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State v Siname [2009] PGNC 213; N3908 (8 December 2009)

N3908

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1698 OF 2005

THE STATE

V

STEVEN SINAME

Kokopo: Lenalia, J.
2009: 20th November, & 8th December

CRIMINAL LAW – Persistent sexual abuse of biological sister – Plea of
guilty – Factors for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act s.229D (1).

CRIMINAL LAW – Sexual penetration of biological sister – Circumstances of aggravation – Blood sister, victim under age of 16 years and sex persistently committed – Deterrent sentence called for.

Cases cited

Public Prosecutor v Terrence Kaveku [1977] PNGLR 110
Ando Kenene v Gabriel Simon, Alois Gabuor and George Taper [1983] PNGLR 179
Mase v The State [1991] PNGLR 88
The State v Peter Lare (2004) N2557
The State v Thomas Angup (21.4.05) N2830
The State v Kuyaps Toki Jonathan (2008) N3315

Counsel:

L. Rangan, for the State
G. Kerker, for accused

8th December, 2009

1. LENALIA, J: The prisoner pleaded guilty to three counts of persistent sexual abuse of his biological sister T. S. (Theresa Siname). Between 1st December 2004 and May 2005, the prisoner engaged in persistent sexual intercourse with the victim when she was 15 years old. This is an offence against s.229D (1) (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act.

2. The maximum penalty for the offence is 15 years. However if the offence is committed with circumstances of aggravation, the maximum penalty is imprisonment for life. The court can impose a lesser sentence by applying s.19 of the Criminal Code which gives this Court the sentencing discretion. Section 229D states:

"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 the crime of persistent abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) For purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(a) the court must be satisfied beyond reasonable doubt, that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and

(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be satisfied about the dates or the order of those occasions.

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and liable, subject to Section 19, to life imprisonment."

Brief facts

3. The victim in this case tells the story of how the prisoner started to abuse her. On an unknown date in December 2004, at Sikut/Talvat, the prisoner came to the family resident when her parents, brothers and sisters were all away.

4. On the first occasion, the prisoner came to his parents’ house and found that there was no body home except T. S. It was day time and he came from his house and having found no one except the victim, he asked her if she could have sex with him. She refused and told the prisoner that, she did not want because they are closely related as a brother and sister as they were born from the same father and mother.

5. The prisoner insisted that they should have sex and they had it the first time in their parents’ house. The victim says in her statement to the police dated 27th July 2005 that, that occasion was the beginning of many times the prisoner sexually abused her. Whenever the prisoner wanted to have sex with the victim, he usually comes around at day time so they would have sex because other members of the family were away.

6. Sometimes, he would come to the parents’ house with phonographic books when their parents were not in and show naked pictures to the victim to arose or motivate her sexual feelings before sexual intercourse took place. They continued this relationship until the victim got pregnant.

7. On 9th of July that year, she gave birth to a baby but, it died soon after it was born. The victim said, the baby which died belonged to the prisoner. The matter came to light and it was reported to the community leaders at Sikut/Talvat who then reported to the Sexual Offences Squad at Kokopo Police Station.

Address in allocutus

8. On his last say, the prisoner said he is sorry for committing these offences against his biological sister. He said sorry to his parents and his brothers and sisters. He also extended his sorrow to Sikut/Talvat community leaders. He asked the court to consider his guilty plea to the three charges saying he did not deny the charges and the court should consider leniency on sentence.

Address on sentence by defence

9. Mr. Kerker of counsel for the prisoner submitted a number of factors for the court to consider on sentence. Counsel submitted the following mitigations:

- prisoner’s guilty plea,

- the remorse shown for what he did to his sister,

- his previous good character.

10. Counsel admitted that the offence is serious. In the course of his address, counsel submitted that, this case is not the worst type case. The court does not agree with that part of the defence counsel address in which the tries to trivialize the issue of persistent sexual penetration. What is clear is that, the offence was committed with breach of trust pursuant to Subsection (6) of the section charged is sufficiently serious warranting imposition of life imprisonment. Counsel asked the court to be lenient with his client saying he has a young child and his wife to look after.

11. On the pre-sentence and means-assessment reports, counsel submitted that the court, should consider issues addressed in the two reports. On the part of the offender, he told the writer of the two reports that, he is willing to go back to the village and prepared to look after his brothers and sisters. He is the first born in the family of nine (9) siblings, with him being the first born. The means assessment report concludes that although the prisoner may be willing to compensate the victim, his parents are both deceased and it may take sometime for him to effect reconciliation.

Address on sentence by prosecution counsel

12. For the State, Mr. Rangan made a brief reply by saying that the offence of sexual abuse committed on the victim was repeated many times over until the victim got pregnant. Counsel argued that, what the prisoner did was a shame to the Tolai community and particularly to the members of his own family and the general community at Talvat/Sikut.

13. Counsel asked the court to consider aggravating factors such as the relationship of the victim to the prisoner, the age difference, and the victim was impregnated and consider an appropriate penalty.

Application of law to the facts

14. The offence of persistent sexual abuse has two pronged categories of circumstances. The first element deals with general situations where the offence is committed between persons who are unrelated to each other.

15. Under such category, an offender faces the maximum of 15 years imprisonment. This category is the subject of 229D (1) of the Act. The prisoner’s case does not fall under this sub-section.

16. The second category is the aggravating circumstances aspect. Members of the parliament have considered that, persons who commit sexual crimes involving circumstances of aggravations must face the consequences of facing long terms of imprisonment.

17. In the past usually the State would indict for the similar offence under s.223 of the Criminal Code. That was because the former proviso provided for life imprisonment. Presently, if the offence of incest is committed, the prosecution decides what charges it will lay. This is exactly what the State had done in the instant case.

18. The prisoner’s case falls under the second category involving aggravating circumstances. The prescribed penalty in the section is life imprisonment. Circumstances of aggravation are defined in s.349 in the following terms:

"349A. Interpretation.

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where –

(a) the accused person is in the company of another person or persons; or
(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or
(c) at the time of, or immediately before or after the commission of the offence, the accused person tortuous or causes grievous bodily harm to the complainant; or
(d) the accused person confines or restrains the complainant before or after the commission of the offence; or
(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or
(f) the accused is a member of the same family or clan as the complainant; or
(g) the complainant has a serious physical or mental disability; or
(h) the complaint was pregnant at the time of the offence; or
(i) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS)."(Emphasis added)

19. There are very serious aggravating circumstances involved in this case. Obvious as it is from the undisputed facts, and the section charged in the body of the indictment, the prisoner’s cases involved persistent sexual intercourse with the victim. In fact, the facts show that sex between the victim and the prisoner commenced in December 2004 and ended in May 2005 after the affair came to light.

20. In The State v Peter Lare (2004) N2557, the offender was aged 40 years who adopted the victim when she was small. Though there was no aggravated physical violence, the prisoner passed sexually transmitted disease to the victim. The facts revealed a pattern of persistent sexual abuse over a period of 2 years. It was a case of serious betrayal of trust and he was indicted under s.229A (1) of the Act. It was a guilty plea and the offender had not shown remorse. Kandakasi J sentenced him to 20 years.

21. In The State v Thomas Angup (2005) N2830, a total aggregate sentence of 20 years was also imposed on the prisoner who had persistent sexual abuse of a very young girl. That case was one that was the subject of persistent abuse of sexual nature when the victim was 12 years old and continued over a period of six years even after the complaint had been filed with the police.

22. There were altogether 4-6 counts of sexual touching to sexual penetration of the child under the age 12 and 16 years and persistent sexual abuse of a child but charges were laid under sections 229A (1) and (2) and 229B of the Act. The victim was a stepdaughter of the prisoner. He married the victim’s mother. She was one of the four children of the wife’s previous marriage. The prisoner has five children in his marriage with the victim’s mother.

23. Last year in Tabubil, in The State v Kuyaps Toki Jonathan (2008) N3315, the prisoner pleaded guilty to one count of persistent sexual abuse pursuant to s.229D (1) & (6) of the Act in breach of the relationship of trust. The offender in that case left his home village in the Telefomin area on the West Sepik Province and came and lived with that family on Wangbin Village, in Tabubil, Western Province.

24. Whilst being accommodated by that family, between July 2006 and January 2007, he committed 4 different acts of forceful sexual penetration of the couple’s small daughter then aged 13 years old. Kandakasi J sentenced the prisoner to 18 years.

25. In consideration of an appropriate penalty for the prisoner, I take into account his guilty plea to these serious charges. I also take into account your counsel’s plea for a lenient sentence. I have read the pre-sentence and means-assessment reports which comment that, although this is a serious charge, the court should consider leniency.

26. All those submissions do not take into account the serious nature of the crimes committed by the prisoner. The Courts should not create the impression that sex committed within the family circle is not serious.

27. To adopt the submission by the defence counsel that this case does not fall in the worst type category of sexual cases is or would be nonsensical and totally a wrong approach to adopt because, the present case presents itself under circumstance of aggravations under s.229D (1) and (6) of the Act.

28. On sentence, I take in to account the principle of law in relation to the totality principle which says that, where an accused is charged with a number of offences and where consecutive sentences are contemplated, a final review should be made to make sure that the total sentence is not excessive.

29. The principle on this area of law is that, the total sentence should be just and appropriate in all the circumstances of the case before the court: Public Prosecutor v Terrence Kaveku [1977] PNGLR 110, Mase v The State [1991] PNGLR 88 (see also Ando Kenene v Gabriel Simon, Alois Gabuor and George Taper [1983] PNGLR 179.

30. I take into account the above principle and the sentencing trends which have been developed on similar cases. I also consider the fact that each case depends on its own peculiar circumstances.

31. I consider the fact that though no injuries were caused to the victim, she was impregnated and gave birth to a child, but it died.

32. The future of the young woman in this case has been totally ruined. She will leave with the shame. There are many victims out there who may suffer from sexual abuse under similar circumstances as was in the instant case. They may live in fear due to threats put to them by men and do not want to report because the relationship between them and the male actors is very close as was in the instant case.

33. I would urge those girls or women for that matter who suffer under similar circumstances as was in the current case to come out and do the right thing by reporting to the Sexual Offences Squad in Kokopo.

34. Women and girls ought to know why the above office was established. It is there to assist our women and girls to fight against violence and sexual abuse of our women.

35. The prisoner in the present case was the first born in the family and should have known better than the victim. Your case involves persistent incestuous relationship with you blood sister. Your case was not a one off incident as was in some of the cases I have referred to above.

36. Having considered the above factors, for counts 1 and 2, the Court imposes cumulative sentences of 28 years. For count 3, I impose a concurrent sentence of 10 years. The time you have spent in custody shall be deducted from the sentence of 28 years. The court will suspend 5 years from the balance on condition that after you have served the balance, he shall keep the peace for 2 years from the date of his release.

_______________________________________
The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused