and (6) Criminal Code Act as amended- Abuse of trust, authority of dependency.

CRIMINAL LAW – Guilty Plea – Violation of fundamental breach of parents in the upbringing of children - Constitution.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Saperus Yalikabut v The State [2006] PGSC 27; SC890
The State v Amos Otto [2019] N7907

Counsel:

Francis Popeu, for the State
Noel Loloma, for the Prisoner

DECISION ON SENTENCE

19^th July, 2022

1. GEITA J: The accused Andare Pap of Kandep, Enga Province pleaded guilty to three (3) counts of sexual penetration of a child under the age of 16 years (13 years at the time of the crimes), with whom the person has an existing relationship of trust, authority or dependency.

2. This offence comes under s.299D (1) and (6) of the Criminal Code Act as amended and subject to s.19, to life imprisonment.

The Facts:

3. The facts as agreed by the prosecution and defence on the depositions for the pleas of guilty are these: -
Sometimes prior to the month of September 2021, the parents of the complainant in this matter, Stephanie Clement had left Ramu and gone to Mt. Hagen and onto Port Moresby leaving the complainant with her elder sister and her husband.

The complainant was aged around 13-year-old at that time and was doing grade 5 at the Bumbu Primary School in Ramu whilst the accused who is also from Kandep was a trusted family friend and was also living in their family home at Drai Wara in Ramu.

Sometimes on an unknown date in the month of September 2021, (between 1^st and 30^th September 2021) the accused took the complainant out of the family home and had sexual intercourse with her in the bush at their block by inserting his penis into her vagina. The complainant was warned not to inform anyone, and she did not.

On another occasion on an unknown date between the period the 1^st of September 2021 and the 25^th of November 2021, whilst the complainant’s elder sister and her husband were out doing marketing on which they relied on to sustain their living, the accused took advantage of their absence and had sexual intercourse with the complainant Stephanie inside the family house at Drai Wara. Again, the complainant was warned not to inform anyone about the act, and she did not.

Again, on another unknown occasion within the same period, (1^st September and 25^th November 2021) the accused Andare Pap took the complainant in to the bushes in the family block and had sexual intercourse with her by inserting his penis into her vagina. Again, she was told not to report, and she did not.

On the 24^th November 2021, the elder sister of the complainant saw changes in the complainant’s appearance and asked her and she revealed that the accused had been having sexual intercourse with her and she was taken to the Health Center at Gusap the next day and the matter reported to Police.

It is alleged that at all times, the accused was a close family friend and guardian in that the complainant was under his care as an adult in the house and he breached that position of trust authority and dependency.

His actions thereby contravened Section 299D (1) and (6) of the Criminal Code Chapter 262.

Allocutus:

4. The accused asked for leniency and to be placed on a short term of sentence so that he can come out and care for his five children. He expressed remorse to the victim and her family. The accused also expressed his thanks and appreciation to the Court, lawyers, and other court officials for handling his case to finality.

Antecedents:

5. No prior convictions

Pre-sentence Report:

6. The accused is aged 43 years and married with five children. He is from Kandep, Enga Province. Does not have any formal employment and relies on subsistence farming. His involvement in his community appears to be very little as no one was prepared to give an account in that regard. He gave K600 to a policeman to secure his release on bail and didn’t think that the matter would end up in court. The victim’s father admits receiving K500 from the accused, a difference of K100. It’s now quite probable that someone has pocketed the missing K100. The victim’s father is demanding

K40,000.00, 40 pigs and K3000 as ‘belkol’ or custom reconciliation. In view of his own safety and the safety of other vulnerable young girls the Probation Officer has not recommended his suitability for probation.
Aggravating Factors:

7. Huge age disparity between the victim and the accused (30 years). Such offences prevalent an abuse of trust. Persistent sexual penetration of the child.

Mitigation Circumstances

8. No prior convictions, first time offender, guilty plea and co-operated with police. Expressed remorse.

Defence Submissions:

9. In his submissions Counsel for the defence Mr Loloma submitted for a sentence between 13 – 17 years less his pre-trial custody. As the accused entered a guilty plea, he be accorded the benefit of doubt according to case authority in Saperus Yalikabut v The State [2006] PGSC. As to a comparative case The State v Amos Otto [2019] N 7907 was relied on in support of the sentencing range proposed. This was a father (40 years)/daughter (15 years) persistent sexual relations case I decided in Manus. The prisoner was sentenced to 16 years.

10. Public Prosecutor Mr Popeu submitted for a custodial sentence in view of the huge age disparity and the three instances of persistent sexual abuse and prevalence. Mr Popeu concede to the range of sentence used in the comparative case of The State v Amos Otto (supra).

11. I take note of reserving the maximum sentence for worst possible cases as decided in Goli Golu v The State [1988-1989] PNGLR 653. I also take into account his guilty plea and accord him the benefit of doubt. I also take judicial note of s.19 Criminal Code Act in exercising my discretion other than the maximum sentence.

12. In your case there were 3 recorded instances of persistent sexual abuse over a period of time, however you admitted to regular consensual sexual abuse with the hope of marrying her as your wife. The offence infringes and violates the fundamental duty of fathers and mothers to care for their children and raise them up in the manner expected by the Constitution and the Law. This duty of care is also extended to close relatives and persons who hold themselves out to be part of other families and live with them. You are therefore sentenced to 16 years in prison minus your pre-trial detention period. A further 3 years is suspended.

Court Order

13. The Court orders that:

1. You are to serve a sentence of 13 years with hard labour less your pre- trial custody period available to you.
   
2. Your bail will be returned to you.
   

Orders accordingly
_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner