N3090

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 947 OF 2000

THE STATE

V

ILAM PETER

Kokopo: Lay J
2006: 21 and 22 June, 23 August

CRIMINAL CODE ─ s.349(1)(a) ─ sexual touching ─ s.347(1)&(2) ─ aggravated rape ─ breach of trust ─ one event ─ rape of daughter ─ prisoner aged 50 years ─ victim aged 20 years ─ plea of guilty after victim gave evidence ─ sentence of 14 years imprisonment ─ one event of sexual touching ─ touching of buttocks and Breasts ─ 6 months imprisonment ─ sentences to be concurrent ─ s.349A(e) meaning of "position of trust, authority or dependency".

Facts

Initially pleading not guilty, after hearing his daughter’s evidence the prisoner pleaded guilty to charges that on a date between 1999-2001 the prisoner pressed his daughter’s breasts and buttocks with his fingers contrary to s.349(1)(a) and s.349A ( e) of the Criminal Code. On a separate occasion he penetrated his daughter’s vagina with his penis without her consent contrary to s.347(1) in breach of a position of trust contrary to s.347(2) and s.349 A (e).

Held

1. The maximum penalty for the s.349 offence occurring prior to the amendments effected by the Criminal Code (Crimes Against Children and Sexual Offences) Act is the penalty of 2 years imprisonment applicable before the amendments. The maximum penalty on the rape charge is life imprisonment because, with the aggravated circumstances charged of breach of position of trust and authority, life was the maximum penalty before and after the amendments.

Section 11(2) of the Criminal Code, Section 37(7) of the Constitution, Baiza Tadu Avona v The State [1986] PNGLR 148, Kape Sulu v The State (2003) N2456; The State v Dibol Petrus Kopal (2004) N2778; The State v John Ritsi Kutetoa (2005) N2814; The State v Moses Jafisa Winga (No 1) (2005) N2952 referred to.

2. Whether the accused, in relation to the victim, is in a position of trust, authority or dependency within the meaning of Criminal Code s.349A(e) is generally a question of fact for the trial judge, which is to be determined with regard to the actual relationship between the accused and the victim and not exclusively with regard to the legal relationship with the victim.

3. As a matter of law some persons hold positions in society which prima facie in relation to the particular victim, carry the characteristics which establish a position of trust, authority or dependency, without the need for further proof. The facts of a particular case may displace that presumption.

4. Criminal Code 6A, although not directly applicable to s.349A(e), provides a strong guide to a trial judge of the positions which our society considers prima facie are positions of trust authority or dependency without further proof; unless there is evidence to displace the presumption.

5. "Abuse" is not a separate element of aggravation to be proven. Once the elements of the offence charged and the position of trust, authority or dependency are established, it follows that the position has been abused.

R v Audet, (1996) 2 S.C.R. 171 referred to.

6. The appropriate sentence for the sexual touching is 6 months.

State v Jason Rihata (2005) CR No. 171 of 2005; State v John Ritzi Kutetoa (2005) N2814 referred to.

7. The appropriate head sentence for aggravated rape is 15 years.

The State v Flotyme Sina (No 2) (2004) N2541 referred to.

8. After allowing for the mitigating circumstances of first offender, plea of guilty, single event, no gratuitous violence and other matters submitted by counsel, and noting the head sentence takes into account the aggravating circumstances of the breach of a position of trust, the appropriate sentence for rape is 14 years imprisonment.

Lawrence Hindemba v State (1998) SC593; State v Dii Gideon N2335 (2002); The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi And Issac Sip (No 2) (2004) N2543; James Mova Meaoa v The State [1996] PNGLR 28; The State v James Yali (2006) N2989; State v Marcus Tongit (unreported CR451/2004 20/2/06) CR No.642 of 2003 The State v Albert Rarat 9th August 2006 (unreported). The State v Kaminiel Okole CR No.1033 of 2005 (18th April 2006 unreported, Kokopo); State v Eddie Sam (2004) N2521; State v James Donald Keimou (2001) N2295; State v Tiama Esrom (13th April 2006) CR No.254 of 2006─ State v David Duna Burua CR. No.829 of 2005 referred to.

9. One series of events ─ Sentences to be served concurrently.

State v Sottie Apusa [1988-89] PNGLR 170 and D. A. Thomas; Principles of Sentencing referred to

Counsel:
L. Rangan, for the State
P. Kaluwin, for the Defendant

1. LAY J.: The prisoner was charged with one count of sexual touching contrary to section 349(1)(a) and one count of rape contrary to section 347 (1) and (2), the specified circumstances of aggravation being that he abused a position of authority, trust or dependency; with an alternate charge of incest contrary to section 223(1) of the Criminal Code.

2. When first arraigned the prisoner pleaded not guilty to all charges. At the conclusion of the evidence of his daughter, who was the victim, the prisoner requested to be re-arraigned when he then pleaded guilty to counts one and two, and the alternate charge to count two was struck out on the application of the State.

3. The statement of facts to which the prisoner pleaded guilty was that the prisoner is the natural father of Ilam Anastasia a female aged about 20 years of age at the time of the offence. Between 1999 and 2001 on an unknown date at Vunakabi, he was at home with Anastasia. He pressed the buttocks and breasts of Anastasia with his fingers. These parts are forbidden by law from being touched. Ilam Anastasia did not consent. He abused his position of trust and authority. He was Anastasia's father.

4. Also on an unknown date between 1999 and 2001 at the family home at Vunakabi village Anastasia was at home and went inside the house and was sitting on her bed. The prisoner went inside and ordered Anastasia to sleep on the bed. He spoke to her in a harsh way, he took off her laplap and pants and slept on top of her penetrating her vagina with his penis and released his sperm on the mattress. When he did this he abused his position of trust, authority or dependency because he was her father.

5. On his allocutus the prisoner had nothing to say. The antecedent report indicated no prior convictions.

6. The age of the prisoner was unknown. For purposes of the Evidence Act Section 63 I estimate his age at 50 years. He is married with three children, a United Church adherent, his mother is deceased, his father is alive. He has six brothers and two sisters being the first born in a family of eight. He has never been to school. At the time he was charged he was employed as a cleaner with Vunadidir Local Level Government. In mitigation it was submitted that:

1. He is a first-time offender;
2. he will have to live with the stigma of the crime against his own family;
3. he made an early admission of count one and assisted the Police in that regard;
4. compensation has been paid;
5. he is no longer a threat to the family;
6. his daughter has made a plea for leniency, there has been some reconciliation;
7. it is fortunate that the victim gave evidence because it has enabled the court to see the situation at the house;
8. the court should note the Section 96 statement in the record of  interview in lieu of the statement on allocutus;
9. the rape was one off, not repeated;
10. there is no evidence that the sexual touching took place prior to or after the date charged, a one-off incident, the prisoner could not be labelled a sexual predator;

7. It was submitted that the penalty for the section 349 offence should be less than two years because it occurred before this section was amended, it was submitted the sentence for the two offences should be cumulative and a total of four to five years would be appropriate.

8. The State Prosecutor drew to my attention the fact that the two offences took place before the amendment effected by the Criminal Code (Sexual Offences and Crimes against Children) Act. He also submitted that the prisoner did not cooperate to the extent that he forced his daughter to give evidence before changing his plea.

9. A pre-sentence report was submitted by the Community Base Corrections Service, Rabaul. That report revealed that the prisoner had left his family in 1984, leaving his wife to bring the children up on her own. He returned some 14 years later, having fathered three children from another woman in the meantime. The family were living together with the prisoner for four to five years before the offences occurred. The report confirmed that 400 fathoms shell money and K300 cash was paid by the prisoner and his relatives to restore peace before referring the matter to the Police. The victim pleads for leniency so that the prisoner can help out to his wife, the victim's mother. The prisoner owns three blocks of cocoa of which one has been given to his daughter, the victim, when she married. The other two blocks are retained by the family who have depended on them since he has been in custody.

10. The pre-sentence report also records that the prisoner appears to be slightly deaf in the right ear. A medical report dated 13 March 2006 was produced from the Nonga General Hospital. The medical report shows that the prisoner had surgery for hernia repair on the 21 February 2006 and needs to be restrained from doing heavy work for eight months to allow internal healing.

11. Section 349 of the Criminal Code is in the following terms:

349. Sexual assault.

(1) A person who, without a person's consent—

(a) touches, with any part of his body, the sexual parts of that other person; or
(b) compels another person to touch, with any part of his body, the sexual parts of the accused person's own body, is guilty of a crime of sexual assault.

Penalty: Subject to Subsection (4), imprisonment for a term not exceeding five years.

(2) For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with any part of his body or with any object manipulated by the person.

(4) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable to a term of imprisonment not exceeding 10 years.

12. The circumstances of aggravation referred to in s 349(4) are defined in section 349A and include:

(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or

13. This is the circumstance alleged in the indictment. The foregoing provision is the only provision in the Code which refers to "a position of trust...". There are seven (7) offences in the Code which refer to "a relationship of trust..." as an aggravating circumstance of the offence.

14. A position of trust, authority or dependency, is not defined in the Code. Amongst other definitions the 9th Concise Oxford Dictionary defines "position" as a person's situation in relation to others and a person’s rank or status. In the case of R v Yves Audet [1996] 2 SCR 171 the Supreme Court of Canada found itself in a similar position with respect to determining the meaning of the phrase position of trust, or authority… or …is in a relationship of dependency". In that case a 22 year-old male teacher had sexual relations in the vacation with a 14 year-old former female student who was likely to be his student again in the ensuing year. The provision under consideration was s.153(1) of the Canadian Criminal Code, s.153 reads:

1. Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or

(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person, is guilty of an offence punishable on summary conviction.

2. In this section, "young person" means a person fourteen years of age or more but under the again eighteen years.

15. The trial judge assumed that it had to be proven that at the time of the offence there existed a teacher - student relationship in law. The majority in that case said:

"To apply these principles correctly to the case at bar and to determine whether, but for the trial judge's error, there is a reasonable degree of certainty that the verdict would have been different, and if so, whether a verdict of guilty should be entered (on appeal), it is necessary to consider the meaning and scope of the terms "position of authority" and "position of trust" used by Parliament in s. 153(1). (a) "Position of Authority" and "Position of Trust"
 
33 The courts have had little to say on a theoretical level about the scope of these expressions, which are no where defined in the Criminal Code. 

Proulx J.A. wrote the following about the "position of authority" concept in Léon, supra, at p. 483:

[translation] In its primary meaning, the notion of authority stems from the adult's role in relation to the young person, but it will be agreed that in the context of this statutory provision, to be in a "position of authority" does not necessarily entail just the exercise of a legal right over the young person, but also a lawful or unlawful power to command which the adult may acquire in the circumstances.

For his part, Blair J. made the following comment in P.S., supra:
 
. . . [a position of authority] invokes notions of power and the ability to hold in one's hands the future or destiny of the person who is the object of the exercise of the authority. . . .

Finally, Blair J., also in P.S., wrote the following about the term "position of trust":

One needs to keep in mind that what is in question is not the specialized concept of the law of equity, called a "trust". What is in question is a broader social or societal relationship between two people, an adult and a young person. "Trust", according to the Concise Oxford Dictionary (8th ed.), is simply "a firm belief in the reliability or truth or strength of a person". 

Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a "position of trust" towards the young person. [Emphasis added.]

34 In the absence of statutory definitions, the process of interpretation must begin with a consideration of the ordinary meaning of the words used by Parliament. Le Grand Robert de la langue française (2nd ed. 1986) defines the French word "autorité" as a [translation] "[r]ight to command, power (recognized or unrecognized) to enforce obedience", which is, at least in substance, quite similar to the definition proposed by Proulx J.A. It adds that another meaning of "autorité" is [translation] "[s]uperiority of merit or seductiveness that compels unconstrained obedience, respect, trust". The Oxford English Dictionary (2nd ed. 1989) suggests similar definitions for the English word "authority": "[p]ower or right to enforce obedience" and "[p]ower to influence the conduct and actions of others". I am in complete agreement with Proulx J.A. that the meaning of the term must not be restricted to cases in which the relationship of authority stems from a role of the accused but must extend to any relationship in which the accused actually exercises such a power. 

As can be seen from these definitions, the ordinary meaning of the word"authority" or "autorité" does not permit so restrictive an interpretation. 

Furthermore, the comments of Proulx J.A. are entirely appropriate in view of the express intention of Parliament, which, in declining to include in s. 153(1) a list of the cases in which a person must refrain from sexual contact with a young person, intended to direct the analysis to the nature of the relationship between the young person and the accused rather than to their status in relation to each other. I will return to this.

35 The French word "confiance", according to Le Grand Robert, is a belief in or firm expectation of something, or faith in someone, and the confidence that results therefrom. In English, the word "trust" can have various meanings, especially in a legal context. However, considering that Parliament used the word "confiance" in the French version, I doubt that the word "trust" as used in s. 153(1) refers to the concept as defined in equity. I therefore agree with the reservations expressed by Blair J. "Trust" must instead be interpreted in accordance with its primary meaning: "[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement". The word "confidence" is defined as follows: "[t]he mental attitude of trusting in or relying on a person or thing; firm trust, reliance, faith".

36 I would add that the definition of the words used by Parliament, like the determination in each case of the nature of the relationship between the young person and the accused, must take into account the purpose and objective pursued by Parliament of protecting the interests of young persons who, due to the nature of their relationships with certain persons, are in a position of vulnerability and weakness in relation to those persons.
 
37 Even in light of these definitions, the concept of a "position of trust" is difficult, perhaps even more than that of a "position of authority", to define in the abstract in the absence of a factual context. For this reason, it would be inappropriate for this Court to try to precisely delineate its limits in a factual vacuum, especially since very few judicial decisions have so far commented on this relatively recent provision of the Criminal Code. The fact that this appeal was brought as of right and that the issue was not fully argued in this Court makes this even more compelling.

38 It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of the relationship between a young person and an accused, whether the accused was in a position of trust or authority towards the young person or whether the young person was in a relationship of dependency with the accused at the time of the alleged offence. One of the difficulties that will undoubtedly arise in some cases concerns the determination of the times when the "position" or "relationship" in question begins and ends. It would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact. 

The age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person will of course be relevant in many cases."

39. In this context, it should, as I have mentioned, be noted that Parliament did not elect to prohibit sexual contact with a young person by referring to the status of the accused in relation to the young person, so this factor cannot be decisive in itself. For example, as Ayles J.A. concluded in the case at bar, a teacher is not in a de jure position of trust or authority towards his or her students.

40. However, it would be excessively formalistic to refuse to recognize that certain persons, by reason of the role entrusted to them by society, will in fact and in the vast majority of cases come within the ambit of s. 153(1) by reason of their status visa vis the young person and, in particular, the relationship they are engaged in with that young person as a consequence of such status. In Norberg v. Wynrib, supra, at p. 255, I referred to the work of Professor Coleman, who in an article entitled "Sex in Power . Dependency Relationships: Taking Unfair Advantage of the ‘Fair’ Sex" (1988), 53 Alb. L. Rev. 95, identified a number of types of relationships, including that of a teacher and student, in which a "power dependency" relationship is inherent.

41. In my view, no evidence is required to prove that teachers play key role in our society that places them in a direct position of trust and authority towards their students. Parents delegate their parental authority to teachers and entrust them with the responsibility of instilling in their children a large part of the store of learning they will acquire during their development...".

16. I agree with the Canadian Court that the words trust, authority or dependency have to be given their ordinary meaning in the context of the objective Parliament intended to achieve. Whether such a position exists in a matter for the trial judge to determine. Some positions carry with them in relation to the particular victim, authority, trust or dependency without need for further proof.

17. Section 349A(e) of the Criminal Code refers to the accused "abuses a position". It seems to me that once the elements of the offence and the position of the accused in relation to the victim are proven, the abuse of the position is established. "Abuse" is not a separate element of the "aggravating circumstances" which has to be proven.

Our Criminal Code provides relevantly:

6A(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

18. Whilst a definition of "relationship" is not directly related to a "position", the definition in s.6A will be a strong guide to the trial judge as to the type of position which prima facie and without the need for formal proof, is a position our society considers carries with it the characteristics which establish a position of trust, authority or dependency. Of course that prima facie presumption might be displaced by the facts in a particular case.

19. In summary:

1. Whether the accused, in relation to the victim, is in a position of trust, authority or dependency is primarily a question of fact for the trial judge, which is to be determined with regard to the actual relationship between the accused and the victim and not exclusively without regard to the legal relationships with the victim.

2. As a matter of law some persons hold positions in society which prima facie in relation to the particular victim, carry the characteristics which establish a position of trust, authority or dependency, without the need for further proof. Unless there are factual circumstances which tend to displace the presumption.

3. Criminal Code 6A, although not directly applicable to s349A(e), provides a strong guide to a trial judge of the positions which our society considers prima facie are positions of trust authority or dependency; unless there is evidence to displace the presumption.

4. "Abuse" is not a separate element of aggravation to be proven. Once the elements of the offence charged and the position of trust, authority or dependency are established, it follows that the position has been abused.

20. I hold that in a daughter/father relationship the father is prima facie in a position of trust and authority and dependency, and that there is no need to prove that position by more than establishing a father/daughter relationship; at least until such time as the daughter establishes her own life away from and independently of the father, or there are some other factual circumstances which create reasonable doubt to displace the presumption of the ordinary position. Apply those principles I decided in this case that it was safe to accept the prisoner’s guilty plea.

21. Where the accused is a parent of the victim in an ordinary father/daughter relationship which prima facie creates a position of trust, authority or dependency; the maximum penalty prescribed by Section 349 is in those circumstances of aggravation, if charged in the indictment is 10 years imprisonment, subject to the provisions of Section 11 of the Criminal Code and Section 37(7) of the Constitution.

22. Prior to the amendment of Section 349 by the Criminal Code (Sexual Offences and Crimes against Children) Act the circumstances constituting the offence under Section 349 existed as an offence but the maximum penalty for the offence was only two years imprisonment. It follows from the provisions of Section 11(2) of the Criminal Code and Section 37(7) of the Constitution that the maximum penalty to which the prisoner can be sentenced is two years imprisonment: See Baiza Tadu Avona v The State [1986] PNGLR 148, Kidu CJ, Amet J, Cory J, Los J, Wilson J.; Kape Sulu v The State (2003) N2456, Manuhu AJ; The State v Dibol Petrus Kopal (2004) N2778, Lay J; The State v John Ritsi Kutetoa (2005) N2814, Cannings J; The State v Moses Jafisa Winga (No 1) (2005) N2952 (Kandakasi J).

23. The only case referred to in the PngInLAw reports concerning a sentence under section 349 for an offence committed prior to the amendments and tried after the amendments were in force, is an unreported decision of my own, the State v Jason Rihata (2005) CR No. 171 of 2005 referred to in the State v John Ritzi Kutetoa (2005)N2814, Cannings J. In Rihata a man of 30 years of age tackled a girl of about 18 years of age to the ground and pressed his penis into her buttocks while she lay face down on the ground. Further assault was prevented by the girl’s relatives. The Defendant was sentenced to six months in hard labour.

24. The relevant sections of the Criminal Code on sentence for rape are s.347, and s.349A and I set out s.347 below. The relevant portion of s.349A is quoted above:

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.

25. Section 347 has been amended by the Criminal Code (Sexual Offences & Offences Against Children) Act since the offence was committed and Sections 347A (meaning of consent) and s.349A (definitions of circumstances of aggravation) have been inserted in the Code since that date. I held in the case of State v Dibol Petrus Kopal (supra) that the old form of s.347 had been repealed and not preserved for any purpose and accordingly an indictment must be laid under the new s.347. For the Defendant to be exposed to a maximum sentence of life imprisonment pursuant to s.347(2) the indictment must charge circumstances of aggravation. 

26. Under the pre amendment s.347 the maximum penalty was life imprisonment, therefore I consider that all of the authorities prior to the amendment on range of sentence decided in respect of that Section are applicable to sentencing under the amended Section where s.347(2) applies. For the reasons already given above in relation to s.349, s.347(2) applies when there are circumstances of aggravation. Circumstances of aggravation includes breach of a position of trust, authority or dependency: See Section 349A (e). Such a position is abused where there is a relationship of parent on the part of the perpetrator and child on the part of the victim and other elements of the offence are established. 

27. In Lawrence Hindemba v State (1998) SC593 the Supreme Court said:

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v The State with a view to increasing the sentences given the prevalence of the offence and the society’s demand for tougher sentences: see James Meaoa v The State sc 504 (1996), Thomas Waim v The State SC519 (1997), and Sinclair Matagal v The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years."

28. One judge has taken the view that the intention of Parliament in amending the legislation is that the starting point for rape with aggravating circumstances is to be 15 years, that is, the penalty for rape without aggravating circumstances goes up to 15 years and you start there and go up to life when there are aggravating circumstances: See The State v Flotyme Sina (No 2) (2004) N2541 Kandakasi J. For myself I would hesitate to adopt that interpretation because I see it is as tantamount to suggesting a legislative intention to impose a minimum sentence for the aggravated offence, which I do not think Parliament intended, with the greatest respect to the judge in that case. There is logic in treating fifteen (15) years as the starting point in terms of a head sentence to which is then applied the mitigating and aggravating circumstances and factors.

29. I acknowledge the force of the argument for higher penalties in cases of aggravated rape. To do so I think one need only follow Lawrence Hindemba v State with some adjustment according to the circumstances of the case and extending the range upward where there are multiple factors of aggravation. An example of such appropriate judicial action is the State v Dii Gideon N2335 (2002) Injia J where a sentence of 25 years was imposed four years ago for a pack rape by 3 men of a 3 months pregnant overseas visitor with threats of use of weapons and after a home invasion and robbery. In The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi And Issac Sip (No 2) (2004) N2543 Kandakasi J, sentences of 18, 20, 22 & 25 years were imposed for gang rape by 10 men after a planned abduction in broad daylight with threats to third parties with bush knives after entering a private home in which the victim was taking refuge.

30. Cases closer to this case are the State v Pais Steven Sau (2004) N2588, Kandakasi J. That was rape in breach of a relationship of trust and in front of the victim's small children. The sentence was one of 15 years. The State v Junior Popen Sibu (No. two) 2004 N2567. Rape of a niece. Young first offender. No other aggravating circumstances. Sentence of 13 years.

31. Breach of trust has always warranted a higher sentence: See James Mova Meaoa v The State [1996] PNGLR 280. This is now recognized by inclusion of Section 349A(e) and (f) in the Code.

32. It has also been noted that there are parallels to be drawn between sentencing pursuant to Section 347(2) and Section 229A (2 and (3) in that both involve sexual penetration and both provide a maximum penalty of life imprisonment: See The State v James Yali (2006) N2989 (Cannings J). In that case his Honour noted sentences in the range of 2 years where there was one act with consent and not a large age difference, to 20 years where there was no consent; the victim received a sexually transmitted disease in a non consensual relationship lasting over 2 years. Lenalia J digests the sentence decisions in a number of cases involving incest in CR No.642 of 2003 The State v Albert Rarat 9th August 2006 (unreported and unnumbered) as follows:

The State v Kaminiel Okole CR No.1033 of 2005 (18th April 2006 unreported, Kokopo), plea of guilty to two counts of sexual penetration of step daughter, third count of abuse of trust and authority. Total sentence of 17 years.

The State v Eddie Sam (2004) N2521. Nine charges of rape ─ alternative charge of incest ─ after a trial convicted on alternate charge ─ sentence of 17 years, 7 years suspended.

The State v James Donald Keimou (2001) N2295 ─ s223 ─ natural father having sexual relations with two daughters over a number of years ─ daughters giving birth to total of three children by father ─ worst ─ case ─ sentence of life imprisonment.

The State v Tiama Esrom (13th April 2006) CR No.254 of 2006 ─ incest with grand daughter ─ on a plea of guilty─ sentence to 12 years imprisonment.

The State v David Duna Burua CR. No.829 of 2005 ─natural father repeated sexual penetration of daughter aged 15 years ─ accused aged 50 years ─ accused well educated man ─ daughter gave birth to his child ─ on a plea of guilty, sentence of 20 years imprisonment.

33. This is not a case involving abduction or gratuitous use of force or an under aged victim or involving physical injury to the victim, multiple acts or the infliction of a disease or pregnancy. In this case starting with a head sentence of 15 years, which I consider takes into account the aggravating circumstance charged, I then note in mitigation that the prisoner is a first offender, and his guilty plea. The mitigating effect of his guilty plea is some what reduced by the fact that his daughter was forced to give her evidence before he changed his plea to a plea to guilty. Although he said nothing on his allocutus I believe that he is truly remorseful now of his actions, as indicated by his change of plea after hearing his daughter’s evidence. I consider there is little chance of his re-offending, although in the pre-sentence report the officer expresses some concerns should the prisoner be left alone with a young female.

34. Counsel for the prisoner suggested a sentence in the order of five (5) years would be appropriate. Perhaps that was a reference to my decision in the case of State v Marcus Tongit (unreported and unnumbered CR451/2004 20/2/06) which was a charge of incest where a sentence of 5 years was imposed, wholly suspended in consideration of the very poor health of the prisoner. That case was peculiar to its own facts. Although the facts were similar to the present, apart from the serious ill health of the defendant in that case, the charge presented was under s.223 which at the time when the offence was committed had a maximum penalty of seven (7) years. Consequently the sentence cannot be compared with the present case.

35. The sentence has to be greater than a sentence for rape without aggravating circumstances to mark the public interest in preventing and discouraging the aggravating circumstances, in this case, the breach of trust by a father to his daughter. Taking into account all that has been advanced by the prisoner’s lawyer on his behalf and all the circumstances of the case I consider the appropriate sentence is one of 14 years imprisonment less time spent in pre trial custody.

36. The sexual touching and the rape occurred on separate occasions but might be said to have occurred as one series of inappropriate sexual behaviour towards the prisoner’s daughter during the period 1999-2001. In State v Sottie Apusa Brunton AJ referred to D. A. Thomas; Principles of Sentencing as follows:

Both counsel have submitted that the six separate offences should be treated as a single complex. I was referred to D A Thomas’ Principles of Sentencing, 2nd ed (1979) at 54. The author there says:

"The concept of ‘single transaction’ may be held to cover a sequence of offences involving a repetition of the same behaviour towards the same victim, such as a series of sexual offences with the same partner."

37. I will treat the two offences as one sequence of events. I sentence the prisoner accordingly to terms of 6 months and 14 years imprisonment with light labour for the first 12 months, then after medical examination and satisfactory medical report, hard labour, to be served concurrently, less time spent in pre-trial custody.

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