N5113

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 981 OF 2010

THE STATE

V

JOSEPH TAULE

Kokopo: Maliku, AJ
2012: 9th, 10th October
2013: 25th March

CRIMINAL LAW - Sexual Penetration – Rape- Section 347 (1) Criminal Code (Sexual Offences and Crime against Children) Act

CRIMINAL LAW- Not guilty plea – Finding of guilty after trial- Prisoner is first offender – There existed a relationship of trust between the prisoner and victim. The prisoner is the father of the victim which aggravates the crime – Very close relationship calls for harsher punitive and deterrent custodial sentence

Cases Cited 

Maina –v- The State [1972] PNGLR 49
Goli Golu-v- The State [1979] PNGLR 
Avia Aihi-v-The State (NO3) [1982] PNGLR 92 
Rex Lialu - v - The State [1990] PNGLR 487 
The State –v- Jeffery Wangi (2006) N 3016
The State-v- James Yali (2006) N2989
The State –v- Douglas Jogioba (2007) N4085
The State –v- Fidelis Minja (2010) N 4156
The State –v- Joseph Ureap, CR 292 of 2010
State-v-Penias Mokei (No 2) N2635

Counsel 

Mr L. Rangan, for the State
Mr T. Potoura, for the Accused

SENTENCE

25th March, 2013

1.	MALIKU, AJ: Joseph Taule was convicted that he on the 26th of March 
2005 at Gaulim, Gazelle District in East New Britain Province did sexually penetrated one Lillian Joseph by inserting his penis into her vagina without her consent thereby contravening Section 347(1) of the Criminal Code Act, and there existed at time the prisoner committed the offence a relationship of trust, authority and dependency.

Allocutus

2.	When administering the allocutus, the prisoner said:

1.	I say thank you to this Court for the decision it had arrived at.
2.	I was first arrested in 2007 and was remanded in custody at Kerevat Police cell.
3.	I was released and was referred to the Community Leaders to deal with what I was accused of according to the custom.
4.	I was told to pay K3, 000. 00. I paid half of that amount.
5.	I was re arrested and charged with the same offence in 2011.
6.	I am married and have 9 children. Seven (7) are in school and two are still to go to school.
7.	I own a coacoa block at Gaulim which my family relies on, however due to the recent cocoa pod borer we are not able to harvest as we used to. 
8.	If I am sentenced to jail my family will have difficulty looking after them.
9.	I would like to apologise to the victim and to this Court and ask for leniency from the Court.
10.	I ask to be allowed to pay some compensation to the victim...

Personal Background/Antecedents:

•	The prisoner is Joseph Taule.
•	The prisoner was born on the 17th September 1969.
•	The prisoner is 44 years of age. At the time he committed the offence he was about 36 years of age.
•	The prisoner comes from Malaguna No.3 village, Rabaul District, East New Britain Province.
•	The prisoner attended Saint Joseph Primary School 
•	The prisoner attended Saint Mary (Vuvu) Secondary High School and completed Grade 9.
•	The prisoner never had any employment.
•	The prisoner is married to a lady named Lucia and has 9 children of which 7 are in school and 2 are still to go to school.
•	The prisoner comes from a family of two siblings. He is the 2nd child. 
•	The prisoner's mother is a deceased but his father is still alive.
•	The prisoner was arrested in 2011 and has been in custody for 1 year and eight months.
•	The prisoner is a member of Seventh Day Adventist (SDA) Church.

Mitigating factors:

1.	The prisoner had shown remorse in Court.
2.	The prisoner has paid some compensation to the victim.
3.	The prisoner is a father of 7 children. If the prisoner is sentenced the family will face problems.
4.	The prisoner is a first offender of an offence under Section 347 (1) of the Criminal Code even though he was convicted of armed robbery in 1990.
5.	There was no pattern of abuses by the prisoner.
6.	The prisoner acted alone.
7.	There were no physical injuries sustained by the victim.
8.	No weapons used to accomplish sexual penetration.
9.	The prisoner co operated with the Police when arrested for the offence.
10.	The prisoner is now 47 years old, not a youth.

Aggravating factors:

3.	As regard to what aggravates the present matter Mr Potoura concedes that 
at the time the prisoner committed rape on the victim Lillian Joseph there existed a relationship of trust between the prisoner and the victim. The relationship was of a father and daughter.

4.	The victim was pregnant and delivered a baby girl in November of 
2005 from being sexually penetrated by the prisoner.

5.	The prisoner was 36 years old at the time he committed the offence while 
the victim was about 17 years old.

Submission by Defence Counsel – Mr Potoura

6.	The prisoner pleaded not guilty but was found guilty and convicted of sexual penetration of one Lillian Joseph his biological daughter without her consent.

7.	 Mr Potoura concedes to the fact that rape is very serious crime. Rape becomes serious a crime when it is committed upon a very close relative.

8.	Mr Potoura concedes that at the time the prisoner committed the offence there existed a relationship of trust between the prisoner and his victim. The relationship was one of a father and daughter. 

9.	Mr Potoura submits that it is trite law in our criminal law jurisdiction that in any given case it will depend on its own peculiar facts; thus the Court is to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty - see Rex Lialu - v - The State [1990] PNGLR 487 and Maina –v- The State [1972] PNGLR 49.

10.	Mr Potoura also relied on Section 19 of the Criminal Code which he correctly submits gives wide powers to the Court to exercise its' discretion in imposing sentences other than custodial sentences.

11.	In view of that line Mr Potoura referred to a number of cases which he submitted sentences that were imposed in those cases varied based on each cases' peculiar facts. 

The State-v- James Yali (2006) N2989

12.	In this case the prisoner was convicted of the rape of his de facto wife's sister. He was aged 41 and a member of the National Parliament at the time he committed the offence. The victim was 17 years old. The prisoner acted alone. No weapons were used. There was no aggravated physical violence. No physical injuries were sustained by the victim. 

13.	The prisoner did not surrender but cooperated with the police to a certain extend. He has caused no trouble since the incident. There was an exchange of a substantial amount of money following the incident but this fell short of being regarded as compensation. 

14.	There was a high degree of sexual indignity. He has not expressed remorse. He had one previous conviction, for assault. He is not a youthful offender/prisoner. The offence was committed when he was a member of the National Parliament and Governor of the province. His honour Canings J held:

1.	This was a serious case of rape under Section 347 (1) of the Criminal Code.

2.	As no circumstances of aggravation were charged in the indictment the maximum penalty to which the offender could be sentenced was 15 years imprisonment.

3.	The Court should use 10 years imprisonment as a starting point when sentencing an offender of rape under Section 347 (1), then consider all mitigating and aggravating circumstances.

4.	In the present case there were more strongly aggravating circumstances than strongly mitigating circumstances and it was proper to sentence the offender above the starting point.

5.	The offender was sentenced to 12 years imprisonment.

The State –v- Jeffery Wangi (2006) N 3016

15.	In this case the prisoner was convicted of the rape of his 8 year old niece. 
He was 36 years old. He acted alone. No weapons were used. There was a violation of trust. The offender did not surrender but cooperated with the police. No circumstances of aggravation were pleaded in the indictment. He pleaded guilty. His honour Canings J held:

1.	This is an extremely serious case of rape under Section 347 (1) of the Criminal Code.

2.	As no circumstances of aggravation are charged in the indictment the maximum penalty to which the offender could be sentenced is 15 years imprisonment.

3.	 The Court should use 10 years imprisonment as a starting point when sentencing under Section 347(1), and then consider all mitigating and aggravating circumstances. His honour applied the case of The State-v- James Yali (2006) N2989.

4.	In the present case there are more strongly aggravating circumstances than strongly mitigating circumstances and it is proper to sentence the offender to well above the starting point.

5.	This is a special case in which the offender should have been charged under Section 347 (2) or Section 229 A (2) of the Criminal Code. The Public Prosecutor's failure to properly charge means that the maximum penalty to which the offender is subject is considerably less than is should have been. Therefore the extent of the benefit given on account of an early guilty plea is considerably reduced.

6.	The offender is sentenced to 14 years imprisonment.

The State –v- Fidelis Minja (2010) N 4156

16.	In this case the prisoner was convicted of the rape of his 16 year old 
sister in law. One circumstances of aggravation was charged in the indictment: that he confined or restrained the victim. There was no reconciliation or forgiveness. His honour Canings J held:

1.	The maximum penalty is life.
2.	The starting point is 15 years imprisonment.
3.	The guilty plea is the main mitigating factor.
4.	There were major aggravating factors, including the abuse of the relationship of trust the in laws.
5.	A sentence of 12 years was imposed. The pre sentence period in custody was deducted and non e of the sentence was suspended.

The State –v- Douglas Jogioba (2007) N4085

17.	A school teacher was found guilty after trial of two counts of rape of a 16 
year old student, committed on school premises. Sexual penetration consisted of, on count 1, insertion of the offender's finger into the victim's vagina and, on count 2, insertion of his fingers and penis into the vagina. The victim was young and naive and the offender abused his position of trust and authority to induce consent, which was found not to have been free and voluntary. Circumstances of aggravation were charged in each indictment. His honour Canings J held:

1.	The starting point for rape under Section 347 (2) of the Criminal Code is 15 years imprisonment.

2.	Mitigating factors: offender acted alone, no offensive weapons used, no torture, no confinement, digital preparation, victim not disabled, no STD, not other indignity, dignity, offender cooperated with police, no further trouble, first time offender, effect on offender's family, assault, job loss, and District Court proceedings.

3.	Aggravating factors are: large age gap, youthful victim, abuse of position of trust and authority, no provocation, no dignity, did not give himself up, no reconciliation, took the matter to trial, not youthful offender.

4.	When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentence are to be served cumulatively or concurrently, then apply the totality principle.

5.	The following notional sentences were passed: count 1: 6 years; count 2: 10 years, resulting in a total potential sentence of 16 years.

6.	The offences were separated in time by several days, so they ought not to be treated as part of a single transaction, which means the sentences should be served cumulatively, i.e. a total of 16 years.

7.	The totality principle, however, requires a reduction n the total sentence, apportioned as count 1: 4 years and count 2: 6 years.

8.	Accordingly the court imposed a total head sentence of 10 years. The pre sentence period in custody was deducted, and none of the sentence was suspended.

18.	In the present case the prisoner was convicted for committing rape upon his daughter under Section 347 (1) of the Criminal Code (Sexual Offences and Crimes against Children) Act and there existed a relationship of authority, trust and dependency between the prisoner and his daughter. The prisoner abused or breached that relationship. It was a very close relationship which was father and daughter relationship. 

19.	The court found the sexual acts by the prisoner on to his daughter began in 2003 when he began sexually touching the victim. In 2005 he succeeded in sexually penetrating his daughter and impregnated her. 

20.	Although I agree with the submission of Mr Potoura that the cases cited by him whom I have briefly alluded to above varied in the sentences imposed and depended on the peculiar facts put before the Court at the time they were argued before the Court. The present case however, is an extremely serious case of rape under Section 347 (1) of the Criminal Code given that the prisoner raped his own daughter, and that the relationship was one of very close. 

21.	Although no circumstances of aggravation are charged in the indictment the maximum penalty to which the offender could be sentenced is 15 years imprisonment.

22.	In the present case after I have analysed the materials; i.e. the aggravating and mitigating factors before me, I consider 10 years imprisonment should be the starting point when sentencing under Section 347(1), and then consider all mitigating and aggravating circumstances.

23.	In the present case there are more strongly aggravating circumstances than strongly mitigating circumstances and it is proper to sentence the offender to well above the starting point.

24.	This is a case I think the prisoner should have been charged under Section 347 (2) or Section 229 A (2) of the Criminal Code. 

Response by State

25.	Mr Rangan for the State and in response to defence submission submits that undoubtedly the Court should consider and impose a punitive custodial sentence in the present case as deterrence because of the prevalence of rape crimes by father on daughter in East New Britain Province.

26.	Mr Rangan referred to the case of The State –v- Joseph Ureap CR 292 of 2010, Sawong J. The prisoner in this case pleaded guilty to one count of sexual penetration of a girl under the age of 16 years old in breach of an existing relationship of trust, authority and dependency pursuant to Section 229A (1) and (3) the Criminal Code (Sexual Offences and Crimes against Children) Act. 

27.	The victim was the natural daughter of the prisoner. The victim was asleep in the room when the prisoner entered her room and there had forceful intercourse with her. The victim was 14 years while the prisoner was about 44 years old. The prisoner in that case was sentenced to 20 years IHL. In sentencing the prisoner to 20 years IHL, the court held that the offence was serious breach of a trust between the father and his daughter, that it calls for an immediate deterrent and punitive custodial sentence. That this being a prevalent offence in East New Britain in particular. It calls for punitive deterrent sentence.

The Law

28.	Section 347 (1) of the Criminal Code (Sexual Offences and Crimes 
against Children) Act creates and also prescribes the maximum sentences. It reads:

(1)	A person who sexually penetrates a person without his consent is guilty of a crime of rape. 

Penalty: Subject to Subsection (2) imprisonment for 15 years.

(2)	 Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable to Section 19, to imprisonment for life.

29.	The present case is a serious case of rape under Section 347 (1) of the Criminal Code.

30.	 It is aggravated by the breach or abuse of the relationship of trust, authority and dependency by the prisoner given that the relationship between the prisoner and the victim was a father and daughter and was very close.

31.	Sexual penetration offence under Section 347 was enacted to protect any group of persons from being sexually penetrated without their consent. This group of persons need not be categorized in age as in Section 229 A of the Criminal Code (Sexual Offences and Crimes against Children) Act. 

32.	This group of persons may be children of under12 years of age to adults. Where the victim is under 12, 16 and 18 years of age, the State decides whether to indict an offender for an offence under Division 2A – Sexual Offences against Children - Sections 229A to Section 229L Criminal Code (Sexual Offences and Crimes against Children) Act. Where the State decides to indict an offender with rape whether the victim is under12,16 and 18 years old or an adult, the offender is indicted under Section 347 (1) (2) of the Criminal Code (Sexual Offences and Crimes against Children) Act.

33.	Subsection (1) of Section 347 provides for 15 years imprisonment. Where an offence under Subsection (1) is committed in circumstances of aggravation, the prisoner is liable, subject to Section 19, to imprisonment for life. 

34.	 In my view aggravating circumstances includes no consent by the victim, the age difference of the victim and the prisoner at the time the offence was committed, the breach of an existing relationship between the prisoner and the victim, and the closeness of the existing relationship such as that of a father and daughter.

35.	In the present case the victim was not raped by a stranger but by her own father who then undoubtedly breached the existing relationship of trust, authority and dependency between him and the victim. 

36.	I agree with his honour Canning J in the case of State-v-Penias Mokei (No 2) N2635 where he says: "If relationship between the accused and the victim is very close then the most serious breach of trust, authority and dependency it becomes and the higher the penalty should be."

37.	The guideline on sentencing is well settled in our criminal jurisdiction in the case of Goli Golu-v- The State [1979] PNGLR at page 653, and re stated in the case of Avia Aihi-v-The State (NO3) [1982] PNGLR 92 at 96 and again in the case of Rex Lialu - v - The State [1990] PNGLR in which the Court said: 

"Sentence in any given case will depend on its own peculiar facts.... the Court ought to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty". 

38.	 It is obvious that the courts have taken this into account when considering appropriate sentences imposed on the prisoner. 

39.	 I have agreed on previous matters that have come before me that maximum prescribed penalties are reserved for the worst category of cases and for our purpose here is reserved for the worst type of rape cases. 

Address to the accused on sentence

40.	You pleaded not guilty to the charge of sexual penetration of Lillian Joseph without her consent however, upon hearing evidence I found you guilty and convicted you of committing rape on Lillian Joseph on the 26th of March 2005 contrary to Section 347 (1) of the Criminal Code (Sexual Offences and Crimes against Children) Act. 

41.	I heard what you told me in your allocutus and also heard what your lawyer told me about you. Your mitigating and personal particulars do not convince me about the crime you committed upon the victim who is your own daughter. I have decided not to put much weight on what you told me because of the followings:

1.	 You raped your own daughter, Lillian Joseph.
2.	You lied to the Court about you did to the victim and you wasted the Court's time even though you were entitled to a fair trial.
3.	 The evidence shows what took place on the 26th of March 2005 did not begin there. This was a flow on from what the victim said you started doing in 2003. You stopped temporarily in 2004 because you were caught.
4.	In 2005 you continued your sexual acts on the victim, and this I find that you raped her. She was pregnant. This shows some persistency by you. You did not stop until you succeeded on 26th March, 2005.
5.	There was existed a relationship of trust, authority and dependency between you and your daughter
6.	Your sexual acts towards your daughter are likened to that of an animal.
7.	You abused that relationship of trust between you and your daughter.
8.	You ruined her education and her future was a disaster.
9.	The offence you were convicted of is prevalence in the East New Britain Province and therefore calls for tougher punitive custodial sentence.
10.	The victim was pregnant and delivered to a baby girl in November 2005.
11.	You have one prior conviction which should have been a reminder to you even though it was not of the same offence.

42.	The law is; if relationship between the accused and the victim is very close then the most serious breach of trust, authority and dependency it becomes and the higher the penalty should be – see The State –v- Penias Mokei (No 2) N 2635.

43.	Because of the close relationship between you and the victim, being your daughter and because you abused or breached that relationship of trust it was a serious breach of trust and calls for deterrence and punitive sentence.

44.	Taking into account all that are in your favour and against you, that is the mitigating factors as well as aggravating factors and what you told me in your allocutus and having told you that I do not place much weight on those factors, I consider a custodial sentence is appropriate in your case.

45.	For the reasons I have told you, you are sentenced to 14 years in hard labour less the period you spent in custody awaiting your trial and sentence.

46.	I do not suspend any part of the sentence you are to serve after the pre- trial and pre-sentence period you spent in custody has been deducted.

________________________________________________________

Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Accused