N3315

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1269 of 2007

THE STATE

-V-

KUYAPS TOKI JONATHAN

Tabubil: 	Kandakasi, J.
2008: 6 & 12 March

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Particular offence –Persistent sexual abuse of a child under 16 – Breach of existing trust – Use of threat and force – Victim becoming pregnant – No compensation paid – Guilty plea – First time offender – Prevalent offence – Sentence of 18 years imposed – Criminal Code s. 229D(1) and (6).

Papua New Guinea Cases Cited:
The State v. Eddie Trosty (10/09/04) N2681.
The State v. Peter Lare (20/05/04) N2557.
The State v. Thomas Angu (21/04/05) N2830.
The State v. JB (20/09/07) N3224.
The State v. Kemai Lumou (23/09/04) N2684.

Counsel:
 J. Kesan, for the State.
P. Kapi, for the Prisoner.

12 March, 2007

1.	KANDAKASI J:	You pleaded guilty to a charge of sexual penetration contrary to s. 229D (1) and (6) of the Criminal Code. After receiving your address on sentence together with your lawyers and that of the State’s submissions, I adjourned to today for a decision on your sentence.

Issue Before the Court

2.	The issue for the Court to decide is what is an appropriate sentence for you? In order to properly determine that issue, I need to take into account the relevant facts and the circumstances in which you committed the offence, the offence and the sentencing trend, your personal and family backgrounds and the factors operating both in your favour as well as those operating against you.

Relevant Facts

3.	Turning firstly to the relevant facts, I note that, you left your home village in the Telefomin area in the West Sepik Province and came and lived with a family in Wangbin Village, here in Tabubil, Western Province. Whilst being accommodated by that family, between July 2006 and January 2007, you committed 4 different acts of forceful sexual penetration of the couple’s small daughter then aged 13 years old, in much the same way. The first was in July, the second in September, the third in November and the fourth in January 2007. On each occasion, except for the last one, the victim finished school and came home. Each of these times, the victim’s parents were out and you were alone at home. Taking advantage of the situation, you demanded to have sexual intercourse with the victim. The victim refused on all of the occasions. So you used a knife to threaten her, forced her to remove her clothes, lay on the ground and you proceeded to have sexual intercourse with her. On the last occasion, you repeated your sexual attacks of the victim in the same way as before. The only difference was that, this time the victim was home along with you. Because you had threatened the victim, she did not report you to anyone, until she became pregnant and her mother made enquires in August 2007. At that time, the victim revealed all that you did to her.

The Offence and Sentencing Trend

4.	With the above facts in mind, I turn to a consideration of the offence and its sentencing trend and tariffs. When you did what you did, you broke the laws of our land. The State had you charged and you pleaded guilty to an indictment presented under s. 229D (1) and (6) of the Criminal Code which creates and prescribes the offence in the following terms:

"229D.	Persistent sexual abuse of a child

(1)	A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent sexual abuse of a child.
Penalty:	Subject to Subsection (6), imprisonment for a term not exceeding 15 years.
	… 
(6)	If one of more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment."

5.	The Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 introduced this provision amongst many others by way of an amendment to the then existing law. Prior to the amendment, there were negligible penalties prescribed for some of the very serious sexual offences against children, women and girls. The amendment has thus, introduced new categories of sexual offences and increased the penalties with the worst case scenarios attracting life imprisonment. Parliament introduced these changes in response to a world wide call for the protection of children, young girls and women from sexual predators, namely, some self centred male offenders. It came at a time when the offences against our women, girls and children were prevalent and the past sentences seemed not to be deterring would be offenders.

6.	In the case of The State v. Eddie Trosty, I expressed the view that, in the light of the reasons for the amendments to the law and in the context of the offence of sexual penetration under s. 229A that, sentences for the offence of sexual penetration of girls under the age of 16 must be beyond the maximum prescribed under the old law. I then imposed a sentence of 6 years on a guilty plea in that case. Other factors influencing me to come to that sentence included; the prisoner and his victim having a boyfriend and girlfriend relationship, the victim was 15 years old whilst the prisoner was 21 years old at the time of the offence, they had prior several consensual sexual intercourses, no injuries were caused and finally, the offender did not introduce the victim to any sexually transmitted disease or make her pregnant.

7.	A case which comes closer to your case is my decision in The State v. Peter Lare, There, I imposed a sentence of 20 years on an indictment presented under s. 229A (1). There, the prisoner was an uncle to the victim and he had several and or repeated acts of sexual penetration of the victim over a four year period. There was a substantial age difference between them. The prisoner was 40 years old whilst the victim was under 12 years. The prisoner did not express any genuine remorse, evidenced by a lack of payment of any form of compensation to the victim and her side. Further, the prisoner infected the victim with a sexually transmitted decease. In arriving at that decision, I gave due weight and consideration to the reasons for the change in the law.

8.	Later, Mr. Justice Lay had regard to my decision in The State v. Peter Lare, and imposed a sentence of 20 years for one out of a number of sexual offence charges in the case of The State v. Thomas Angup. From the head note to that case, I note that, the Defendant was convicted on his guilty plea to 1 count of sexual touching of a child under 12 years in 1998, 1 count of sexual penetration of a child under 12 years in 1998, 2 counts of sexual penetration of a child under 16 years, in 2000 and another one in 2003, on unspecified dates. The prisoner committed these offences in breach of an existing relationship of trust as a parent. Clearly, the charges arose out of a pattern of sexual abuse of the victim over a period of 6 years. The victim became pregnant and bore a son before she reached age 16. Due to her pregnancy, the victim’s schooling got terminated prematurely. 

9.	Both the cases of The State v. Peter Lare and The State v. Thomas Angup were on the facts, cases of persistent sexual penetration. However, they were charged and they pleaded guilty to sexual penetration under s.229A and not 229D. Justice Lay in The State v. JB, dealt with a case of persistent sexual abuse of a child, under s. 229D. There, the prisoner pleaded guilty to two counts of persistent sexual abuse of a child and pleaded not guilty to a charge of rape which the Court sustained after a trial.

10.	The first conviction was for persistent sexual abuse between 15 April 2003 and 30 May 2003, where the offender sexually penetrated his eldest daughter, a child under the age of 18 years, on at least two occasions in breach of a position of trust authority or dependency. The second conviction was for persistent sexual abuse between 15 April 2003 and 5 February 2005, where the offender sexually penetrated, on at least two occasions, another daughter, then, under the age of 16 years. 

11.	After giving due weight and consideration to the reasons for the change in the law, the kinds of sentence imposed in similar cases, the factors for and against the offender with his background, the Court imposed a sentence of 10 and 16 years for the two different counts giving a total of 26 years. The Court had that reduced on the totality principle to 20 years. Effectively therefore, the sentence was similar to the ones imposed in The State v. Peter Lare and Thomas Angup cases. 

Sentence in Your Case

12.	Bearing the above in mind, I now proceed to a consideration of an appropriate sentence in your case. For that purpose, I note and take into account what you said in your own and that of your lawyer’s address on sentence. You said sorry for committing the offence. Also, you said sorry to the victim and her parents for the offence you committed against them. Further, you said sorry to God and the Court and said sorry also on behalf of your family. 

13.	To that, your lawyer added that, you are a single man aged 22 years. You come from Telefomin in the West Sepik Province. Your father is deceased but your mother is alive. You have a brother and a sister and that, you are the second born in your family. Education wise, you have been up to grade 6. You have no formal employment. Your lawyer concluded by pointing out that, you have been in custody since 24 September 2007. 

14.	 Your lawyer then urged the Court to note that, you are a first time offender and that you pleaded guilty. He also urged the Court to take into account the fact that you expressed remorse. Thereafter, your lawyer ably drew the Court’s attention to some of the cases I have referred to above and submitted that, the Court should impose a sentence close to 17 years, which was the sentence the Court imposed in the case of The State v. Kemai Lumou.

15.	Before proceeding any further, let me first point out that, the case your lawyer has referred to, is a case of one act of sexual penetration in circumstances that disclosed rape of a close relative. There, the Court convicted the prisoner after a trial. The victim was much younger than the offender was. The State had the prisoner charged with sexual penetration and not rape and the Court convicted the offender after a trial. Clearly, therefore, that case can be of no guidance in your case given that, you have been charged under s. 229D and is for persistent sexual abuse.

16.	The State urged the Court to take into account a number of aggravating factors and impose a sentence between 20 and 25 years. Counsel for the State urged the Court to note that, you committed the offence repeatedly over a period of time. You made the victim pregnant and she has given birth to a child. Further, you used force and threats to commit the offence. Finally, you committed the offence in breach of a trust placed in you as a de facto uncle by the victim. The State thus urged the Court to be guided by the decision in the The State v. Peter Lare and Thomas Angup cases.

17.	These submissions require the Court to consider each of the factors operating for and against you and then arrive at a sentence that best befits the crime. Accordingly, I turn to a consideration of the factors against you first. I start with your committing the offence against a person who was truly a child. You were much older than your victim was. You took advantage of that age disparity and violated the victim in the way you did over a period of time.

18.	Secondly, I note that, you were being accommodated for sometime by the victim’s parents. You were taken in as someone the family and the victim could trust. I am sure the victim did not expect you to have any sexual relationships with her, let alone commit a crime against her. Instead, she would have looked upon you for protection and guidance in growing up as a young girl. You destroyed that trust and confidence in you. 

19.	Thirdly, the victim did not accept your demands for sexual intercourse with her. That signified, in my view, that she knew it was wrong to have any sexual relationship with you given the trust relationship. Despite that, you forced her to have the various sexual intercourses with you. You used a knife to threaten and secure your sexual violation of the victim. The use of knives, axes and other such dangerous weapons often operates against an offender.

20.	Fourthly, following on from the above, I note that, you committed the offence in circumstances that clearly constituted aggravated rape. This is to be contrasted with a case in which there is consensual sexual intercourse. A woman or girl who is raped has her person violated. Her right to be respected as a human being who has to freely make a choice is trodden over by the selfish desires of her violators. There are repeated calls for the protection, care and respect for our women, girls and children, which you obviously cared less. This leads to the next factor against you. 

21.	The offence of rape and sexual penetration of a girl under the age of 16 and even much younger than that is, very prevalent in our country. Indeed, majority of the cases I have had to deal with in my past and present circuit run here are sexual offences against young girls and women. This tells us one thing very clearly. The kind of sentences that the courts have been imposing to date is of no deterrence to people like you, who are intent on committing this serious crime against our women, young girls and children.

22.	 Next, I note that your forceful sexual penetration of the victim made her pregnant prematurely. I say prematurely because, the victim was 14 years old at the time. She was not ready mentally and psychologically to become pregnant and become a mother so early on in her life. This is evidenced by the fact that, she did not consent to your sexual demands. She will bear for the rest of her life the pain of you violating her and making her pregnant. I am not too sure whether she stands any chance of someone else marrying her. Clearly, her virginity has been unlawfully taken away by you against her will.

23.	Finally, I note that you and your family did not take any meaningful step to compensate the victim for all the pain, shame and trouble you brought upon the victim with the premature pregnancy and child birth. You caused the victim to have a forced break in her education and become a mother and then pick up from where she left. I must salute the victim for taking the courage to go back to school after delivering the unplanned baby you gave her. 

24.	 Turning then to the factors in your favour, I note firstly, your guilty plea. This is consistent with the position you took from the point of your arrest, to committal and now before this Court. Hence, I note that you cooperated well with the authorities. This factor in most cases allows for some reduction or leniency toward an offender. You will be accorded the benefit this brings you.

25.	Secondly, I note and accept that, you are a first time offender. That means you have not been in trouble with the law before. Usually the law exercises some leniency toward first time offenders, which I must ensure you are accorded with.

26.	Thirdly, I note your expression of remorse. However, I do not find this to be genuine in the light of my observation earlier that, you have not paid any compensation or otherwise take steps to appease the wrong you brought upon the victim and her family. The law is that, unless an expression of remorse is accompanied by some tangible acts such as the payment of compensation, it could mean nothing. 

27.	Finally, I note that, apart from the psychological pain and trauma you have caused the victim by your sexual and physical violation of her, you have not inflicted any physical injury to her. Usually, the presence of some physical injury to victims of such violent offences operates against an offender.

28.	Weighing the factors for and against you as well as your personal and family backgrounds, I find that the factors against you seem to outweigh those in your favour. However, I do not find this to be a case that warrants the maximum prescribed penalty as I am not able to find this to be the worse offence of its kind. Your case comes somewhat closer to the case of State v. Peter Lare, or even that of The State v. Thomas Angup. I also find that your case comes closer to the case of The State v. JB. The only significant difference here is that, you are younger than the offenders in these cases. The offenders in these cases were married man with their own children and in fact in the last case, the offender committed the offence against his own children. 

29.	A sentence of 20 years is called for but, given your age and the fact that you did not have a real father and daughter relationship either biological or through adoption, a sentence lower than 20 years is appropriate. I consider a sentence of 18 years is appropriate in all of the circumstances. Accordingly, I impose that sentence against you. Of that sentence of 18 years, I order a deduction of the 5 months 1 week and 6 days being the period you have already spent in custody waiting for your trial and decision on sentence. That will leave you with a balance of 17 years 6 months 2 weeks and 1 day. I order that you serve that part of your sentence in hard labour at the Ningerum Correction Service. A warrant of commitment will issue in those terms.

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