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State v Kesu [2006] PGNC 208; N5450 (20 June 2006)

N5450

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 685 OF 2004

THE STATE

-v-

APOLO KESU

Lae: Kirriwom, J
2006: 20, 21 And 23 February & 20 June

(No.2)

CRIMINAL LAW - SENTENCE – rape – multiple counts – child victim – father rapes step-daughter on more than three occasions - offence committed prior to Criminal Code (Sexual Offences and Crime Against the Children) Act 2002 and after the act came into force – essential to plead circumstances of aggravation in the indictment – deterrence sentence called for – prevalent offence – totality principle – sentenced to 24 years IHL.

Facts

Prisoner was charged with four counts of raping his own daughter when she was aged 10 years old over a period of 10-11 months at Ramu Sugar at the family home during the day while the mother who worked for the company was at work.

There were very serious circumstances of aggravation not only alleged but also adduced in evidence which the indictment did not plead, however, the court treated the case as one of rape simpliciter, in respect of each count he was found guilty of, notwithstanding that two of the three counts took place before the Criminal Code (Sexual Offences and Crime Against the Children) Act 2002 came into force, and sentenced the prisoner to a total 24 years imprisonment in hard labour.

Cases Cited and referred to:

The State v. Binga Thomas [2005] N2828
The State v. James Yali [2005] NC N2989
The State v. Lucas Benjamin Urareo (No.1) [2005] N3009
John Aubuku v The State [1987] PNGLR 267
The State v. Luke Siban (No.2) [2004] N2566
The State v. Moses Jafisa Winga (No.2) [2005] N2958
The State v Thomas Angup [2005] N2830
The State v Saperus Yalibakut [2005] N2957

Counsel:

Mr. N. Miviri, for the State
Mr. M. Mwawesi, for the Prisoner

SENTENCE

20th June, 2006

1. KIRRIWOM, J: The prisoner Apolo Kesu appeared before me charged with three (3) counts of rape and one count of sexual penetration of a child which was preferred in the alternative. The charges were brought under the Criminal Code (Sexual Offences and Crimes Against the Children) Act No. 27 of 2002 which amended the Criminal Code provisions relating to sexual offences generally and aimed at according greater protection to child victims of sexual abuse by adults in position of authority and trust to such victims. This protection is accorded to both male and female child victims, there is no gender bias.

2. The charges against the prisoner were brought under section 347(1) and section 229A(1) of the Criminal Code as amended by the legislation referred to earlier. Both sections provide:

"347. Definition of rape.

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

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) 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."

3. After a trial that lasted two (2) days in which two (2) witnesses were called by the State which were the Victim and the Medical Practitioner who examined the victim and the accused who was the only witness in the defence case, the Court found the prisoner guilty on all counts but convicted him only on the three (3) counts of rape.

4. The prisoner was administered the allocatus and he spoke on his own behalf which I have noted and I will be addressing my mind to the prisoner's words later in the judgment. Following his own address, Counsel for the prisoner requested for a Pre-Sentence and a Means Assessment Report to be obtained first before Counsel could address the Court in mitigation of penalty. The request was granted and the case was adjourned to 12th April 2006.

5. Since the Court's decision on the verdict, I have read the judgments of Lay, J in The State v Binga Thomas [2005] National Court Judgment N2828 and the decision of Cannings J in The State v James Yali [2006] National Court Judgment N2989 both of which address two (2) fundamental legal issues. The first is National Court's power to impose sentences before the amendment No. 27 of 2002 of the Criminal Code came into force and the sentences to be imposed since the amendments became effective. The new law ie Sexual Offences and Crime Against the Children Act 2002 came into force in April of 2003, thus the penalty to be imposed would be as provided under the repealed law. This would mean that in the instant case, the maximum penalty for rape that was applicable in respect of Counts 1 and 2 at the times these offences were perpetrated is life imprisonment as they took place before the amendment became effective in April 2003.

6. In respect of count three (3), it is not clear and there is no evidence as to which of the two (2) events occurred first, the coming into effect of the amendments or the alleged acts of rape in April 2003. Unless the correct date is known, it can never be certain whether rape was committed before or after the Law changed. For this reason the Court must give the benefit of the doubt to the prisoner which means that for purposes of penalty, the new law must apply and following the same argument in the cases I mentioned including the cases of The State –v- Binga Thomas (supra) and The State –v- James Yali (supra) the Courts can only impose sentence for rape simpliciter where the indictment does not plead circumstances of aggravation.

7. In my judgment on the verdict I tried to address this very aspect by distinguishing a single act of rape with multiple acts of rape committed against the same victim over a prolonged period of time on unknown and unspecified dates. Where the victim is held against her will and subjected to forced sexual intercourse on different occasions amounting to several counts of rape protracted over a prolonged period, rape in this instance is anomalous to a continuing offence. In such instance, there is no need to specifically plead each specific circumstance of aggravation suffice that the indictment sets out the different counts of rape committed upon the victim by the prisoner.

8. In this case neither counsel alerted me to the fact that counts one and two fell outside the new Sexual offences law and therefore the maximum penalty applicable for rape is life imprisonment. In The State –v- James Yali [2005] NC N2989 the trial judge was bound to impose below the maximum penalty under s.347(1) which is fifteen (15) years and therefore imposed twelve (12) years because the indictment failed to plead circumstances of aggravation, penalty for which is life imprisonment as provided under s.347(2). This was because the offence of rape was committed on 14th October 2004 well after the new sexual offence law has been in force. The onus was therefore squarely on the State to lay appropriate charge if it was minded to rely on the circumstances of aggravation which attracted heavier penalty.

9. I have since received from the Community Based Corrections in Lae a Means Assessment Report (MAR) and a Pre-Sentence Report (PSR) as requested by Counsel for the prisoner. MAR states that the prisoner's family members at Butibam Village are willing to help pay compensation to the victim for a sum of K2,500. PSR states that the prisoner is unrepentant, uncooperative and unwilling to acknowledge the verdict of the Court and as such is not a suitable candidate for supervision by CBC.

10. I will discuss the question of compensation and its appropriateness in cases of this nature separately in the judgment. But firstly I direct my mind to the prisoner's reaction to and non acceptance of the implication and effect of the Court's verdict. What has been reported in both MAR and PSR by CBC officer Mr. Jackson Kwam was pretty obvious following the prisoner's conviction on 8th March 2006. As explained in the allocatus, the prisoner appeared in this trial overly confident of walking out of this Court room triumphant and victorious as he stated in Court as he believed there would be no evidence tendered in this trial sufficient to convict him for these very serious charges. He therefore did not expect to be going to jail as he never entertained the thought at all until the verdict of the Court was pronounced. It is therefore not surprising that the prisoner continues to protest his innocence and would not even express remorse for his actions as found by the Court on the overwhelming and uncontroverted evidence presented by the State.

11. The prisoner's reaction is not unexpected. It is not an unusual show of one's struggle to maintain his social status and reputation or general standing in the community. The prisoner is regrettably not the first and the only parent to find himself caught in this humiliating and disgraceful situation and certainly not the last. The amendment of the Criminal Code was necessitated by the fact that parents especially fathers sexually abusing their own children was to some extent a prevalent offence and increasing at an alarming rate. While the prisoner can twist and turn as he pleases to shake of the blameworthiness of what happened to his daughter, he cannot undo the conviction recorded against him based on his daughter's evidence by refusing to accept the reality, only an appellate court can if he succeeds in his appeal. That is his right under the Constitution and which he no doubt is already contemplating seriously.

12. Judges like all mortal beings, are not infallible and are prone to err in their deliberations. If I have erred in my judgment, the appellate Court will decide that. But until that happens, right or wrong as one may perceive a judgment of the court, he is bound to obey it and accept the consequences that flow from the verdict, in this case, the punishment that the Court metes out or imposes.

13. It is not an easy task and it is in fact the most difficult task for a sentencing judge to send someone to prison and more so when punishing a father-cum rapist found guilty of offences of sexual immorality against his own daughter. It is very unpleasant and there is no joy or happiness. Where does the sentencing authority strike the balance between doing justice to the victim who is scarred for life and will never be a normal child again as long as she lives and imposing a just and fair sentence on the convicted offender. The new sexual offence law also tried to address this aspect of the Criminal Law on the plight of the victims of sexual abuse by providing for victim impact statements that the prosecution is required by law to pursue, obtain and present to the Court when addressing the Court on sentence under the newly introduced section 21A of the Criminal Code which provides in subsection (1) that for the purpose of determining the sentence to be imposed on an offender, the Court shall consider any statement that may have been prepared..... of a victim of the offence describing the harm done to or loss suffered by the victim arising from the commission of the offence.

14. Hopefully there will come the time soon when the Office of the Public Prosecutor will apply some meaning to some of these hollow provisions in the Code by directing prosecutors and his administrative machinery to enforce these laws for the fulfillment of the wishes of the Legislature.

Although I have not been presented with a separate victim impact statement as prescribed under section 21A, as none, I would imagine was sought and obtained, the last sentence in the medical report (Exh.4) compiled by Dr. Kalana where he stated 'The Subject looked psychologically traumatized the fact (sic) she needs counseling for (sic) in her lifetime' is self-evident of the fact that the victim suffered psychological trauma that will haunt her for the rest of her life and she will need continuous counseling to maintain any normal lifestyle. Full impact of her suffering will never be known without any recent and appropriate expert's opinion from a psychologist.

15. Therefore, while the prisoner can continue to maintain his innocence, one thing that he failed to do was deny that his daughter not only made up the story about him, but she also did not suffer the injuries she allegedly sustained from his forced sexual abuse of her. He could have argued that she also made these all up. If the prisoner had not tendered any credible evidence that contradicted the evidence of injuries to the vagina as reported by the doctor, what or who could have caused them when (he) the prisoner maintains that he did not cause them. There is no other male person in the house besides him during the period in question. And there is no evidence as I have already found that somebody else could have been responsible and he is being blamed for reasons known to the victim. The prisoner had not in his case provided adequate explanation to cast serious doubts on the truth or otherwise of the victim's testimony combined with the corroborative evidence of Dr. Kalana. His persistence in his innocence is a far cry from reality which is now a foregone conclusion.

16. This is a bad case of sexual abuse of a child by an adult, be it a father, uncle or any other close relative that has come before me. I do not know whether the prisoner was driven by sexual desires or sexual lusts that led him to gratify himself on the purity and innocence of his own daughter when he first started on this campaign of sexual exploitation of his own child. The number of times he raped her inside the family home vaginally and once through her mouth were he forced her to swallow his semen, demonstrates evidence of hatred or act done in disdain or dislike of somebody or in revenge for something. The victim was barely eleven (11) years old when she was forcefully abused physically and psychologically when she was subjected to sexual contacts and a bizarre sexual conduct by her step-father to which she unwillingly submitted out of fear of her life and that of her mother.

17. The prisoner told the Court in the allocatus that he was worried for his children who were still quite young and with their mother in Ramu Sugar where she was employed. He feared that she would not look after the children well because she had 'drinking problem'. Surprisingly I note in the PSR submitted by CBC in which the wife Monica Salangia is quoted describing the prisoner as a good father and husband, but she said he 'drank too much'. So by their own judgments of each other, it is not difficult to see that this is a family that was made up of both mother and father who had problem with drink. When you have such a family of father and mother on the brink of drink, there is bound to be instability, disloyalty, disharmony in the house and frequent domestic upheavals. There is little wonder that the prisoner and his wife maintained semi separate lives albeit under the same roof.

18. There is no evidence before me that at the times the prisoner assaulted the victim and raped her, he was under the influence of liquor. If he was, that would not be surprising because an alcoholic father is capable of any unimaginable things, that under normal circumstance a sober or normal father would be repulsed by it let alone think about it. Sadly the sudden realization of the gravity of his wrong doing is slowly sinking in to the depths of his conscience and his reaction is not surprising.

19. As far as the prisoner's antecedents are concerned, he comes from a very large family of nine (9) children and he is the 7th born of three (3) boys and six (6) girls. He was born to his parents from Butibam village Lae where he attended and completed primary education at Amba Community School and went on to complete Grade 10 at Busu High School and Grades 11 and 12 at Passam National High School. He enrolled at the University of Papua New Guinea as First Year Law Student in 1983 but failed to complete his studies and returned home. From 1987 to 1996 he was employed by Ramu Sugar Ltd as Senior Personnel Officer.

20. Now aged 41, he was attending Divine Word University pursuing diploma studies in Resource Management when police arrested him on 19 March 2004.

21. At the times of these offences the prisoner was married to one Monica Salangia, an employee of Ramu Sugar Ltd and they all lived together at Ramu. The victim in this case was like their first born child (now 15 year old) although she was the product of Monica Salangia's former relationship with another man prior to her marriage to the prisoner. Nonetheless, the prisoner regarded the victim as his own daughter. From their union, they have six (6) children ages ranging from 13 to 4 years. The eldest is Dominic now 13 and attending Amba Demonstration School doing Grade 7, Wallace 12 years, Ellene 10 years old, Christine 8 years, Peter 6 years and Rudolph 4 years. Except for Dominic, all other children presently live with their mother at Ramu Sugar.

22. On behalf of the prisoner it was submitted in mitigation of penalty that I consider his prior good record. In fact this is the only good thing that can be said in his behalf. However, when this factor is weighed with all other factors that are against him, it simply fades into insignificance. It was also submitted that the prisoner committed these offences during the period of marital crises. I cannot accept this as a mitigating factor. Whatever crises he had in his marriage with his wife, that is a problem between him and his wife. It did not provide him with an excuse to bring misery upon another human being be it his own child or somebody else. But that vacuum between him and his wife during the period of their marital crisis provides some explanation for his actions and abuse of his step-daughter, his wife's child from another relationship. When this is viewed as revenge, it is an aggravating factor against the prisoner.

23. The following aggravating features of this case clearly call for a strong
punitive deterrent sentence:

1. Breach of Trust, Dependency and Authority.

He was a mature man in his late 30s and the step-father of the victim. He raised her when she was small like his own child and she looked upon him and depended on him for security, love, comfort and support like all other children expect from their parents. He breached that trust between parent and child. He violated and defiled her in the most intimate way, even forcefully engaging her in oral sex at such tender age of eleven (11) when she had no idea about sex and sexual morality.

2. Repeated Sexual Acts over prolonged period of time.

The victim counted up to a total of six (6) occasions when the prisoner took advantage of her and violated her. On the first occasion she bled from the forced penetration of her vagina apart from experiencing pain. Subsequent acts could have been less painful but "the loss of hymen, loss of V shape of posterior vagina and multiple thrush scars from perinea tears caused by in and out penile thrust, force and pressure" as described by Dr. Kalana (see Exh.4) show clearly that the victim would have been badly traumatized by these repeated sexual assaults over a period of ten (10) months and she lived with the ordeal until she went to Madang and she revealed her traumatic experiences to her aunt.

3. Victim forced to re-live the experience.

The prisoner was entitled to have his day in Court and it was the duty of those who accused him of crime to prove his guilt. This is the adversarial legal system that we have adopted on Independence so the accused carries no onus of proving his innocence or making it easy for the prosecution in the presentation of its case by admitting or pleading guilty. However, when a person is convicted of a crime in a Court of law, one of the most effective mitigating factors is the prisoner's plea of guilty. There are a number of reasons for this. First, it shows the prisoner's sincerity and readiness to accept his blameworthiness. Second it saves the State time and money from running a trial and calling witnesses because logistics of running a trial cost lots of money. And in sexual offence cases, plea of guilty saves the victim from the trauma of having to appear in Court and live through the sordid experience by repeating in open Court in front of a large audience of what happened to her at the hand of her molester. And this experience gets more painful and traumatizing when the victim is a child and her alleged molester is her own father or another close relative or family member. In this case the victim broke down several times during the course of her testimony. I do not know if the Court would have elicited any evidence from her at all had the Court not been innovative enough to apply the Special Measurers provided under Section 37B of the Evidence (Amended) Act 2002 (No. 14 of 2002) by erecting a make shift cardboard wall directly in front of the witness box which prevented direct eye-to-eye contact between the victim and the prisoner in the dock on the opposite side of the Court room.

4. Lack of Remorse

The prisoner is persistent in pleading his innocence of these heinous crimes he was convicted of. As the consequence he has not even expressed an apology or remorse towards the victim. He still cannot understand why his daughter had fabricated this story against him. These protestations are further manifested in his four (4) paged letter dated 24th March, 2006 to the Community Based Corrections Officer for purposes of Pre-Sentence Report. Neither the PSR nor the Means Assessment Report serve any useful purpose but they were ordered on request of the prisoner's lawyer. Although the prisoner has not asked to compensate the victim, his relatives have however expressed willingness to pay compensation for K2,500. This gesture will mean nothing and can have no mitigating effect on sentence if it is not done from within the heart.

24. Counts 1 and 2 carry maximum sentence of life imprisonment. In respect of Count 3 the maximum penalty, according to the way the
charge was framed, is fifteen (15) years imprisonment for the reasons I expressed in the judgment on verdict and conviction.

25. Rape is a violent crime against women. When a child becomes a victim of rape, that is an aggravated rape. When the victim is the child of the attacker, that is a further aggravation to the offence that requires no specific pleading in black and white to bring out that circumstance of aggravation. It is common sense and I think this is what Manuhu, AJ (as he then was) was trying to say in The State v. Lucas Benjamine Urareo (No.1) [2005] N3009(13/04/05).

26. The Supreme Court in John Aubuku v. The State [1987] PNGCR 267 sets out guidelines to be considered as appropriate to sentencing for rape. They are as per the head-note:

(1) the offence is a serious crime which is to be punished by an immediate punitive custodial sentence other than in wholly exceptional circumstances;

(2) for rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point;

(3) for rape committed by two or more persons acting together, or by a person who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position or responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years;

(4) for rape committed as part of a concerted campaign, where the accused represents more than an ordinary danger, a sentence of 15 years or more may be appropriate;

(5) for rape committed in circumstances which manifest perverted or psychopathic tendencies or gross personality disorder, and where if the accused is likely, if at large, to remain a danger, a life sentence will not be inappropriate;

(6) where any one or more of the following aggravating factors are present the sentence should be substantially higher than the suggested starting point;

(a) violence over and above the force necessary to commit rape;
(b) use of a weapon to frighten or wound the victim
(c) the rape is repeated;
(d) the rape has been carefully planned;
(e) the accused has previous convictions for rape or other serious offences of a sexual or violent kind;
(f) the victim is subjected to further sexual indignities or perversions;
(g) the victim is either very old or very young;
(h) the effect upon the victim, whether physical or mental.

(7) matters which may be relevant to mitigation include:

• (a) a plea of guilty:
• (b) the age of the defendant: and
• (c) the degree of involvement of the defendant in the planning and carrying into effect of the crime;

but do not include:

(d) the fact that the victim may be considered to have exposed herself to danger by acting imprudently; and
(e) the previous sexual experience of the victim.

27. The Supreme Court said at p.268:

'We believe that rape is a very prevalent offence in Papua New Guinea and women in this country view rape with abhorrence... the physical consequences of rape are severe. There is the physical harm occasioned by the intercourse and associated violence or force. There is the emotional and psychological trauma. The woman feels violated and degraded. There are the continuing feelings of insecurity, the painful memories and the fear of venereal disease or pregnancy. Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim. Furthermore, rape involves the abuse of an act which in its right context, is a beautiful expression of love'.

28. But the guidelines on sentencing in Aubuku's case have been rejected by the Supreme Court in recent cases as out dated and sentences for rape have since increased dramatically. Even the amendment to the Criminal Code by the Sexual offences and Crime Against the Children Act 2002 demonstrates this quite clearly as evident from the increased penalties for sexual offences of all kinds especially those against children.

29. In the recent case of The State –v- James Yali [2005] N2989, Cannings, J imposed a sentence of 12 years on the prisoner. The prisoner raped his sister in-law who was only 17 years old in the office of the Governor for Madang on the premise that the maximum imposed by law under s.347(1) was imprisonment for 15 years since the 2002 amendment to the Criminal Code.

30. In The State –v- Lucas Benjamin Urareo (No.2) [2005] N3008 Manuhu, AJ (as he then was) imposed sentence of 15 years upon a father who raped his fourteen (14) year old daughter. His Honour said:

'Rape is a prevalent offence which calls for deterrent sentence. The courts have expressed this for many years. Rape is a violation of another person's privacy, especially women, who deserve the care and protection of their male counterpart. Rape of one's own daughter is worse: it is immoral and offensive to God'.

31. In The State –v- Luke Sitban (No.2) [2004] N2566 the prisoner who raped a 10 year old girl as she was walking home after school where he was convicted following a trial, had no prior conviction, no physical injuries on the victim, no customary compensation was paid and no remorse expressed was sentenced to seventeen (17) years in hard labour.

32. In The State –v- Moses Jafisa Winga (No.2) [2005] N2958 where the prisoner raped his niece on two separate occasions by threatening her with a bush knife in her bedroom was sentenced to a total of 27 years imprisonment.

33. Sentences imposed in recent times for rape and other sexual offences against women and girls below sixteen years have been in the increase such as those cited above and in cases like The State v Thomas Angup [2005] N2830 where Lay J imposed 20 years on the prisoner for sexual penetration of a child under sections 229A and 229B of the Code. This was a guilty plea where the prisoner admitted to repeated sexual abuse of the victim over a period of six years. The victim became pregnant before she was even 16 and gave birth to a child. She was the daughter of a family whom the prisoner had very close association with for many years and who regarded him as their extended relative and the victim trusted and depended on him. He abused that trust.

34. In The State v Saperus Yalibakut [2005] N2957 where an uncle pleaded guilty to sexual penetration of his niece then under the age of 16 years where no physical injuries were sustained, the prisoner was sentenced to 17 years imprisonment.

35. In the light of these sentencing precedents, when I examine the seriousness of this case, I find that aggravating circumstances far outweigh whatever mitigation in favour of the prisoner for the reasons given. He abused, violated and defiled his own daughter by law in the most disgusting and unparental manner over a period of 10 months without any feeling of regret or concern for her purity and treated her like a sex object when she was not even capable of reciprocating at all because of ignorance of what he was doing to her. She was his dependent and he provided her parental security and she trusted him as her father. He breached that trust and responsibility towards her.

36. He is not an unsophisticated father. He was reasonably educated to understand right and wrong of his action. People of his caliber must be expected to avoid this kind of trouble because it totally demeans the intelligence of all educated right thinking men married to educated women with children who grow up in modern semi-Western lifestyle and upbringing. It is an insult to all men of good standing. Unfortunately it has become a growing concern in the community today that this type of sexual abuse of children by their own fathers of good standing or close relatives are becoming quite prevalent every where in this country.

37. In all the circumstances of the case, I sentence the prisoner as follows:

1. Count One: Twelve (12) years imprisonment in hard labour

2. Count Two: Twelve (12) years imprisonment in hard labour to be served cumulatively with eleven years for Count One.

3. Count Three: Ten (10) years imprisonment in hard labour to be served concurrently with Counts One and Two.

38. The prisoner shall therefore serve a total of twenty-four (24) years imprisonment less time spent in custody since conviction on 8th March 2006 which is about three months one week and five days to be correctly reflected in his Warrant of Commitment.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence