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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CR.NO.170 – 174 OF 2013
THE STATE
V
PHILIP KELEREA
(N0.2)
Kokopo: Lenalia, J.
2014: 14th March, 9th, 14th, 23rd & 25th April
CRIMINAL LAW – Sexual offences – Sentence after findings of guilty of various sexual offences – Sexual offences involving five different male victims – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.229C(3), s.347 (2), s.349(1)(b)(4),s.349(1)(4) and s.349(1)(3)
CRIMINAL LAW – Sentence after having been found guilty – Sentencing principles – Circumstances of aggravations – Religious leader being a Diocesan Catholic Priest of the Catholic Church engaged in various indecent & sexual acts.
CRIMINAL LAW – Sexual abuse of school children attending a Roman Catholic Primary School – Rape by mouth, sexual touching and indecent acts of male students – Sexual abuse of five (5) male students below the age of 16 years – Appropriate penalty.
Cases cited:
Maima v Sma [1972] PNGLR 49
The State v Peter Kaudik [1987] PNGLR 201
The State v Stuart Hamilton Merriam [1993] PNGLR 104
The State-v-Kenneth Penias [1994] PNGLR 48
The State-v-Pennias Mokei (No 2) (2004) N2635
The State-v-Ndakum Pu-Uh (2005) N2949
The State-v-Garry Sasoropa & 2 Others (No.2) (29.4.2004) N2569
The State-v-James Yali (2006) N2989
The State-v-Joe Sime (25.8.2006) Cr. No. 1078 of 2006
The State v Philip Komo (2009) N3816
Stanley Sabiu v The State (2007) SC866
The State v Jerome Deila (2009) N3840
The State v Thomas Tukaliu (22.2.06) N3026
The State v Paul Nelson (25.5.05) N2844
The State v William Patangala (22.2.06) N3027
The State v Kagewa Tenant (2005) N2941
Overseas case cited
Kennedy Michael Graham (2000) NSWCCA
Counsels:
Mr. L. Rangan, for the State
Mr. P. Kaluwin, for the Accused
April 25th, 2014
SENTENCE
1. LENALIA, J: The prisoner was found guilty on 14th of March on five sexual cases. There were one count of indecent acts, one count of rape and three for sexual touching laid under Sections 229C(3), 347 (2) and s.349 of the Criminal Code. All offences were committed between June and July 2012 at Guma Primary School, East Pomio, East New Britain Province.
2. All victims were young boys attending that school and such offences took place in various dates between June and July in 2012. Aggravating circumstances are pleaded on the indictment being that when the accused committed these crimes, he abused his position of trust, authority or dependency when the accused at the time was a Diocesan Catholic Priest.
Addresses on Sentence
3. On his final say, the prisoner said, he is sorry for what he did and he asked for leniency on sentence.
4. On behalf of the prisoner, Mr. Kaluwin asked the court to consider mitigations such as the prisoner is the first time offender, and the prisoner was performing clergy responsibilities. That no sexual deceases were contacted and the nature of each crime committed by the prisoner. He submitted that since the offences were committed one after the other in a short space of time, concurrent sentences should be considered.
5. Mr. Rangan on the other hand submitted that, the evidence of these cases reveal very high level of breach of trust because at the time the offences were committed, the prisoner was clergy-man in that he was a Diocesan Catholic Priest and currently he holds the title of being a Catholic Priest. He is referred to as Father Philip Kelerea. Counsel submitted that each of the five offences has its own maximum penalty.
6. Part of the prosecution submission on sentence is that, the prisoner's prior good character should attract less weight than the normal sentencing processes because, the offender was performing priestly responsibilities. Counsel asked the court to consider and treat the cases before this court differently from other cases of sexual abuse because, the prisoner was a missionary and instead of shepherding the seep, pastoral care was lacking thereby the prisoner's action caused the sheep to be scattered. Counsel referred to an Australian case of Kennedy Michael Graham (2000) NSWCCA dated 13th December of that year where the court in that case said, circumstances of good character carries less weight and general deterrence and the need to protect children from child molestation must be given prominence. That case also involved a church worker.
7. To understand the nature of the crimes committed by the prisoner and for purposes of the discussion following the brief history of the evidence of each count, which the court handed down on 14th March (see judgment dated 14.3.2014), I set out the provisions under which the prisoner was charged and a brief discussion on the evidence of what happened on each count. Mr. Rangan argued that, concurrent penalties would not be suitable because the principle ought not to be applied here as the crimes were committed one after the other.
8. First Count. On the first count, because the prisoner committed the offence of indecent acts toward the victim Camillus Kesgetaon when he was under the age of 16 years and the prisoner abused his position of trust, authority or dependency, is liable to imprisonment for 7 years. Section 229C (1) (2) & (3) states:
"(1) A person who commits an indecent act directed at a child under the age of 16 years is guilty of a crime.
Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding five years.
(2) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding seven years.
(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and child, an offender against Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding seven years."
9. Second Count. The next provision offended against is s.347 (2) of the Code. The uncontested evidence by the victim Jonah Kamein established that, on an unknown date in the month of July 2012 at Guma Catholic Mission station, the prisoner without the consent of the victim sexually penetrated his mouth by inserting his erected penis in and out of the mouth of Jonah until he reached orgasm This section states:
"(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, subject to Section 19, to imprisonment for life."
10. Third Count. The third count was a charge of sexual assault under s.349 (1) (b) & (4) of the Code. This section states:
"(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 breasts 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."
11. The evidence of victim of count three gave evidence of the prisoner inviting him to the priest's house at Guma Catholic Mission station during morning recess where he forced Gibson Tavut to masturbate him (the prisoner) until his penis got erected.
12. Fourth Count. The victim Sylvester Pamlei's evidence revealed another appalling situation where the prisoner invited Sylvester to the priests' house. He opened the Bible and shared the word of God with him. After that, the offender told him to hold on to his (offender) and the offender held on to Sylvester's penis and they manipulated each other. This continued until the prisoner ejaculated. The charge was laid pursuant to s.349 (1) (4) of the Criminal Code.
13. I have already quoted this section in Count 3. Ordinary sexual touching attracts imprisonment term of five years. If the offence is committed with circumstances of aggravations as was in this case, the prisoner is liable to 10 years imprisonment.
14. Fifth Count. The victim recalled on his oral testimony that on 16th July 2012, the prisoner allured him to the priest's house and once inside the house, the offender started to manipulate Titus Samean's penis until it got erected and then the victim told the offender that he was tied. He then released him. As in the fourth count, the prisoner is charged under s. 349 (1) (4) of the Code.
Application of Law
15. The prisoner was found guilty on five sexual offences, one of indecent acts, one for rape through the mouth, and three of sexual touching laid under Sections 229C (1) (2) & (3), s.347 (2), and s.349 (1) (4) of the Criminal Code I have referred to above provisions in the brief of those charges in preceding paragraphs. All victims were primary school male students attending the Guma Primary School in East Pomio, East New Britain Province. These offences were committed in various dates between the months of June and July 2012. The law says that, it is an offence to have sex or sexually assault girls or boys who are under statutory ages defined by the Criminal Code.
16. The prisoner's case is aggravated by a number of factors. I will address those various factors separately as they are serious issues on the Amended provisions of the Criminal Code. The crimes committed by the prisoner are very serious because there was "an existing relationship of trust, authority or dependency between the prisoner and the five victims. Such relationship exists not because, he was their parent, adoptive parent or even step-parent, but because he was a religious worker or "instructor" or a mentor in terms of the prisoner's responsibilities as a Diocesan Priest (See s.6A (2) (e) CC.).
17. The prisoner's cases involved a very high level of breach of trust, just like parents or step-parents or any other persons defined by s.6A (1) & (2) of the Code because he was a religious mentor providing religious instruction and services to the people around the Guma Catholic Mission area. The action by the prisoner was and is highly disgraceful and will highly affect the Church's credibility.
18. It may be that, some church organizations or denominations including the Holy See are or may be signatories to the United Nation Convention on the Rights of the Child, a legally binding instrument which commits itself to protecting and nurturing the most vulnerable persons in the societies. This is because, through that Convention, it is believed that, in order for a child to be prosperous in the future, a child should be prepared to live an individual life in the society and brought up in the spirit of ideals proclaimed in Convention on the Rights of the Child.
19. The phrase "relationship of trust, authority or dependency" is defined in s.6A (1) and (2) of the Criminal Code in the following terms:
"(1) When the term relationship of trust, authority or dependency" is used in the definition of an 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."
20. Similarly, sexual penetration is also defined by s.6 of the Code. This section states:
"6. Sexual Penetration
When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is –
(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or
(b) the introduction, to any extent, by a person of any object or part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes." (Emphasis added).
21. On the charge of rape, because the prisoner committed the offence of rape by insertion of his penis into Jonah Kamein's mouth and since the offender was in the position of trust, authority or dependency, he could be sentenced to life imprisonment pursuant to s.347(2) of the Criminal Code. Obviously, mouths of human beings are supposed to be used for eating, drinking and talking. The victim Jonah Kamein was 15 years when the prisoner did what he did to him.
22. Judges of the National Court have expressed numerous concern statements on this offence and other offences under the amended provisions of the new Divisions IV.2A and 2B of the Code. Unless for those offences carrying mandatory minimum or maximum penalties, the National Court has unfettered discretion to impose a term of years to an appropriate sentence in each case.
23. Of course, the Court usually have regard to basic principles of sentencing that, each case must be sentenced on its own facts or on the merits of findings in evidence and that the maximum is reserved for the worst type case or cases Maima v Sma [1972] PNGLR 49.
24. On the sentencing discretion of the National Court, the Supreme Court in Stanley Sabiu v The State (2007) SC866 while reviewing suggested guidelines for sexual penetration cases in the National Court cases of The State-v-Pennias Mokei (No 2) (2004) N2635 and The State-v-Ndakum Pu-Uh (2005) N2949 that Court said:
"We are of the view that the above are useful guidelines to be considered in sentencing for child sexual penetration cases. We emphasis however 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."
25. Rape has always been serious and has been said to be the invasion of the right to privacy guaranteed by s.49 of the Constitution: The State-v-Kenneth Penias [1994] PNGLR 48 at 51. In the instant case no aggravating circumstances were involved. Despite that, the maximum penalty is 15 years imprisonment and where aggravations are pleaded on the indictment, the maximum sentence is life imprisonment.
26. The offences the prisoner committed is not only against the five (5) victims but also affects parents and relatives of the victims and of course, the Catholic Church and other denominations on the part churches play in mentoring, nurturing and providing their customers with spiritual and divine guidance for their members and particularly the five young men that were exposed to sexual life.
27. This is the reason why the law provides that where an offender offends against the section charged against the will and whish of a female or male person as was in the instant case, the parliament thought it fit for the courts to impose appropriate maximum penalty of 15 years imprisonment and if an offence is committed with circumstances of aggravations to life imprisonment: The State-v-Garry Sasoropa & 2 Others (No.2) (29.4.2004) N2569.
28. For purposes of determining an appropriate penalty for the crime of rape, I should refer to one or two similar cases involving women or young girls. I start with the case of The State-v-James Yali (2006) N2989 because it was a trail as was in the instant case. In that case, the prisoner was charged for raping his sister in-law. The matter went by trial. He was found guilty. Cannings J. sentenced him to 12 years imprisonment. In The State-v-Joe Sime (25.8.2006) Cr. No. 1078 of 2006, the prisoner was convicted on his plea to a charge of rape. The same Judge sentenced him to 10 years imprisonment.
29. In The State v Philip Komo (2009) N3816, the prisoner was charged with aggravated rape of his step-daughter in breach of trust relationship, similar to the instant case. It was a trial and the offender was found guilty. He was sentenced to 18 years by Ellis J in Kavieng. In The State v Jerome Deila (2009) N3840 a similar case as the one before me, aggravated by existing relationship of trust, authority or dependency. Davani J sentenced the offender to 15 years.
30. In The State -v- Kaudik [1987] PNGLR 201, Amet J, (as he then was) referred to the following excerpt from the Criminal Law Revision Committee's 15th Report on Sexual Offences (1984) paragraph 2.2 where the Committee said:
"Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in fact obliterates the personality of the victim. Its psychological consequences equally are severe. The actual physical harm occasioned by the act of intercourse associated violence or force in some cases degradation, after the event, quite apart from the woman's continuing insecurity, the fear of venereal diseases and pregnancy. Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim and it involves an act we as a society attach considerable value."
31. There is no doubt in my mind, that Judges of both the National and Supreme Courts on appeals have repeatedly express various sentiments against the heinous crime of rape as being so serious. This is because it is a crime committed against a person's will. Although sexual crimes are commonly committed against women and young girls, with the instant case, this will in history be the second case involving male victims.
32. The first case of carnal knowledge against nature was that of The State v Stuart Hamilton Merriam [1993] PNLLR 104 where a pioneer missionary was found guilty of two counts of sodomy charges which occurred between 1980 and 1983. Judges of this Court have expressed their views in their own ways on the occasion of sentencing convicted offenders on rape and various sexual crimes committed against mostly female victims. I have taken this liberty express my own concern about what the prisoner did to the five male victims.
33. On the remaining charges of indecent acts, because the prisoner committed the offences with breach of trust, he could be sentenced to the maximum of 7 years for the offence of indecent acts, and for the offences of sexual assaults, 10 years is the maximum. Where there is no existing relationship of trust, authority or dependency, in case the offence of indecent acts and sexual assault the prescribed maximum is 5 years each.
34. The sentencing trend by the National Court Judges on sexual offences on the recent past has fluctuated from terms of imprisonment to wholly suspended sentences. I cite a few cases to illustrate that point. Your case may be similar to the case of The State v Thomas Tukaliu (22.2.06) N3026. In that case, the prisoner pleaded guilty to two counts of sexual touching of a 10 years old victim (she was a female) with aggravations of an existing relationship of trust, authority or dependency. He had on previous occasions sexually touched the victim many times. He was sentenced to 5 years imprisonment. Three years were suspended with conditions. He only served 2 years.
35. In The State v Paul Nelson (25.5.05) N2844, the 65 years old prisoner was sentenced to 3 years for an offence of sexual touching. Two years were suspended with conditions. There was no existing relationship of trust and dependency and it was an isolated incident. In The State v William Patangala (22.2.06) N3027, the prisoner pleaded guilty to one count of sexual touching aggravated by an existing relationship of trust authority and dependency. It was an isolated incident. He was sentenced to 4 years imprisonment with 3 years suspended on conditions. The victim was a female.
36. In The State v Kagewa Tenant (2005) N2941, the prisoner was charged with one count of sexual touching of a 12 years old female victim. The prisoner in that case attempted penetration a number of times. He was sentenced to 6 years imprisonment with 2 years suspended on conditions. As can be seen from the decisions, in the foregoing case law authorities that sentences vary from case to case depending on the merits of facts or evidence of each case.
37. Women, young girls and now young boys of this country, and even male infants as young as 3 months are becoming victims and are most vulnerable and are at the mercy of those who call themselves their protectors, and as was on this case, religious mentors who suppose to set very high standard of religious guide-ding principles. It is my view that, the Courts must continue to impose sentences that will justify the pain, suffering and psychopathic traumas and damage caused to young victims like the five victims of these cases.
38. The unfortunately result is that, whatever term of years to be imposed on the offender, cannot be appropriately measured against the pain and suffering, all spiritual, psychopathic and physical traumas that the victims have endured and will they will continue to suffer and endure until the Good Lord calls them away. Sexual offences such as rape, incest, sexual penetration, sexual touching or indecent acts of our children in this Province are very prevalent indeed.
39. It was reported on the Post Courier on Monday 7th April this year by the PPC of this beautiful Province and other articles before that, that sexual cases in East New Britain are very high. On Thursday 10th, I noted comments again in the Post Courier by a Senior Statesman of this Province Sir Ronald Tovue where he said this Province is going through a period of "moral decay" and may I add, downward trend, due to sexual abuse and degradation of young children and women.
40. In the overseas case cited by Mr. Rangan, that is Kennedy Michael Graham (2000) NSWCCA the Court said less weight should be given to previous good character and there is need to protect children against sexual molestation. The decision of that case is persuasive value only and it does not bind this court.
41. The criminal list for this Province contains something like a little over 50 pending sexual cases. This figure does not include the cases that were completed beginning of this year, nor does it include sexual cases which have been adjourned sine die following issuance of bench warrants of arrests for offenders who have absconded bail or escaped from custody.
42. The issue now is what are our Churches doing to contain the spread of this heinous decease of sexual abuse committed against our children before watchful eyes of church pastors, ministers, catechists, priests, ministers and elders of all denominations. Church members cannot sit back and fold their hands expecting police to make investigations when sexual crimes are happening on our very doors. The community leaders, be they councilors, Village Court officers, and all our village elders ought to work together to contain sexual harassment of our children and our women.
43. I am personally concern about the level of sexual abuse cases in this Province. This is the very reason why, in 1993, Papua New Guinea ratified the Convention on the Rights of the Child. Such document was adopted by the United Nation General assembly on 20th November 1989. As a nation, PNG has a regional and international commitment to address this very important issue.
44. It is now common knowledge and generally accepted that women, young girls at early ages are the major victims of sexual abuse involving all sorts of violence. (See Hansard-National Parliament 11th October 2001 speech by Lady Kidu made in support of the Bill). With the situation in the instant case, the trend is changing from female victims to males and even animals.
45. Let the Court quote paragraphs 4, 5 and 6 of the preamble of the Convention on the Rights of the Child. In fact reading the whole article, it is concerned with the rights of children. Those paragraphs read:
"Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is essential to special care and assistance,
Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding."
46. I am of the opinion that, religion plays a major role in t integral human development of the whole human being from birth to cradle and thereafter to the grave. The young children who came to give evidence against the prisoner were smart in giving their evidence but the court could see that the effect of the offences committed against them would last forever.
47. The court found from the evidence of these cases that there are a number of aggravating features. The first of those aggravations is the statutory aggravating circumstance namely the age factor. In a case like the present case where all victims were less than 16 years at the time and year the offence was committed. The prisoner was 47 years. The gap age between the victims and the prisoner was really big.
48. One of the very highly serious aggravating factors on the current case is that, the prisoner was a religious clergy. Being a religious instructor, mentor and clergy, the prisoner was expected to take tender and nurturing care of young children.
49. Parents sent their children to Missions Schools, be it a primary school, secondary school, college or a university, they expect their children not only to be taught school curriculum, but to educate them in the teachings of the Bible so they can be future leaders with some of them trodding on into the field of clergy and ministry responsibilities.
50. I have had the privilege or reading through the Priesthood Character Report in the pre-sentence report. Arch Bishop Francisco Panpilo at the Vunapope, Archdiocese of Rabaul expressed serious concern about the behaviour of the prisoner. He said, the loss of the Priest (offender) is like a lost in the family of priestly brotherhood. In case of Father David Gough currently the Chaplin of Vudal University and lecturer at Rapolo Diocesan Seminary, he asked for leniency on sentence.
51. I have also read the comments by the parents and community leaders' views on the victim's impact statement. The parents of the victim Gibson Tavut were contacted for their comments. They condemned the prisoner's behavior to their child. Two community leaders were contacted. Mr. Joe Litau an ex community school teacher and the headmaster of Guma primary school were contacted who gave the concerns of the parents of the other four victims. They also expressed severe shock about what the prisoner did. Through these two leaders, the other parents indicated that due to the high costs of transport from Kalampun area and the Guma Primary school, to and from Kokopo, the victim must be paid some compensation to the victims. All offences took place at Guma Primary School, East Pomio. They spoke through Mr. Litau and the headmaster of the school Mr. Francis Langlang because they cannot master Pidgin in talking.
52. I have considered all addresses on sentence first by the prisoner and the two lawyers. I have also considered comments by community leaders and those contacted in the Priesthood Character Report. I consider that the sentencing principles on cumulative and concurrent sentence should not be applied because the offences the crimes committed occurred separately. This is due to the fact that the five offences were committed over a period of time as compared to a string of offences committed or arising out of a single transaction: Mase v The State [1991] PNGLR 88 at page 92-93 (See also Public Prosecutor v Terrence Kaveku [1977] PNGLR 110).
53. However, because the five crimes were committed with circumstances of aggravations, where the amended sections of the Criminal Code set high penalties one of which carries the maximum penalty of life imprisonment (rape), I might re-consider what I have alluded to above. (See pages 92 – 93 in Mase's case.)
54. On the instant case, because the prisoner breached the trust reposed on him as Father Philip Kelerea being a religious, instructor, teacher, mentor, and spiritual leader, I consider appropriate penalties should custodial sentences be imposed and partially suspended. The prisoner is sentence in the following terms:
Count 1. Sentenced to 3 years imprisonment.
Count 2. He is sentenced to 12 years imprisonment. Sentence be served cumulatively with sentence for Count 1. (Total 15 years).
Count 3. Sentenced to 3 years imprisonment. Shall be served concurrently with sentence in Count 2. (15 years).
Count 4. Sentenced to 3 years. Be served cumulatively on sentence in Count 2. (18 years).
Count 5. Sentenced to 4 years. Be served concurrently with the sentence in Count 4. (Total 22 years).
55. The Court suspends four (4) years from the above sentence on the following conditions:
______________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner
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