N5075

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 980 OF 2011

THE STATE

V

ARTHUR TANGI (NO.3)

Kokopo: Lenalia, J.
2012: 15th, 17th, 22nd & 23rd August

CRIMINAL LAW – Charge – Sexual penetration – Criminal Code (Sexual Offences and Crimes Against Children) Act – Section 229A(2)(3). 

CRIMINAL LAW – Sentence after finding of guilty – Matters for consideration on sentence – Breach of trust – Relationship of trust, authority or dependency – Victim under age of 12 years at the time of the offence – Close relative of prisoner – Victim the niece of the prisoner – Daughter of his blood sister. 

Cases cited

John Elipa Kalabus v The State [1988] PNGLR 193
The State-v-Sottie Apusa [1988-89] PNGLR. 170
The State-v-Mitige Neheya [1988-89] PNGLR. 174
The State-v-Penias Mokei (No.2) (2004) N2635
The State-v-Biason Benson Samson (2005) N2799
The State-v-Thomas Tukaliu CR.N0.910 of 2005
The State-v- Ndrakum Pu-Uh (2005) N2949
The State-v-Thomas Angup (21.4.05) N2830
The State-v-John Ritsi Kutetoa (22.3.05) N 2814
The State-v-Esrom Tiama (13.4.06) N3054
The State-v-Kaminiel Okole (2006) N3052
The State-v-Peter Lare (20.5.04) N2557
The State-v-Eddie Trosty (20.5.04) N2681
Stanley Sabiu-v-The State (2007) SC866

Counsel

Mr. L. Rangan, for the State
Mr. D. Wapu, for the Accused

23rd August 2012

1.	 LENALIA, J: The prisoner Arthur Tangi was found guilty on 15th of this month on one count of sexually penetration of an under aged girl who was at the age of 9 years with circumstances of aggravations pursuant to s.299A(2)(3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. Under these two Subsections an offender can be sentenced to life imprisonment. 

2. After finding the accused guilty, he was called upon to show cause pursuant to s.593 of the Criminal Code.

Allocutus

3. In his final say, the prisoner said, he has been found guilty and he said sorry for taking up the Court's time. He said sorry to the victim and her parents and village authorities. He asked the Court to consider his illness on sentence. He said, he had paid compensation to the victim and her relatives and the Court should consider this in his favour. 

Address on Sentence by Defence Counsel

4. Mr. Wapu of counsel for the prisoner spoke to his 20 pages written submission. Counsel submitted that the issues for the court to consider are was this case a serious case of sexual penetration and secondly, what should be an appropriate penalty. Counsel cited some case law authorities which I will refer to some of them a little later. He asked the court to consider the following mitigations:

•	Prisoner's age who is now 66 years old. 
•	Compensation paid.
•	No gun was used to threaten the victim.

Address on Sentence by Prosecution

5. For the State, Mr. Rangan asked the court to consider the penalty provisions. He asked the court to consider the prisoner's previous conviction of 5 years sentence by the National Court for the offence of sexual touching of the same victim. Other aggravations such as:

•	Persistent sexual abuse,
•	Threats applied to the victim,
•	Non consent by the victim,
•	Breach of trust,
•	Large age gap between the prisoner and the victim.

6. Counsel asked the court to consider an appropriate sentence.

Law

7. The accused is charged with the crime of sexual penetration against s.229A (2) & (3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. As the prisoner heard at the introduction of this judgment, the court said, the maximum penalty provided for the above offences is life imprisonment. 

8. There are two aggravating circumstances involved. First the victim must be under the age of twelve years and secondly, if there is an existing relationship of trust authority or dependency.

9. The definition of relationship of trust, authority or dependency is provided for by s.6A (1) (2) of the Act. This provision states:

"6A.RELATIONSHIP OF TRUST, AUTHORITY OR DEPENDENCY.
 
(1)When the term "relationship of trust, authority or dependency" is used in the definition of the 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

(e) the accused is a religious instructor to the complainant; or 

 (f) the accused is a counselor 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." 

10. The Criminal Code also defines circumstances of aggravations. Thus s.1 of the Criminal Code defines the phrase circumstances of aggravation in the following words: 

"circumstances of aggravation" "includes any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance."

11. The prisoner's case falls under Subsections (2) and (3) of Section 229A of the Act. He committed the crime of sexual penetration once only. And although it was a one-off incident only, the prisoner is liable to a greater punishment than one where he would have been liable if circumstances of aggravation were not present. 

12. I should also quote s.229A which says:

"(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."

13. In fact the prisoner could be sentenced today to life imprisonment according to s.229A (2) & (3) of the Act. The public must be aware that there is a law protecting the young girls, young women and the mothers alike. Sexual abuse of young children in this Province and this country as a whole is quite prevalent. 

14. Very young girls are abused at early ages as was the case in the instant case. A victim at the age of 12 or 14 years is a child of tender age and is not capable of having sexual relations with anyone. The courts look at these kinds of abuses to be very serious. 

15. The prisoner's case was a one off incident. However it was aggravated by two factors. First, the age of the victim was under 16 years. The law protects children and particularly the under aged ones because they are weak and incapable of deciding on what is the difference between good and evil. This is the reason why the new law on sexual offences is very specific.

16. The prisoner in the present case abused his nephew from 2009 to 2010. I am persuaded by the concept and scheme of the legislation concern that, the courts be it the District Court or National Court need to give effect to the scheme and policy behind the new law, which is to treat sexual offenders against children more seriously and severely. 

17. Mr. Rangan's submission accords with common sense and contemporary values and concerns prevailing at this time about some nine years after the Amendment of the Criminal Code were effected in April 2003.

18. Sexual abuse of young girls in this country is very prevalent. The law protects children as much as adults. People like the prisoner take advantage of young girls like the victim and have sex with them because they threaten them and abuse them as though, those young victims are toys to play around with. 

19. Breach of trust is of the most severe kind where sexual abuse takes place in a homely environment. In particular when it occurs between parents and children, brothers and sisters, mothers and sons and the extended family as defined by s.6A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, see also s.229E. (See The State-v-Mitige Neheya [1988-89] PNGLR 174 & The State-v-Sottie Apusa [1988-89] PNGLR170

20. There is nothing that can be considered in favour of the prisoner. Mr. Wapu of counsel for the prisoner urged the court to take into account his client's condition of health and the fact that he had paid compensation. Certainly, the Court will consider the fact that the accused had paid compensation. But compensation is not paying for someone's crime like in the instant case where the accused abused his nephew from 2009 to 2010. 

21. Yes it could also be said that, the prisoner is not a youth and he should have been more wiser than he was at the time he committed this crime against his own nephew. 

22. I have considered the sentencing guidelines set out in The State-v-Penias Mokei (No.2) 2004 N2635 by Cannings, J. I consider the fact that, the trend of persistent abuse continued for almost two years until the accused was found out, makes it one of the worse of its kind. 

23. As I said in The State-v-Thomas Tukaliu CR.N0.910 of 2005 unreported judgments and decision of 22nd of February 2006, the worst type of abuse of underage female victims is the type that occurs within the family circle, extended family unit or within the family itself. 

24. On the instant case, as the Court found, there is the element of betrayal of trust that the victim in this case can repose on the prisoner because the victim is the daughter of the prisoner's blood sister. Evidence by Theresia Towes and Valar Lubang show clearly the prisoner is an uncle to the victim. 

25. Circumstances of aggravation were pleaded on indictment as well as the evidence on trial clearly establishes that, the prisoner was not affected by any mental incapacity or any form of illnesses when he committed the crime of sexual penetration on his nephew. 

26. The prisoner's antecedents show that he attended Tavui Primary School but does not show what level he reached. Young people would expect that older folks should live by example. But in the instant case, it was the opposite. Sexual offences are on the rise as we see from the criminal list in this Province. You are an elderly person and the State's evidence shows that, you breached the trust reposed on you by the victim. There are a number of serious aggravations in this case.

27. First, on the difference in age. At the time of the offence of sexual penetration, the victim was at the age of 12 years. Though, I may have not referred to this point in the decision on verdict, I raise it here and now. The reason I did not raise it is because, the indictment does not contain the exact date on which the victim was born. 

28. If the offence took place earlier than her birth date, (20.8.09), then the prisoner is caught under Subsection (2) of the Section charged. And because you committed this offence with existing relationship of trust, authority or dependency, you could be sentenced to life imprisonment.

29. The next aggravation is that the prisoner breached the trust reposed on him as an uncle of the victim. The case of The State-v-Sottie Apusa (supra) establishes that where a sexual offence of this nature is committed between persons having close relationship, it' s an aggravation. 

30. Further the case of The State-v-Penias Moke (No.2) (supra) establishes that, the more closer the relationship to an accused is to the victim, the penalty ought to be higher. In your case the court found that the victim is your niece. She would address you as "uncle". 

31. Because you denied the allegations, the victim had to be called to give and made to recall her painful experience you imposed on her. She was examined and cross-examined in the open court in open description of sexual language which is not common in every day conversation. 

32. She was made to relay to the court and the public the shameful acts that you committed against her. You abused the victim for two confirmed occasions. Once or twice on sexual touching one of which you have been convicted for and the present one of sexual penetration. 

33. In considering the circumstances of a particular case, Cannings J. in The State-v-Biason Benson Samson (2005) N2799 restated a list of considerations for sentencing in respect of child sexual penetration cases that he had previously mentioned in The State-v-Pennias Mokei (No 2) (supra). These considerations were adopted by Lay J in The State-v- Ndrakum Pu-Uh (2005) N2949. 

(a) Is there only a small age difference between the offender and the victim? 

(b) Is the victim not far under the age of 16 years? 

(c) Was there consent?

(d) Was there only one offender? 

(e) Did the offender use a threatening weapon and not use aggravated physical violence? 

(f) Did the offender cause physical injury and pass on a sexually transmitted disease to the victim? 

(g) Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one? 

(h) Was it an isolated incident? 

(i) Did the offender give himself up after the incident?

(j) Did the offender cooperate with the police in their investigations? 

(k) Has the offender done anything tangible towards repairing his wrong such as offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? 

(l) Has the offender caused further trouble to the victim or the victim's family since the incident?

(m) Has the offender pleaded guilty?

(n) Has the offender genuinely expressed remorse?

(o) Is this his first offence? 

(p) Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? 

(q) Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? 

34. I adopt the above considerations and apply them to the circumstances of the instant case.

35. I am of the view that the above considerations are useful guidelines to be considered in sentencing for child sexual penetration cases. I emphasize here the fact that it is for the trial judge to determine the sentence to be imposed after having regard to all of the circumstances of the particular case before him.

36. On the trend of sentencing in sexual penetration of girls under the age of 16 years, sentences vary from case to case depending on the nature of each case. In The State-v-Thomas Angup (21.4.05) N2830 where the prisoner was charged with various counts of sexual penetration and sexual touching of an under aged girl. He was convicted on his plea. The victim was aged 12 and the prisoner was 34 years. It was a case involving breach of trust. Lay J, sentenced the prisoner to 20 years imprisonment.

37. In The State-v-Esrom Tiama (13.4.06) N3054, the prisoner pleaded guilty to one count of sexual penetration under s.229A (1) aggravated by an existing relationship of trust, dependency and authority. The victim was only 9 years, the accused must have been 50 years. This court sentenced the offender to 12 years. Two years were suspended with condition to be placed on good behaviour bond after service of the total sentence. 

38. In The State-v-Kaminiel Okole (2006) N3052, this court sentenced the prisoner to a term of 17 consecutive years of imprisonment and another 5 years ordered to be served concurrently on the head sentence. The accused in that case was charged with two sexual penetration cases and one case involving breach of trust, authority and dependency. 

39. In The State-v-John Ritsi Kutetoa (22.3.05) N 2814 a case in Buka, Cannings J; sentenced the offender to 17 years for a similar offence. The victim in that case was under the age of 12 years. That case was aggravated by a number of factors such as the age, very large age difference, and there was no consent from the victim. As well the offender caused physical injuries to the victim. 

40. In an earlier case in that of The State-v-Peter Lare (20.5.04) N2557 before Kandakasi J; the victim in that case was under the age of 12 years. It was the case of persistent sexual abuse and there was a very big age difference between the victim and the offender. He was sentenced to a term of 20 years imprisonment.

41. In The State-v-Eddie Trosty (20.5.04) N2681 a case in Lorengau, Manus Province before the Kandakasi J, a sentence of 6 years was imposed for a similar offence. It was a case of consensual and persistent sexual penetration of a 15 year old victim. In that case the offender cooperated with the police during the record of interview. There was no aggravated physical violence. The offender pleaded guilty. 

42. Recently in the Supreme Court case of Stanley Sabiu-v-The State (27.6.07) SC866 it sets out some general considerations for a sentencing judge to consider when sentencing an offender for sexual penetration of under-aged children. Sexual penetration of under age children is a heinous crime. 

43. As to an appropriate sentence to be imposed in the circumstances, in the Supreme Court decision of Stanley Sabiu-v-The State (supra) after reviewing five (5) various National Court decisions in relation to or concerning Section 229A(1)(2)(3) Criminal Code, the Court said at the last sentence of paragraph 9 and paragraph 10:

"In 5 cases where the victims were between 13 and 15 years of age, sentences of imprisonment imposed were 20, 17, 15, 12 and 10 years.

The general principles of sentencing provide that the maximum sentence is reserved for the worst cases: Maima v. Sma [1972] PNGLR 49. The maximum sentence for sexually penetrating a child under the age of 16 years is 25 years imprisonment and the maximum sentence for sexually penetrating a child under the age of 12 years is life imprisonment. What should the starting point be in such cases? In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that the sexual penetration of children under the age of 12 years is the more serious, hence the larger maximum penalty. In The State v. Biason Benson Samson (supra) Cannings J. determined that the starting point in a case involving a 13- year-old victim was 15 years imprisonment. We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than 15 years imprisonment." 

44. As to a starting point in a case involving a 12 year-old victim, I am of the view that it should be at least 15 years imprisonment taking into account the above comments and the fact that the law does not recognise consent by a girl under the age of 12 years or 16 years respectively as a defence. I will proceed on this basis accordingly. 

45. In regard to the age difference of the victim and the prisoner, the prisoner's antecedents say he was born on 28th August 1948. And in considering his position with reference to the guidelines approved in Sabiu's case (supra), up to the year 2009 was 61 years age difference between him and the victim. That was a large age difference. There was evidence by the victim that, the prisoner threatened her before he sexually penetrated her. 

46. There is further evidence that after sexual intercourse, the accused again threatened her not to tell anyone about the stories of what was happening between her the prisoner. 

47. There was no consent and a bush-knife was used to threaten the victim. If the medical report was tendered, the court should have the advantage of finding out if the victim suffered any injuries or not. 

48. I expressed in the ruling on verdict that, even if such report was tendered, the offence took place in 2009 and the likelihood of finding any injuries would be very slim. There is no evidence of reparations or any further trouble, and the prisoner pleaded not guilty. He has shown remorse when allocutus was administered to him. He is not a youthful offender.

49. Two other considerations need to be mentioned. First the prisoner in this case has eventually said in his allocutus, he is sorry for what he did to the accused. If he does not know, the Bible in Exodus chapter 12 says that if someone lies, "Be sure your sins will find you out". Secondly, your case went by trial. According to the case of John Elipa Kalabus v The State [1988] PNGLR 193 at 197, where an accused makes an expression of remorse early after the commission of an offence, the more favourable it would be for the accused. 

50. But it was said that contrition and remorse expressed at or after the trial weighs very lightly. As stated in the above case, remorse and contrition are usually matters to be weighed on sentence in favour of an accused if they are manifested in a plea of guilty. 

51. In the circumstances of the instant case, there are various elements of betrayal of the trust which the court has mentioned on this discussion. The victim reposed trust in you as an uncle. You are an elderly person and to commit such an offence like the one you committed on the victim is out of logic and nonsensical. 

52. Your role with kids like the victim would be akin to those of a teacher or a mentor for younger generations. Instead you defiled your own blood niece. This is very serious. I consider the fact that you are now age 66 years. 
 
53. It is my view that a deterrent custodial sentence should be imposed. Considering counsels addresses on mitigations and aggravations and considering the terms of the pre-sentence report which does not have any input from the prisoner's wife or people like the education authority of this Region, the prisoner stands alone in this case. 

54. The prisoner is sentenced to a term of 9 years imprisonment. The court suspends 5 years from that sentence on condition that he shall pay a further 100 fathoms of Tolai shell money to the victim and her mother. The balance of 4 years shall be served cumulatively upon the sentence imposed for the offence of sexual touching. After his release, he shall be on recognizance to keep the peace and be of good behaviour for 2 years. 

53. Any time spent in custody shall be deducted from the period he is to serve. The imprisonment term shall be served at Keravat Jail.

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