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State v Esrom [2006] PGNC 53; N3054 (13 April 2006)

N3054

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.254 OF 2006

THE STATE

-V-

TIAMA ESROM

KOKOPO: LENALIA, J.
2006: 10th & 13th April

CRIMINAL LAW – Sexual offences – Sexual penetration of minor – Aggravations – Existing relationship of trust, dependency and trust – Penetration of minor and underage child – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

Cases cited.
The State v Penias Mokei (2004) N2635
The State v William Patangala CR.NO.800 of 2004 (22.2.06)
The State v Mitige Neheya [1988-89] PNGLR 174

Counsel:
Mr. L. Rangan, for the State
Mr. M. Peter, for the Accused

13th April 2006.

LENALIA, J: The accused pleaded guilty to one count of sexual penetration pursuant to s.229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 aggravated by an existing relationship of trust, dependency and authority and that at the time of the offence, the victim was age nine (9) years.

The brief facts of this case is yet another very sad example of how sexual abuse of a little child at the hands of an elderly person who was at the time of this offence between 50 and 60 years whilst the victim was only nine (9) years old.

In her statement dated 23rd December 2005, the victim Salome Watutia states that on a date in September 2005, about mid-day, the accused called the victim into the kitchen owned by Leonard Martin and when she came, he asked the victim to lie down on the floor. She obeyed the accused and once she was on the kitchen floor, the accused got on top her and opened her legs and sexually penetrated her.

A villager by the name of Waula Martin says in his statement that, about 12 midday on an unknown date in September of 2005, he was scratching coconut for purposes of cocking when he heard the accused called out to the victim. After he had seen the victim walking into the kitchen, he got suspicious that the accused might do something bad to the prosecutrix. Martin knows that the accused has an history of sexual abuse of other children in the village including the accused’s own daughters.

Martin came to the kitchen where the accused and the victim were and peeped through a hole on the wall to see what the accused doing with Salome. To his surprise, it was like watching a movie when he saw the accused penetrating the victim. After he had seen them, he walked over to his wife and told her about the sad story of what the accused was doing to Salome.

Martin’s wife Catherine Tita immediately called out to the victim. The call came straight after the accused had released his sperm. She immediately got up and attended to the call by answering and walked to where Catherine Tita was calling. When she was asked what the accused had done to her, she revealed to the couple that, the accused had had sexual intercourse with her. She was sobbed when she was talking. The matter was reported to the parents, community leaders and later to the Police.

Law

The accused is charged with one count of having carnal knowledge of an underage girl pursuant to s.229A (2) & (3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The offence is aggravated by two factors. First the victim in this case was only nine (9) years when the accused sexually abused her. Under Subsection (2) of the section charged, the prisoner may be sent to life imprisonment. Similarly if the offence is committed with someone with whom, there is an existing relationship of trust, dependency and authority, the penalty is the same as for Subsection (2). That is a life imprisonment can be imposed subject to s.19 of the Criminal Code.

The relationship of the accused to the victim bothers this court very much. The victim is the daughter of the accused’s own first born daughter. That is to say, she is the accused’s grand-daughter. For the sake of clarity, I set out s.229A (1) (2) (3) in the following terms:

"(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.

The prisoner’s case involves the abuse of trust, authority or dependency, a separate offence created by s.229E which carries the maximum term of not exceeding fifteen (15) years imprisonment. The prisoner abused the trust because, the victim is your grand-daughter whom the law expects you to look after and provide care and protection to in time of need and trouble.

The accused breached the trust existing between him and his grand daughter. In time of trouble and danger the accused could safeguard the victim and the breach he caused is severe indeed. As already noted the accused is very closely related to the victim. The definition of "relationship of trust, authority and dependency" is defined in s.6 (1) and (2) (a) to (h) in the following words:

"(1) When the term relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where -

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or
(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant’s grandparent, aunt, uncle, sibling (including step-sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care or control."

Sexual abuse of our young children in this country and particularly in this Province is very prevalent. Very young girls are being abused at very early ages as was the case in the instant case. A child at the age of 9 years is merely a child of very tender age is not capable of having sexual relations with anyone. The courts must view these kinds of abuses to be very serious. There are more then several forms of child abuse such as physical, mental, emotional and sexual abuse.

In my view sexual abuse is the most severe kind and I think this form of abuse is what the Criminal Code (Sexual Offences and Crimes Against Children) Act is trying to address. Other types of child abuse are taken care of by other legislations such either the Criminal Code itself or the Summary Offences Act or what it used to be the Child Welfare Act.

The next aggravation is that, there was a very big gap age difference between the victim and the prisoner. According to the case of The State v Mitige Neheya [1988-89] PNGLR 174 where there is a substantial age difference, it is an aggravation. I adopt the principles stated in that case and also say that, the breach of trust involved in the circumstances of the present case was severe in nature as the victim is the grand – daughter of the accused. As you were having sex with the little victim, she was calling out for you by saying ‘granny, granny, but you took no notice and continued until you reached orgasm.

Under-age children, all youths be they girls or boys alike and even our women are protected by law. They have the right to the protection of law as much as the adults have. Children deserve to be treated with all courtesy due to them just like what is due to any other human beings. Although there is evidence that the prisoner has the habit of molesting very young girls on Watam Island and even his own daughters that is not a consideration before the court.

There are many cases either in this Province or elsewhere which show that, under-age children have been subjected to persistent sexual abuse by members of their own families or very close relatives as the facts of the instant case reveals. As the victim shows in her statement, she will have to live with the trauma, guilt and fear.

In The State v Penias Mokei (No.2) (26.8.04) N2635 Cannings, J. set out certain considerations which should be considered as a guide to sentencing offenders on charges of sexual abuse under the Act. I have covered some of those factors in this discussion. One of the relevant considerations which His Honour made in that judgment is "the level of breach of trust". If the relationship of trust between the accused and the victim is very close, the more serious the betrayal of trust it becomes and the higher the penalty should be.

It is not fair for a person like you to treat a member of your own family in the manner you treated your own grand-daughter. You have the sexual pleasure of your wife. That is right in law, however for you to sexually molest a small child like Salome what good did it do to you or to the victim herself? If it is true that you have also sexually abused your own daughters, then you would have no respect for the daughter of your biological daughter. What you did is totally out of human logic and very serious in law. How can you treat your own family member like what you did to the victim when you have your wife to go to for sexual gratification? If your wife had passed then at least you should have gone to a woman of your age and size rather than defiling the victim at her very tender age.

When you were administered allocutus, you asked if the matter could be returned to the village to be mediated. You said you are now sorry for what you did to the prosecutrix. The court cannot send your case back to your island as you were committed for this serious offence for this court to punish you for your evil doing. The reason why you want the matter to be transferred to the village is because you want to pay compensation. If you were serious about compensation payment, you would have done that as a matter of urgency when you were found out. This court has power to order you to pay compensation pursuant to s.2 of the Criminal Law (Compensation) Act. In your case, this court will not order compensation as you will be given a term of years.

I have considered counsels submissions on mitigations and aggravations. I take into account you pleaded guilty to this serious offence saving the State time and expenses. I distinguish your case from the case The State v William Patangala CR.No.800 of 2004 (my decision of 22nd February 2006). First the accused in that case was charged with two charges of sexual touching aggravated by an existing relationship of trust, dependency and authority. The charges were laid pursuant to s.229B (1) of the Act. He was sentenced to four years with three years being suspended.

Your case falls into one of the very serious categories in that, under s.229A (2) & (3) of the above Act you could be sentenced to life imprisonment because on the date of this offence namely in the month of September 2005, the victim was nine years. Her age was under 12 years as stated by Subsection (2) of the Act. The mother of the victim, Frida Esrom says in her statement that she gave birth to the victim in July 1996. In July this year she will turn 10 years.

In addition to the above, the facts show that there is an existing relationship of trust, authority and dependency. You breached such trust and under s.229A (3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act you can be sentenced to life imprisonment subject to the sentencing discretion given this court under s.19 of the Criminal Code. Under s.229A (1) of the Act a person who engages in an act of sexual penetration with a girl a girl under the age of 16 years per se, the maximum penalty is 25 years imprisonment. In your case you have been charged under Subsection (2) & (3) both carrying terms of life imprisonment.

I consider that life imprisonment would not be appropriate in the circumstance of this case as it was one act of sexual intercourse as compared to persistent abuse. To make the community aware of the new law on sexual abuse the sentence of the court is 12 (twelve) years imprisonment in hard labour. The court will suspend 2 years from the head sentence on condition to keep the peace after serving the term of 10 years. The time spent in custody shall be deducted.
___________________

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