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State v Okole [2006] PGNC 54; N3052 (18 April 2006)

N3052

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1033 OF 2005

THE STATE

-V-

KAMINIEL OKOLE

KOKOPO: LENALIA, J.
2006: 11th & 18th 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. s.229A (2) & (3) and s.229E (1).

Cases cited:
The State v Penias Mokei (2004) N2635
The State v Mitige Neheya [1988-89] PNGLR 174
Mase v The State [1991] PNGLR.88
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Wari Mugining v R [1975] PNGLR 352
R v Kison (1976) N584
The State v Paul Nelson (2005) N2844
State v John Ritsi Kutetoa (2005) N2814
State v Thomas Angup (2005) Cr.414 of 2005
State v Tiama Esrom (2006) Cr.256 of 2006
State v Peter Lare (2004) N2557

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

18th April 2006.

LENALIA, J: The accused pleaded guilty to two counts of sexual penetration pursuant to s.229A (2) & (3) and a third count for abuse of trust, authority or dependency contrary to s.229E (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The offences were aggravated by an existing relationship of trust, dependency and authority and the abuse of trust reposed on the prisoner.

Relationship.

At the time of the three offences and prior to the time the offences were committed the accused was and is the step-father of the victim. It is clear from the statement of the mother and that of the victim that the victim is the accused’s step-daughter because the accused is married to the mother of the victim. It is clear that the victim’s father is different. This means, the mother of the victim had been married to another man before she got married to the accused in 1986.

Facts.

Since 1996, the accused started to sexually abuse the victim. By that year the victim might have been only 9 or 10 years. Although she says in her statement that she was 11 years, when the accused started to abuse her, she would have turned 20 by the date she made the statement to the police in 2005. The accused continued to sexually abuse the victim until late 2004 when she got pregnant.

The victim states in her undated statement that, the accused would often have sex with her in the house when her mother was at work during day time. Other times Linda James’ mother would send Lynda and her small brothers and sisters to collect firewood or food from the bush and gardens, but often, the accused would make the little children stay back in the village and he would go with the victim to the garden and he would have sex with her. Sex would often take place at the will of the accused whenever he whished it.

The accused became very possessive of the victim resulting in him being very aggressive as he physically abused her. The accused did not allow her to talk with her friends even her close cousins both boys and girls. Whenever the accused felt like having sex during day time when the mother was away at work, he would ask the victim’s brothers and sisters to do some work to keep them occupied and at a distance then he would have sex with Lynda.

In 1998, a sexual abuse awareness team came around to Raburua village to campaign against sexual and physical abuses. After such campaign, the accused came to the victim and apologized to her. He stopped abusing the victim for some three months but then renewed sexual abuse until 2004 when the victim got pregnant. The mother of the victim Betty James states in her statement dated 11th of March 2005 that, she got married to the accused in 1986. Before that, she was married to another man and she gave birth to Lynda James on 13th of November 1985. Then since she was working for A.D.N. Distributors Associates she got transferred to Lae. But in 1996, they returned to Rabaul with the accused and she became suspicious of him becoming so aggressive and possessive of the victim.

After completing her high school education at Kokopo Secondary in 2002, she scored good results and she was enrolled at Kabaleo Teachers’ College on this Province. Despite being accepted at that college, the accused could not allow her to enter the college. In March of that year, Lynda secured employment with Tropicana Ltd in Kokopo. Whenever Lynda was late from work, the accused would belt her up so much so that, the accused put the victim out from her work.

Law.

The accused is charged with three counts. Two of those charges are laid pursuant to s.229A (1) (2) & (3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. Those charges are aggravated by the fact that the victim was under the age of 12 years and secondly, there was an existing relationship of trust, dependency and authority between the accused and the victim. The above section states:

"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."

The third count is brought pursuant to s.229E (1) of the above law on the abuse of trust. I also set out that section which provides:

"229E. ABUSE OF TRUST, AUTHORITY OR DEPENDENCY.

(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years.

Aggravations.

On the first two charges, the accused could be sent to goal for life imprisonment. The rationale behind the legislature fixing life imprisonment for Subsections (2) & (3) is that a child under the age of 12 years is not capable of being sexually abused. Secondly, where a person commits an offence of either sexual penetration or sexual abuse of a child with whom there is an existing relationship of trust, dependency or authority, it is the abuse and breach of trust that children have in their immediate family members such as fathers, mothers, brothers, sisters and all those characters defined in s.6A (1) & (2) of the Act. This section states:

"(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

(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."

There are other aggravating factors which the court must consider. A part from the fact that, the accused is the step-father of the victim, there was a substantial age difference between the accused and the victim. This fact is an aggravation: The State v Mitige Neheya [1988-89] PNGLR 174, see also The State v Penias Moke (2004) N2635. A man who has sexual penetration with his daughter or step-daughter as was in the instant case commits a grievous morale and social offence against the girl because the victim and the community see the man as the father of the victim.

As the facts show the relationship between the victim and the accused is very close and not a distant one. He is the "step-parent" of the victim. Sexual abuse in the instant case continued for a long period of time. It is an offence under s.229D the Act to persistently abuse a particular child and the section carries the maximum of 15 years subject to Subsection (6) of that Section, life imprisonment. You also restricted her education by not allowing her to attend Kabaleo Teachers’ College. Article1. (1)-(6) of the Preamble of the PNG Constitution says that every person should be involved in the process of freeing himself or herself from "every form of domination or oppression" so that each person will have the opportunity to develop himself or herself as a whole person. Education is supposed to be based on mutual respect and dialogue with the motivation to achieve our goals through self-reliant.

Coupled with sexual penetration, you abused the victim physically. You beat her whenever you wanted to and when she arrived late from school, you treated her like your wife by assaulting her. Even if she was your wife, you had no right to hit her for trivial matters such as lateness or talking to other people. You restricted her from her freedom of association with her peer age group. You did not want her to talk to her friends or play with them. Whenever she either played or talked with friends, you would belt her up.

The next aggravation is that, as the result of the relationship between the accused and the victim she became pregnant. The medical examination report conducted on the victim on 23rd of February 2005 confirms that the victim was pregnant. She was estimated to deliver on 21st of April that year. The victim will carry the burden of ridicule, contempt and unhappiness throughout her life time. That is psychologically tormenting to her.

Mitigations.

On behalf of the accused, the court takes into account the accused guilty plea. In allocutus, the accused said he is very sorry for committing these offences against his step-daughter, his community and the extended family members. He said he is ashamed of what he did so much so that, he had to pay compensation. He said sorry to his wife and their four children and asked if he could be given a probation order or in the alternative a good behaviour bond. He asked the court to consider the fact that he is an aspiring businessman with a truck, two freezers and blocks of coconuts and cocoa trees.

Mr. Peter of counsel for the accused confirmed that, the accused had paid a large amount of compensation in shell money amounting to five hundred and four fathoms of tabu (Tolai shell money). That is in the value of K2, 700.00. The defence counsel asked the court to consider all mitigations however he agreed with the State counsel that a custodial sentence be imposed.

The accused only completed Grade 6 way back in 1975 but he managed to gain employment with Pangini Transport and worked with that company for some time. He came back to this Province in 1990.

The court will consider all those mitigations raised in favour of the accused and I agree with Mr. Peter that, the court ought to take into account the accused guilty plea to these serious charges. Certainly the court will consider all mitigations including compensation that has been paid by the accused.

Before the accused is sentenced, two other matters need to be addressed. The first of those is the fact the accused is charged for two counts under Section 229A (1) (2) and (3). I note the wording in Subsection (3) of this section talks about the fact that if at the time of the offence, there was an existing relationship of "trust, authority or dependency" between the child and the accused, it is an offence punishable by life imprisonment subject to s.19 of the Code.

It could be argued that, it would not be proper for the State to lay a charge of similar nature under s.229E (1) for the offence of abuse of trust as the wording seems to me to be similar to Subsection (3) of s.229A and therefore would be bad for duplicity under s.531 of the Criminal Code. In any event it can also be argued on the other hand that, because the acts constituting the offences arose out of a series of acts done in the prosecution of the unlawful purpose the joinder is good: Wari Mugining v R [1975] PNGLR 352, see also R v Kison (1976) N580.

The final matter to be mentioned is the fact that the trend of sentencing so far adopted under the new legislation is rising and in order for the court to sentence the accused I need to look at some case law authorities on sexual touching and sexual penetration since the law on sexual crimes came into operation. For purposes of sentencing the accused, I have considered the relevant considerations set out in cases such as The State v Penias Moke (2004) N2635 and that of The State v Paul Nelson (2005) N2944. Those were cases by Cannings; J., the former one in Wewak and the later in Kimbe. In the former case, the accused was sentenced to 15 years. The other case was of sexual touching for which the accused was sentenced to 3 years.

In The State v John Ritsi Kutetoa (2005) N2814, Cannings; J. sentenced the accused to 17 years for an offence of sexual penetration. In another case of sexual penetration of a girl under the age of 12 years that of The State v Thomas Angup (2005) CR.414/2005, Lay; J. sentenced the accused to 20 years in hard labour. In The State v Kemai Lumou (2004) N2684 a case by Kandakasi; J. imposed a sentence of 17 years.

Then just last week, this court in The State v Tiama Esrom (13.4.06) CR.254/2006, sentenced the accused to 12 years. In The State v Peter Lare (2004) N2557, Kandakasi; J. sentenced the accused to 20 years for sexual penetration aggravated be physical violence.

Having considered the above cases, the facts of this case shows that, the case of the accused in the instant case is aggravated by the serious breach of trust and the accused’s case involved part of persistent abuse for over 8 long years until the victim’s pregnancy revealed her predicament.

I am warned of the principle of sentencing in concurrent and consecutive sentences as the Supreme Court stated in Mase v The State [1991] PNGLR 88 or the Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 which say that where there are more than one charge, the court should first consider if concurrent or cumulative sentences should be imposed. If the sentencer decides to order consecutive sentences, the court is required to look at the total sentence to ensure that it is just and appropriate and the accused must receive a just total.

Having said this, the sentence of the Court is as follows:

Count.1. The Accused is sentenced to 9 years imprisonment.

Count.2. The accused is sentenced to 8 years imprisonment. The sentence for Count 2 shall be served consecutively upon Count.1 making a total of 17 years.

Count.3. The accused is sentenced to 5 years imprisonment. To be served concurrently upon the sentence for Count. 2.

The court will suspend 2 years from the head sentence on condition that after serving his sentence of 15 years, he shall enter into a recognizance to keep the peace for 12 months. The time he has spent in custody shall be deducted. His bail money shall be refunded to him.
____________________________________________________________________
Lawyer for the State: The Public Prosecutor
Lawyer for Accused: The Public Solicitor.