Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Thomas [2005] PGNC 189; N2828 (2 May 2005)

N2828

PAPUA NEW GUINEA
(NATIONAL COURT OF JUSTICE)

CR No. 416 of 2005

STATE

V

BINGA THOMAS

LAY J.
KOKOPO

2005: 11th and 21st April
2005: 2ND May
PORT MORESBY

DECISION ON SENTENCE

Counsel:

Mr Rangan for the State
Mr Siminji for the prisoner

Criminal Law – Criminal Code s229A(1) and (3) – sexual penetration of a child under the age of 16 – sentence – defendants version of events preferred – prisoner aged 50 – victim aged 15 and some months – offence charged part of series of offences against same victim – breach of trust – prisoner treated like brother of victims father – plea of guilty - 12 years IHL - indictment must contain any allegation of "circumstances of aggravation" – uncharged circumstances of aggravation cannot be taken into account.

Facts

The prisoner pleaded guilty to one count of sexual penetration of a girl under the age of 16, The victim was 15 at the time of the offence charged. The prisoner in his Record of Interview said he had sex with the victim 44 times, all consensual and for money totaling K530 during, and after the middle, of 2003. The victim in her statement said there was some force used and several acts of penetration also took place in 2004.

Held

The proper sentence is 12 years IHL.

The 9 points for consideration in sentence set out in N2635 State v Penias Mokkie applied.

The age of the accused is a relevant consideration: John Aubuka v State [1987] PNGLR 267,7(b) in the headnote. N2336 The State v Kenneth Peter; N1849 The State v Nivi Araba; N2278 State v Moke Lepe; N2430 The State v Lohou Mau

Where circumstances of aggravation are charged in the indictment they are admitted on a plea of guilty once the Court accepts the plea and enters a conviction: SCR No.2 of 1981 Re s19(1)(f) Criminal Code [1982] PNGLR 150 per Kearney J at p.156 and R v Ebulya [1964] PNGLR 200 per Smithers J at p231

Circumstances of aggravation, being those defined as such in Section 1(1) of the Code, as distinct from those which are merely aggravating factors, which make the case one exposing the defendant to a higher maximum sentence, must be charged in the indictment: The State v Miseal Butemo [1984] PNGLR 62 @ 64 and s528(2) of the Criminal code). R v Dales [1975] QCA 329.

To resolve the conflict between the evidence of the defendant and the victim the version of events from the defendant should be preferred in the absence of sworn evidence from the victim and the defendant; Koniel Alar and Hosea Biu v State [1979] PNGLR 300 at 307 and Imiyo Wamela v State [1982] PNGLR 269 at 280 followed and applied.

The view that "it is not an element of the offence under Section 229A(1) that there was at the time of the offence an "existing relationship of trust, authority or dependency": N2606 State v Pennias Mokei (No.1) dissented from, circumstances of aggravation proven but not charged may not be relied upon on sentence: Criminal Code ss1(1), 528(2); R v Dales [1995} QCA 329; R v De Simoni (1981) 147 CLR 383; Kingwell v The Queen[1986] 60 ALJR 17

_______________________________

This decision was originally published in Kokopo on 21st April 2005. Since then I have had the opportunity of considering some authorities which were not available to me in Kokopo because of communication difficulties at that time. I am now re-publishing the decision with reference to those additional authorities.

The accused has pleaded guilty to a charge of sexual penetration of a child under the age of 16 years in circumstances of aggravation in breach of trust contrary to the provisions of s229A(1) and (3).

The facts to which the guilty plea was made are that in the middle of 2003 the accused was staying with the family of Antonia Tutu at Kadaulung No.2 Settlement, Warangoi. Antonia was a girl under the age of 16 years, having turned 15 in June 2003. The accused had sexual intercourse with Antonia. The accused, who is about 50 years old, would be looked upon by the victim as a person who would look out for her welfare.

The depositions contain the victim’s statement that there was sexual intercourse on more than one occasion, that on each occasion the accused would trip her up so that she fell to the ground, have sexual intercourse then give her money. Then in the accused’s record of interview he says he had sex with the victim 44 times during 2003 and on each occasion the victim asked for money beforehand.

The accused is 50 years old, single, his parents are dead, He has one adult sister. He comes from Simbai in the middle Ramu. He has resided at Warangoi since the late 1970’s. He has no formal education nor formal employment. He works on his own vanilla, cocoa and betel nut block on which he has constructed a permanent material house. There is no one to look after the accused’s block, his brothers live far away. He says he took the matter of the sexual intercourse with the victim to the village Committee to sort it out, but they took it to the Police.

Counsel submits that I should take into account as mitigating factors, the guilty plea, that the accused is a first offender, there was no physical injury to the victim, and that the victim did not become pregnant. The statement by the prisoner that there were 44 acts of sexual intercourse, it was submitted, should be weighed against the victim’s claim of some force and the allegation that the victim asked the accused for money, and that I should prefer the prisoner’s version that the penetration was consensual.

Counsel for the prisoner also submitted that I should view the evidence of a breach of trust with some suspicion. I pointed out to Counsel that he had allowed his client to plead guilty to a charge containing that element. Nevertheless Counsel submitted that on sentence I could take into account that the evidence to support that element was weak. In the depositions the victim speaks of the prisoner as being treated like a brother to her father. The prisoner had lived on the victim’s fathers land for 30 years, even before the victim’s father was married. I infer that the prisoner has been in the victim’s life from her birth.

The State Prosecutor submitted that a long term of years was appropriate because of the age difference of some 35 years, the breach of trust, the evidence of force and the fact that it was part of a pattern of 44 similar offences admitted to by the prisoner in his Record of Interview.

S229A reads as follows:

229A. Sexual penetration of a child.

(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) ...

(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.

Prior to the amendment to the Criminal Code by the Sexual Offences and Crimes Against Children Act this crime was dealt with by ss216, now repealed, which provided:

1. A person who

a. Has or attempts to have unlawful carnal knowledge of a girl under the age of 16 years; or

b. ......

is guilty of a misdemeanor.

Penalty: Imprisonment for a term not exceeding five years.

(2)...

(3)...

(4)...

By amending the Criminal Code to repeal s216 and enact s229A Parliament clearly intended to provide for a completely new penalty regime with respect to this offence. Parliament wants to protect children by treating sexual offences against them much more seriously than in the past. No assistance can be gained from a review of sentences in s216 cases. The penalty for sexual penetration with a child under the age of 16 years in breach of trust is now the same as the penalty for sexual penetration of a child under the age of 12. I consider therefore that there must be some correlation between the sentences imposed for those two offences.

Both Kandakasi J and Cannings J have noted that where s229A(3) applies the maximum sentence is life imprisonment, the same as for aggravated rape and for murder and that there should be some correlation between the sentences imposed for these offences because they have the same maximum penalty.1

A number of cases have been reported on sentencing under s229A .In the case of The State v Peter Lare2, on a guilty plea, a sentence of 20 years was imposed where the victim was less than 12 yrs (actually 10 years) and the prisoner 40 yrs. The child was an adopted daughter and dependant on the prisoner for her upkeep, the fact of which the prisoner would often remind her. The prisoner had two wives and a number of children. The victim was infected with a venereal disease by the prisoner. There were multiple sexual acts of various types over a period of almost 4 years. There was a serious breach of trust. There was no genuine remorse. The court considered the aggravating factors outweighed the mitigating factors.

In the case of State v Pennias Mokei No.23 the child was a little over 13 yrs. The age of the prisoner was 33 years as stated in the judgment on verdict. The prisoner was found guilty after a trial. There was no consent by the child. No long term physical injury was caused to the child. It was an isolated incident. The prisoner was regarded as an uncle and thus there was a breach of trust. There was an expression of remorse but no meaningful steps taken to demonstrate its genuineness. A sentence of 15 years was imposed.
In the case of The State v Eddie Trosty4 the victim was 13 or 14 years old, the prisoner 21 or 22 years old. The offence was committed a number of times with the victim’s consent. The prisoner claimed the victim was his girlfriend. First offence. Sentence of 6 years imposed.

In the case of The State v Kemai Lumou5 the victim was 14 and the prisoner 22 years. Conviction after trial. The victim was a very close relative of the prisoner. A bush knife and physical force were used to rape the victim although charged under s229A. The offence was committed while the victim was on her way to school. No genuine remorse, no compensation payment. First offence. Sentence of 17 years imposed.

Cannings J set out in State v Penias Mokkie a useful summary of issues to take into consideration in sentencing under s229A, which I adopt, as follows:

1. Is the prisoner a first offender?

2. Is there a guilty plea?

3. What was the age of the victim?

4. Was there consent?

5. Was there any aggravated violence?

6. Was the offence part of a pattern of persistent abuse?

7.

8. If there was a relationship of trust authority or dependency, what was its strength?

9. Has the offender shown or offered any remorse, apology, regret, or sorrow? If so, is it genuine, meaningful, timely and tangible?

10. Has the prisoner caused trouble for the victim or her family since the commission of the offence?

I only add to that list "What was the age of the prisoner?" because the age of the prisoner can be a factor in sentencing. If the prisoner is young it can be a factor in his favour6. If the victim and the prisoner are both in their teens it can be a neutral or favourable factor for the prisoner7. But if there is a large age difference between the age of the victim and the age of an older prisoner it is usually regarded as being a factor against the prisoner8 because of the influence a mature person can have on a younger person and the expectation of society that a mature person will act more responsibly; and in sexual offences that an attack by an adult on a child is more abhorrent both to the child and society.

In this case the prisoner is a first offender and there has been a guilty plea, both factors being in his favour. The victim was aged 15 having just turned 15 in June 2003 and the prisoner aged 49 at the time of the offence. This large age difference is a factor against the prisoner.

Was there consent? The prisoner did not make a claim to consent in his allocutus but in his Record of Interview he claimed that the offence was committed on 44 occasions during 2004 in circumstances of sex for money paid totaling K530, initiated by the victim. He denied having used force. There is however the statement of the victim alleging some coercion. It has been the practice of the Court to take the version of events most favorable to the accused, in the absence of evidence from the State to the contrary9 provided it is not utterly unreal. But the "most favourable version" doctrine cannot be applied if the prisoner on his plea and on his allocutus makes no challenge to any of the facts sworn to in the evidence: Public Prosecutor v Tom Ake10. For the purposes of applying this principle the allocutus includes statements made by defence counsel from the bar table: Law v Deed11. In this case Mr Siminji has asserted that the penetration was consensual. Neither party has called sworn evidence to establish the version for which they contend. I will therefore proceed on the version most favourable to the accused, namely that there was consent, as the Supreme Court held should be done in Imiyo Wamela v State12 . On the same basis I will proceed on the prisoner’s version of events that there was no aggravated violence. These are factors in favour of the prisoner.

On the prisoner’s own version of events in his Record of Interview the offence for which he has been convicted was part of a pattern of persistent abuse, which he alleges resulted in 44 separate events of sexual penetration with the victim. This is a factor against the prisoner.

An issue arises as to whether there was a relationship of trust. I have set out above the evidence and the submission from Counsel. In this regard careful attention must be paid to the opening sentence of the cited passage of Law v Deed, which reads;

It is clear that the plea admits no more than the essential ingredients of the offence..."

Now the offence with which the prisoner was charged was sexual penetration of a child under the age of sixteen years in breach of a relationship of trust. The breach of trust was a charged element of the offence to which the prisoner pleaded guilty. The subsequent sentence of Bray CJ’s judgment in Law v Deed reads:

"The plea by itself does not in itself admit any circumstances of aggravation which may be alleged by the prosecution..."

However when the circumstances of aggravation are charged in the indictment in accordance with the requirements of s528, s538 and 557of the Code as facts necessary to establish a particular offence or a particular penalty for an offence, and the prisoner pleads guilty to those specific facts and:

"...the court indicates that it finally accepts the plea as safe to act upon, as a full, free and clear and informed admission of all of the facts essential to establish the elements of the offences charged" 13

"...it has "the same effect as if it had been actually pleaded", that is it operates as an admission by the accused of the elements of the offence charged."14

I therefore reject Defence counsel’s submission that I can, after acceptance of the plea and entry of conviction, draw a conclusion from the depositions that there was no relationship of trust, when that relationship was charged in the indictment and admitted on the plea. In fact, on reading the depositions for the purpose of deciding whether or not it was safe to accept the plea I formed the view that there was sufficient evidence in the statements to support the allegation of a relationship of trust. The prisoner was treated as a brother of the victim’s father with whom he had a relationship for 30 years. The prisoner received a gift of land from the victim’s grandfather. Of course the victim would regard the prisoner as a person who would look out for her welfare and as a person who could give her direction and in whose care she would be when with him and not with her parents. However I note that this was not a father/daughter relationship, which calls for a severe penalty when breached. Nor was it a relationship of trust between blood relatives.

Whilst addressing the issue of ‘relationship of trust...’, and although the issue does not call for decision in this case I must respectfully disagree to some extent with the views of my learned brother Cannings J where his Honour said in The State v Pennias Mokei(No.1)15

"It is not an element of the offence under Section 229A(1) that there was at the time of the offence an "existing relationship of trust, authority or dependency" between the accused and the child. That term is defined by Section 6A(2) of the Criminal Code. If the accused is found guilty of an offence under Section 229A(1), the issue of whether there was such a relationship becomes relevant when determining the appropriate penalty. If there was such a relationship, the maximum penalty is increased from 25 years to imprisonment for life."

I dissent from that statement to the extent that it can be read as saying that the allegation of the relationship of trust need not be charged in the indictment for the accused to be exposed to the penalty prescribed by s229A(3).

Section 1(1) of the Criminal Code provides

(1) In this Code, unless the contrary intention appears—

"circumstances of aggravation" includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance;

It follows that allegations of facts consistent with s229A(2) (child under the age of 12) and s229A(3) (relationship of trust authority and dependency) are circumstances of aggravation within the meaning of the Code. When the accused person is called upon to plead to the charge in accordance with the provisions of s557 that charge must contain, in accordance with the provisions of s528 the offence and all of the particulars "as is necessary to inform the accused person of the nature of the charge" including all circumstances of aggravation pursuant to s.528(2):

"Subject to subsection (3) and (4), if any circumstance of aggravation is intended to be relied upon it must be charged in the indictment."

Pratt J said in The State v Miseal Butemo:16

"I am grateful for counsels submissions in connection with the problem. I think they have highlighted the fact in my mind, that not only is it proper that the "aggravated" charge should be clearly laid out in the indictment but it would be unfair for the charge not to be specifically set out. There is no distinction in my view between charging an offence under s395A and charging an offence under the various other sections of the Criminal Code where circumstances of aggravation may exist in certain situations. In those circumstances the Code makes it clear that they constitute an aggravation and thus shall be stated specifically in the indictment".

I agree with the views of Pratt J. In my view, an accused person cannot be sentenced in accordance with the provisions of s229A(2) or (3) unless he has been charged with facts consistent with those subsections. If it were otherwise the accused could be called upon to plead to a charge in complete ignorance of the fact that the State is alleging circumstances of aggravation and as a consequence he may be subject to the higher penalty contained in those subsections, which would defeat the whole purpose of s557 which is to protect the accused from being tried without being informed of the charge against him: Simili Kara v State17

Section 538 of the Criminal Code provides:

538. Offences involving circumstances of aggravation.

Subject to this Division, on an indictment charging a person with an offence committed with circumstances of aggravation, he may be convicted of any offence that is—

(a) established by the evidence; and

(b) constituted by any act or omission that is an element of the offence charged, with or without any of the circumstances of aggravation charged in the indictment.

It follows from that Section that there is no question that if the accused is charged with sexual penetration of a child under the age of 12 years, but the evidence establishes that the child was 13 years, the charge does not fail, the accused can be convicted under s.229A(1) with sexual penetration of a child under the age of 16 years. But I am strongly of the view that the converse is not true, that is an accused person cannot be convicted of sexual penetration of a child under the age of 12 if all that is contained in the indictment is a charge of penetration of a child under the age of 16 years. Nor in my view could an accused person be convicted and sentenced on the basis of s229A(3) to a potential term of life imprisonment if the indictment did not contain an allegation that there was an "existing relationship of trust, authority or dependency..." because the accused must know each element he has to defend and each of those elements must be in the indictment.

Since first publishing this decision in Kokopo I have had the opportunity of perusing a number of cases on point from the High Court of Australia18 and the Supreme Court of Queensland (Criminal Appeal Division). Most of the cases decided prior to 1995 have been considered and digested in the case of R v Dales in the Queensland Court of Appeal 19 and after a very lengthy consideration of the cases from both the common law and code jurisdictions of Australia, New Zealand and England their Honours said:

"Sentencing judges ought experience little difficulty in practice if there is unqualified adherence to the fundamental principles which emerge from the decisions of the High Court in De Simoni and subsequent cases. We will try to summarise those principles in a manner which should be adequate for most purposes:

1. Subject to the qualifications which follow:

(a) a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;

(b) common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes (cp. Merriman at p. 593, R. v. T. at p. 455); and

(c) an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.

2. An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish:

(a) a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;

(b) a more serious offence than the offence of which the person to be sentenced has been convicted; or

(c) a "circumstance of aggravation" (Code, s. 1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to which that person is exposed

3. An act, omission, matter or circumstance which may not be taken into account may not be considered for any purpose, either to raise the penalty or deny leniency; and this restriction is not to be circumvented by reference to considerations which are immaterial unless used to increase penalty or deny leniency, e.g., "context" or the "relationship" between the victim and offender, or to establish, for example, the offender's "past conduct", "character", "reputation", or that the offence was not an "isolated incident", etc.To withhold leniency by reference to offences of which a person being sentenced has not been convicted is, in our opinion, to punish that person for those offences as surely as if additional punishment were imposed by reference to those offences. A person who has only been convicted of an isolated offence is entitled to be punished as for an isolated offence, not on the basis that the only offence of which he or she has been convicted was not isolated but part of a pattern of conduct with which he or she has not been charged and of which he or she has not been convicted.

This question arises most frequently in sexual cases involving family members, and, in Queensland at least, there is now provision for a charge of maintaining a sexual relationship with a child under 16 years (s. 229B), so that the prosecution can conveniently proceed for a series of offences if it wishes to do so.

We should add that, in our view, it would be intrinsically unfair to charge a person with a single offence and then adduce evidence of other offences in a proceeding in which his or her primary concern to defend the offence charged before the jury might conflict with his or her need to meet the possibility that, if he or she is convicted of the offence charged, the judge may "convict" him or her of the other offences and treat him or her more harshly, or less leniently. "

Having considered those persuasive authorities I now consider that I was incorrect in following20 the further remarks of Pratt J in The State v Miseal Butemo to the effect that uncharged circumstances of aggravation can be taken into consideration to formulate the sentence, when if those circumstances were charged in the indictment, the accused would have been exposed to a greater maximum sentence. In future I intend to apply the prohibitions in R v Dale quoted above, in particular paragraph 2(c) because I now consider that to be the proper applications of s. 528(2) of the Code.

Returning to point 7 of the list, what was the strength of that relationship? It was the sort of relationship in which the victim would have felt safe when with the prisoner away from her parents and out of sight of others. It was the sort of relationship of which the prisoner could take advantage and breach, to gain his unlawful ends.

The prisoner said nothing about ‘sorry’ on his allocutus, nor in his Record of Interview and there is no evidence of compensation being paid. The prisoner has not caused any harm to the victim and her parents since he was charged with this offence.

Taking all of these matters into account including everything the prisoner said on his allocutus and from his Counsel I consider that the proper sentence in this case to be one of 12 years in hard labour, less time spent in pre trial custody. This sentence takes into account the aggravating features and allows credit for the mitigating features, particularly the guilty plea which has saved court time and has also saved the victim from having to give evidence. Without the plea and other mitigating factors the sentence would have been closer to that in The State v Peter Lare21

____________________________

Lawyers for the State: Public Prosecutor
Lawyer for the Prisoner: Public Solicitor