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State v Kariva [2013] PGNC 376; N9040 (27 September 2013)

N9040


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 252 (NO.2) OF 2007


THE STATE


V

JOHN KARIVA


Popondetta: Toliken, AJ
2013: 20th, 27th September


CRIMINAL LAW – Sentence after trial – Persistent sexual abuse – Biological father/daughter relationship – Serious breach of trust –Penetration – Use of threats and actual violence to secure submission – Victim sustained injuries – Education disrupted – Pregnancy ensued – Interest and welfare of child victim of paramount importance – Purpose of sentence – Punishment and separation of prisoner from victim – Appropriate sentence – 23 years less time in custody – Criminal Code Ch 262, s 229D (1)(6).


Cases Cited


Aubuku v The State [1987] PNGLR 267
Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
The State v Billy Paulo (2013) N5286
The State v Tigi (No.2) (2013) N5310
The State v Makis (2012) N4888
The State v Danny Tutuve (2011) N4400
The State v Ben Sakias (2011) N4238
The State v Steven Makai (2010) N3914.
The State v Steven Siname (2009) N3908
The State v Kuyaps Toki Jonathan (2008) N3315
The State v Ereman Kepas (2007) N3192
The State v Joe Mui; CR 1495 of 2010
The State v Martin Willie; CR 541 OF 2010 (Unreported and unpublished judgment dated 12th December 2012)


Counsel


J. Waine, for the State
J. Mesa, for the Prisoner


SENTENCE


27th September, 2013


  1. TOLIKEN, AJ: The prisoner John Kariva was found guilty after trial for persistently sexually abusing her biological daughter, a child under the age or 16 years, thus contravening Section 229D (1)(6) of the Criminal Code. As the offending in this case involved penetration, the prisoner is liable to be sentenced to life imprisonment, subject to the Court’s discretion to impose a lesser or alternate sentence under Section 19 of the Code.

FACTS


  1. The facts upon which the prisoner is to be sentenced are these. The victim is the prisoner’s biological child - her first-born daughter. In 2003, when she was 11 years old, she was enrolled at Baiyi Primary School which was more than a day’s walk from her village of Guruguru to do her Grade Three as there was no Primary School at her own village.
  2. However, not long after the school year started the prisoner came and took her out of school. On the way back to Guruguru, night fell upon them at Foru Village and the villagers allowed them to use one of their houses. In the middle of the night the prisoner removed his daughter’s skirt and had sexual intercourse with her. He sexually penetrated her twice that night. The next morning, they continued their trek back to Guruguru.
  3. The incident at Foru was the beginning of what became a pattern of persistent sexual abuse when the prisoner and the victim returned to Guruguru. The abuse persisted until the victim became pregnant and gave birth to a child in August 2005, which, eventually resulted in the arrest of the prisoner.
  4. On one occasion, the prisoner followed the victim to a nearby swamp. He demanded for sex and again sexually penetrated her vagina. After that he again threatened to kill her if she reported to anyone. The victim, however, went home and reported the matter to her mother, who, unfortunately did not do anything as she was afraid of her violent and abusive husband.
  5. Then on another occasion in 2004 the prisoner, the victim and her younger sisters went to their garden. While there the prisoner wanted to have sex with the victim, but she refused. He assaulted with a spear inflicting a wound to her left biceps. He then sexually penetrated her and threatened to kill her if she told anyone. The victim eventually got pregnant possibly towards the end of 2004, and gave birth on 15 August 2005 (See The State v John Kariva; CR NO. 252 of 2007 (NO.1) (Unreported judgment 17 September 2019) for judgment on verdict.

ANTECEDENTS


  1. The prisoner was about 25 years old when he committed this offence. He is married with four (4) children, the oldest of whom is the victim.
  2. In his plea in mitigation the prisoner said the following:

“I wish to say sorry to the court. I say sorry for breaking and I say sorry to God. I say sorry to you, your Honour, the Associate and the State. And I say sorry to the victim and to the Oro community and to my community, church and council.


I ask the court to have mercy on me and consider good behaviour bond or probation for me so that I could reconcile with the victim. I have 2 hectares of Cocoa and 1,000 coconut trees. My son is doing Grade 4 at Baiyi but I don’t know if he is attending school or not. Thank you, your Honour. That is all”.


SUBMISSIONS


  1. Mr. Mesa of counsel for the prisoner acknowledged that there are aggravating factors in this case and that the circumstances are indeed serious. However, he said that there are mitigating factors including the fact that the prisoner is a first-time offender, had apologised for his crime and is willing to pay compensation to the victim. Counsel submitted that an appropriate sentence ought to be 15 – 20 years.
  2. For the State Mr. Waine submitted, inter alia, that the gravity of this offence is such that it renders any plea for leniency insignificant. He said this case is one that should appropriately attract a very stiff sentence in the range suggested for rape by Aubuku v The State [1987] PNGLR 267, notwithstanding that the tariffs there are now out-dated.
  3. Counsel submitted that there are significant aggravating factors against the prisoner. The victim suffered injuries, had to re-live her traumatic experience in Court, conceived a child, was kept a virtual prisoner for the prisoner’s sexual gratification and there was a serious breach of trust. Counsel therefore called for sentence between 20 – 23 years.

THE OFFENCE


  1. The offence of persistent sexual abuse is relevantly provided by Section 229D (1) (6) of the Code as follows:

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
ot exceeding 15 years.
...


(6) If one or 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.


  1. It has been said repeatedly by this Court that this and other offences against children were created by Parliament in response to an increase of sexual abuse and violence against children, particularly those of the female gender. And the penalties reflect the abhorrence with which society views this type of offence. Persistent sexual penetration of children is particularly abhorrent, hence, the maximum penalty of life imprisonment. Such offences are further aggravated where a relationship of trust, authority and dependency exist between the offender and the child.

SENTENCING TREND


  1. Sentences for persistent sexual abuse have been increasing with the highest on record being 28 years. Below are some cases for comparative purposes:
NO
CASE
CIRCUMSTANCES
SENTENCE

1
The State v Martin Willie; CR 541 OF 2010 (Unreported and unpublished judgment dated 12th December 2012) per Toliken AJ.
Plea – one count of persistent abuse of 15-year-old girl – First time offender – No force or violence used – Element of consent – victim not too far below age of consent – Victim did not fall pregnant or contract STI – Sexual penetration – Offence prevalent.
10 years less period in pre-sentence custody

2
The State v Danny Tutuve (2011) N4400 per Ipang AJ.
Trial – One count of persistent sexual abuse – Two separate occasions of penile penetration of 9-year-old child by 55 years old prisoner – Huge age difference.
18 years less pre-trial custody period.

3
The State v Ben Sakias (2011) N4238 per Sawong J.
Plea – Prisoner sexually penetrated niece on two different occasions – Prisoner 28 years old – Victim 14 years old – Mitigating factors – Plea saved victim from giving evidence in court – Expression of remorse – Unsophisticated villager – First time offender – No violence – Aggravating factor – Breach of trust – Victim became pregnant – Prevalence of offence.
12 years less pre-sentence custody period.

4
The State v Steven Makai (2010) N3914 per Cannings J.
Persistent penetration of 9-year-old girl by 30-year-old man over 19 month period – Brother-in-law/sister-in-law relationship – Offender acted alone, no use of weapons or aggravated violence – Caused no further trouble – Huge age difference – Tender age of victim – No consent – Extreme breach of trust – No reconciliation or forgiveness – No remorse.
20 years less time in pre-trial custody.

5
The State v Joe Mui; CR 1495 of 2010 per Cannings J.
Convicted of one count of persistent sexual abuse (penetration) of child – No particulars available to the court.
12 years less pre-sentence custody period.

6
The State v Steven Siname (2009) N3908; per Lenalia J.
Plea – 3 counts of persistent sexual abuse (penetration) – Biological brother/sister relationship – Victim 15 years old – Mitigating factor – Plea of guilty, first-time offender – No injuries – Aggravating factors – Victim became pregnant – Not one-off incident.
For count 1 & 2 = 28 years cumulative. Count 3 = 10 years concurrent. Total 28 years less time in pre-trial custody.

7
The State v Kuyaps Toki Jonathan (2008) N3315; Kandakasi J.
Plea persistent sexual penetration of 13-year-old girl – Breach of trust – Use of threats and force – Victim became pregnant – No compensation – First time offender – Prevalent offence – Prisoner 22 years old.
18 years less period in pre-sentence custody period.

8
The State v Ereman Kepas (2007) N3192 per Cannings J.
Plea – Five instances of sexual touching and one instance of sexual penetration – Prisoner 60 years old – Victim 10 years old – Father/stepdaughter relationship – Abuse over 4 months – Mitigating factors include guilty plea, nil priors, advanced age and medical condition – Aggravating factors include big age difference, no consent, tender age of child, breach of trust, physical violence and injury, no apology, no compensation, no genuine remorse.
12 years less pre-trial custody period.

9
The State v Makis (2012) N4888 per Kawi J.
Plea – Two counts of persistent sexual abuse of daughter by biological father – Circumstance of aggravation alleged, i.e., use of weapon to threaten victim into submission – Breach of relationship of trust, authority and dependency.
Count 1 – 14 years
Count 2 – 13 years
Total = 27 years to
be served concurrently

10
The State v Billy Paulo (2013) N5286 per Toliken AJ
Plea – 1 count of sexual abuse – Father/daughter – Abuse over 4 years starting with manual touching and culminating in sex penetration.
20 years.

11
The State v Tigi (No.2) (2013) N5310 per Kirriwom J.
Trial – Elder man won over confidence of parents of 2 girls – Offender and girls all lived in 1 bedroom flat – Sexual abuse elder girl – followed by the younger sister – Abuse started with showering them with money, then pornography - Leading to sexual penetration -Both girls gave birth.
13 years

PRESENT CASE


Mitigating Factors


  1. I do accept that the prisoner is a first-time offender. However, I do not think that his apology and expression of remorse are genuine. Even his offer to pay compensation cannot be taken seriously.

Aggravating Factors


  1. There are aggravating factors. I agree with Mr. Waine that these are indeed significant. These are the use of threats and actual violence against the victim to subdue her into submission, the use of weapons to inflict injury to the victim, the victim suffered injuries to her genitals, there was a huge age difference of 14 years between the victim and the prisoner, the victim became pregnant and there was a serious breach of trust. The victim had to relieve her trauma and experience and the prisoner forced a trial. Furthermore, there was no genuine remorse. It is to be noted that the prisoner referred to his daughter simply as “the victim” while he referred to his other child in school at Bariji as his son. Lastly but not least the prisoner denied the victim the right to education when he prematurely withdrew her from school and when he impregnated her. The prisoner has a prior conviction for stealing, but that is not relevant to the offence under consideration and therefore should not be considered as a aggravating factor. What then should be an appropriate sentence?

Appropriate Sentence - Considerations


  1. The law is settled that the maximum is usually reserved for the worst instances of offending. Cases are also treated on their own facts and circumstances so that sentences fit the crime. Unless a case is considered a worst instance of offending, first-time offenders are usually spared the maximum penalty. Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92).
  2. Does this case fall within the worst category of instance of persistent sexual abuse then? I think that it is not, but it is high up there close to the worst when compared to other cases that had attracted higher sentences such as Billy Paulo, Steven Siname, Steven Makai, Kuyaps Toki Jonathan and Danny Tutuve. (Supra.) This is because the prisoner not only sexually penetrated his own daughter for over a year, but he also used threats of violence and inflicted bodily injuries on her using weapons such as a spear. If that were not enough, he also impregnated her, essentially ending any prospects of a good education and a happy, fulfilling, and rewarding life.

20. The prisoner flagrantly breached the trust reposed on him as father to his daughter. The girl was virtually a prisoner, though not in chains, but nonetheless held captive under the dominating influence of the prisoner. She became an object for him to satisfy his lust or self-gratification. And while the evidence did not show it, I believe too that the victim lost her virginity in the process.


2013_37601.png
21. I adopt what I said in Billy Paulo that persistent sexual penetration of a child by a parent is the most abhorrent of abuses, particularly so, when like Billy Paulo, the prisoner here did not think about the effects of his behaviour on the victim. That the victim here was still very much traumatized by the ordeal brought upon her by her own father was evident from her countenance in Court. She was mostly withdrawn with a dull look about her which could be attributed only to the ordeal she went through. There is no question therefore that a very stiff sentence is warranted in this case. But what should such a sentence achieve?


22. As I also said in Billy Paulo, in cases like this, the welfare of a child victim is paramount. Hence any sentence must principally serve two purposes: (1) to punish the offender and (1) to separate him from the child. This is important if the child is expected to live a normal life after the ordeal she had gone through.


24. In this case, the victim would be over 20 years old now. However, that shouldn’t be an excuse not to impose a stiff penalty because in our village settings, close relatives or children for that matter, even if married, are never too far away from their parents. Hence, the victim here would in all probabilities still come in contact with the prisoner on a daily basis, and while she may be able to avoid or resist him, there is no guarantee that he will not assault her in some way.


SENTENCE/ORDER


25. Hence, considering the circumstances of this case, I set a starting point at 20 years. Because there is nothing in the prisoner’s favour that can mitigate the sentence when considered against the aggravating circumstances under which he committed this offence against his innocent and defenceless daughter, I fix a head sentence of 23 years, principally to punish him and to keep him away from his daughter.


26. The prisoner has spent time in custody – 6 years and 10 months calculated from his first appearance in the District Court, there being no information as to where he was first apprehended and detained. Thus, time in custody is deducted from the head sentence. The resultant sentence shall therefore be for a period of 16 years and 2 months.


27. None of this will be suspended.


28. The prisoner shall serve 16 years and 2 months at Biru Corrective Institution.


Sentenced accordingly.


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

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