N4527

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 182 OF 2011

THE STATE

V

JOE LELI & PHILIP MATO

Buka:     Kawi   J
2011:     7th, 14th November

CRIMINAL LAW  PRACTICE- Sexual assault of a woman-  Sexual assault- section 349 of the Criminal Code-accused persons pretending to be traditional witch doctors who possessed magical healing powers to heal sick persons- victim a sick women –Accused persons blew lime around her house, also blew lime and touched her body as part of the Magical healing process- With lime all over her body- accused persons touched her vagina in the process of rubbing lime all over her body-both accused persons took turns in inserting their respective fingers into victim's vagina- circumstances of aggravation – both accused persons were in the company of each other-  must reflect the sentencing objectives of deterrence - Sentence must be punitive and a custodial sentence must be imposed upon the prisoners- custodial sentence of nine (9) years appropriate .

Facts

The victim is a married woman. On a night in question, the victim was sick and had stomach problems. The two accused persons held themselves out as witch traditional medicine men or witch doctors or persons possessing special healing powers through the use and invocation of magical powers. Upon such representation to the victim and her husband, they were allowed to examine the victim. First they chewed betelnut and blew lime around the house to get rid of evil spirits. They were then allowed to examine the sick woman in her bedroom.

The two accuseds pleaded guilty of one count of sexually assaulting a sick woman misrepresenting to her that they were traditional medicine men who possessed healing powers and would cast out evil spirits in her and make her well again.
In the process of healing her and casting out evil spirits in her, they applied lime and ginger all over her body including her vagina and genital areas. They both asked her to have vaginal sex with them, as they claimed that an evil spirit had inserted his penis into her vagina and they must do likewise to cast out the devil in her, but she refused.

They were than indicted with one count of sexual assault contrary to section 349(4) of the  Criminal Code (sexual Offences and Crimes against Children's Act 2002

On sentence:

Held: (1)  The offence of sexual assault of a sick woman by men who claimed to be traditional witch doctors or medicine men possessing magical healing powers and who the victim and her husband accepted to perform such magical powers to cure sicknesses constitutes a serious breach of the a relationship of Trust, Authority, or Dependency, that it calls for an immediate deterrent and punitive custodial sentence.

(2)  Sexual offences are becoming prevalent here on Bougainville. Accordingly the Courts must impose strong deterrent and punitive and custodial sentences upon offenders.

(3)      In the circumstances, a deterrent custodial sentence of 9 years will be imposed. To impose a light sentence or a fully suspended sentence is to seriously undermine the gravity and seriousness of sexual crimes and offences.

Cases cited

The State –v- Damien Maigawi [2002] N2419
The State –v- Tioti Malana Unnumbered and Unreported judgement of Lenalia J given on the 12th July 2010.
The State –v- Peter Lare (2004) N2557
The State -v- Joseph Unreported and Unnumbered and Unreported judgement of Sawong J dated 12th July 2010
The State –v- John Ritsi Kutetoa (2005) N2814
In The State –v- Siro Waida (2008) N3311
The State –v- Bensa Siovoro Unreported Judgement of Kawi J dated 15th July 2011 2011. 

Counsel

Mr. Lukara Rangan, for the State
Mr. Michael August, for the Accused

14th November, 2011

1.      KAWI, J:     The accused pleaded guilty to one count of sexual assault of a sick married women contrary o section 349 (4) of the Criminal Code Act.

THE FACTS

2.     The facts to which both men pleaded guilty to are these. At the time of the commission of the crime, the victim was sick. The two accused had represented themselves to the sick woman and her husband that they were traditional witch doctors or medicine men who possessed special healing powers through the use and invocation of spirits and the use of herbs and other traditional medicine. They threw and spread lime around the house, an act that would stop evil spirits from coming any closer to the sick women. After this they were invited by the husband of the sick woman to go into the room where his wife, the sick woman, was sleeping. They approached her and rubbed lime all over her body as an outward manifestation of casting out evil spirits in her body. They also rubbed lime on her body.  In the process they touched her body. Lime mixed with ginger and other traditional herbs was also spread on the vagina of the sick woman and her genital areas. After they spread lime all over her vagina, they took turns and indulged in their own sexual pleasures in inserting their fingers in and out of her vagina.  They told the sick women that the cause of her sickness was an evil spirit who had inserted his penis into her vagina. They should therefore emulate the evil spirit by inserting their own penises into her vagina. After inserting their fingers in an out of her vagina, the two accused then asked the victim for vaginal sex, but she refused and resisted their attempts to have sexual intercourse with her.  She called her husband who came to her aid and chased the two witch doctors out of the room. 

3.     The sick woman and her husband were convinced that the two accuseds possessed magical powers which would cast out evil spirits and make his wife feel well again. In those circumstances, I am therefore satisfied that there was an existing relationship of trust, authority and dependency between the accuseds and the victim.

THE LAW

4.     The relevant provision breached here is s349 of the Criminal Code Act. Section 349 is stated in these 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 breast 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.

5.     Section 349A- Interpretation- defines circumstances of aggravation in this way:

"349A. Interpretation".

For the purpose 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 tortures 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 in committing the offence, abuses a position of trust, authority or dependency; or 

(f) the accused person 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 complainant was pregnant at the time of the offence; or the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome Aids.

6.     The two different circumstances of aggravation which I find to be present here are:

(a) the two accuseds persons were in the company of each other;
(b)  the two accused persons were abusing a position of trust, authority or dependency.

7.     Sentencing is a discretionary process guided by several legal principles.
One of these principles is that the maximum penalty prescribed by Legislation is usually reserved for cases falling into or described as belonging to the worst category of cases.

8.     The facts of this case to which the accused pleaded guilty cannot in my view be described as a case falling into the worst category. That being so, I cannot impose the maximum prescribed sentence exceeding 10 years imprisonment upon you. But that does not mean that this case is less serious than other cases of sexual assaults. 

9.     Another principle which guides the count in the sentencing process is that the Courts will usually take into account factors which operate in favour of the accused persons and factors which operate against the accused person.  These are known as mitigating and aggravating factors. Some mitigating factors are strongly mitigating while others may be mildly mitigating.  The same is true for aggravating factors.  

Here I am unable to record any extenuating circumstances. 

MITIGATING AND AGGRAVATING FACTORS

10.      But I do record the following mitigating factors in your favour:

•	Your early plea of guilty. By pleading guilty very early you saved the court a lot of time and expenses in conducting a full trial.
•	You both are married with children of your own.
•	You both are followers of the Catholic Church.
•	There was no violence and the victim suffered no injuries to her body especially vaginal injuries when the crime was perpetrated upon her. 
•	Both prisoners expressed remorse for the crime that they committed and apologized to the victim and her family. They further apologized to the court.
•	Perhaps the single biggest mitigating factor operating in your favour is your early plea of guilty. 

You did save the court a lot of time and expense the court would have unnecessarily incurred if you had pleaded not guilty.

11.     Operating against you, I record the following:

•	Both accused misrepresented themselves to the victim as to who they really were. 
•	The fact that they represented themselves to the victim and her husband as traditional medicine men and witch doctors possessing healing powers which they invoked to cast out evil spirits to heal the sick women who consented to them touching her body showed there was an existing relationship of trust, authority or dependency. 
•	You cared little and showed no respect at all for the liberty and dignity of a woman, let alone a sick woman. All you cared for was to satisfy your carnal desires and lust for her flesh.  
•	In your lust for her flesh, you performed your magical and healing powers beyond the boundaries of human decency. This includes your suggestion to her that, the cause of her sickness was a evil spirit pushing his penis into her vagina, and the two of you should do likewise by emulating the devil by inserting your own penises into her vagina, shows just how cunning and evil minded you were. 
•	You two were using sorcery and witch craft to induce and prey upon defenceless women to satisfy your own carnal desires and lust for the flesh of a woman.
•	The fact that this crime was committed inside a dwelling house just shows how deceitful you twos were.
•	The two prisoners used ginger and lime to apply to the vagina of the victim.
•	By inserting your fingers in and out of the vagina of a sick woman, you caused more pain and suffering upon an already sick woman.
•	  At the time of committing this offence you twos had consumed intoxicating liquor and were quite drunk.
•	The single biggest aggravating factor against you is that this offence was committed by abusing a position of trust, authority and dependency.

In these circumstances, I do not find the presence of any mitigating or extenuating circumstances, which would have significantly reduced the gravity of the crime you committed.

12. When I balance out these two factors, I find that the aggravating factors heavily tip the scale against the two accused. The eventual sentence I arrive at must reflect and feature one or more of these objectives.  And these objectives of sentencing are:

(a)   Deterrence, (b) Rehabilitation; (c) Restitution; (d) Retribution

13.     The prisoners committed a serious crime against the State, for which they must serve any serious penalties fixed to that crime. To not serve the punishment deserved, will see an increase in the commission of sexual crimes. People will see a court or justice system with no teeth.

SENTENCING TARRIFS

14.     Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point. Usually a good reference point is a sentence in a previous case, against which the case being dealt with can be assessed. For instance, in misappropriation cases a convenient starting point for judges has always been the case of Wellington Belawa – v- the State. The judge assess whether the case being dealt with is more, or less serious than the starting point case. If it is serious to what extent is it more serious or less serious?

15.     The Supreme Court in James Mora Meaoa v The State [1996] PNGLR 280 clearly stated that an offence committed in a breach of trust situation renders the Commission of the offence very serious.  In so doing it held that a breach of a position of trust is an aggravating factor in sexual offences and warrants a heavier sentence.  It also held that positions of trust are not limited.  

16.     I now consider the sentencing tariffs from previous sentences as a good reference point. In The State –v- Damien Maigawi [2002] N2419, the offender pleaded guilty to one count of sexual penetration of a 3 year old victim. He was sentenced to 12 years in prison. In The State –v- Tioti Malana Unnumbered and Unreported judgement of Lenalia J given on the 12th July 2010, the accused, who was the biological father of the victim was found guilty of sexual penetration of a girl under the age of 16 years. He was convicted and sentenced to a jail term of twenty five years.  In The State –v- Peter Lare (2004) N255, the accused pleaded guilty to one count of sexual penetration of a girl under 16 years old.  The accused was in a position of trust, authority and dependency with the victim.  He was sentenced to 20 years jail in hard labour less the time spent in custody awaiting trial.

17.     In The State v- Joseph Ureap Unnumbered and Unreported judgement of Sawong J dated 12th July 2010, the accused, a 44 year old man was charged for sexually penetrating his biological daughter contrary to section 229A of the Criminal Code. He was convicted and a prison sentence of twenty years was imposed upon him.

18.      In The State –v- John Ritsi Kutetoa (2005) N2814, Cannings J imposed a sentence of seventeen years in hard labour. In that case there existed a relationship of trust which the prisoner had breached. The victim was the prisoner's step daughter. 

19.     In The State –v- Siro Waida (2008) N3311, Kandakasi J imposed a jail term of seventeen years on a guilty plea  for one count of  sexual penetration of the victim who was 14 years old at the time. 

20.     In The State –v- Bensa Siovoro, Kawi J sentenced a 20 year old Tinputz man to twenty years in prison which was reduced by 4 years to16 years. The prisoner there had sexually penetrated her own step daughter, who at that time was 15 years old. She became pregnant and gave birth to a son.

21.     All these cases have one thing in common. They clearly show that the Courts will impose very stringent range of sentences in sexual offences concerning young girls.  The cases further show that Courts can no longer tolerate abuse and sexual exploitation of young girls and children under and between the age of 16 and 18 years. The sentencing tariffs from the cases referred to show a range of sentences of 12 to 25 years. 

22.    I note that the offence you committed contravenes Section 349(4) of the Criminal Code Act which carries a maximum penalty of a sentence not exceeding 10 years.

23.     In submissions learned defence Counsel, Mr. August submitted that the victim did not suffer injuries to her body especially, the vaginal areas and no other form of indignities were perpetrated upon her by the two prisoners. He further submitted that the two men did not have any prior convictions of sexual assaults against them. He asked the court to take all this into account when sentencing his two clients. State Prosecutor, Mr Rangan on the other hand submitted that the sexual offences were now becoming prevalent here on Bougainville. The Court should therefore impose heavy custodial sentences. This should than serve as a deterrent to the Prisoner as well as a warning to other would be offenders.

24.     In my view to punish the offenders by imposing very light sentence or to punish an offender by imposing a fully suspended sentence is to seriously undermine the gravity and seriousness of sexual crimes. This would defeat the intention and rationale behind the enactment of the Criminal Code (Sexual Offences and Crimes Against Children's) Act 2002.  This amendment has now seen a marked increase in the penalty regime of the various sexual crimes prescribed in the amendment. Consequently, judges have imposed heavier penalties upon offenders.

25.     Parliament passed this Legislation amidst growing concerns over the need to protect women, girls and young children in our country.  Parliament then was of the view that this category of our population were rather defenceless and more prone and vulnerable to sexual exploitation and sexual abuse.  

26.     Furthermore it was concerned that penalties being imposed on offenders by the courts were rather too lenient.  It wanted the Courts to impose heavier penalties upon offenders who prey upon defenceless females and commit various acts of sexual crimes upon women and children.  Parliament has now confirmed just how serious it is to abuse a position of trust, authority or dependency This can be gauzed by making reference to the various penalty regimes created for the various sexual offences. For instance section 229E, now carries a maximum sentence of 15 years demonstrating just how serious Parliament was when it made amendments to the Criminal Code.  In your case the State alleges two aggravating factors against you two. The first is that you twos were in the company of each other when you committed the offence. Secondly your relationship with the victim was quite close in that she trusted and depended upon you two to heal her using your magical healing powers. You both were therefore in a position of trust, dependency and authority with the victim. 

VERDICT

27.     In my view such abuse of a special relationship of trust, authority and dependency calls for a strong, deterrent and punitive custodial sentence to be imposed.  

28.     Following the authorities of the cases cited above, and more particularly taking heed of the warning expressed by the Supreme Court in The State –v- James Mora Meaoa case, it would be remiss of me to impose a wholly suspended sentence, on what is otherwise a very grave and serious offence of breach of trust and authority.

29.     Therefore, I would impose a custodial head sentence of 9 years upon you to be served in jail in hard labour.  Taking into account, the mitigating factors operating in your favour, I suspend 2 years and instead impose a sentence of 7 years upon you to be served in hard labour at the Bekut jail outside Buka town. I will also order that any pre trial custody period be reduced from the 7 years prison sentence. Finally any cash bail monies paid on account of your bail are to be fully refunded. 
_____________________________________________
Paraka Lawyer: Lawyer for Prisoners              
Public Prosecutor: Lawyer for the State