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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1042 OF 2016
THE STATE
V
DAMI LAGAR APELIS
Duke of York: Anis J
2018: 14th May and 21st June
CRIMINAL LAW – Sentence based on guilty plea – offence – persistent sexual abuse of a child – section 229D(1)(6) of the Criminal Code Act Chapter No. 262 – evidence of other similar incidents – pre-sentence report reports of behaviour of that of a paedophile – report recommends custodial sentence – age consideration discussed – suspended sentence and probation conditions considered and applied
Cases cited:
Stanley Sabiu v. The Sate (2007) SC866
State v. Kilala Makila (2016) N6507
State v. Eremas Kepas (2007) N3192
State v. Billy Paulo (2013) N5286
Counsel:
Ms S Luben, for the State
Ms J Ainui, for the Accused
SENTENCE
21st June, 2018
1. ANIS J: This matter was tried at Kirbil, in the Duke of York Islands of East New Britain. The prisoner was arraigned on 14 May 2018. He pleaded guilty to the offence persistent sexual abuse of a child under section 229D(1) & (6) of the Criminal Code Act Chapter No. 262 (CC Act).
2. This is my ruling on sentence.
BACKGROUND
3. There were two (2) incidents based upon which the prisoner has pleaded guilty. Both incidents occurred at Nakukur village in Duke of York. The prisoner and the victim, the latter whom I will refer to as DA, both live in Nakukur village. The prisoner is the biological grandfather of DA.
4. In relation to the first incident, the prisoner was 61 years old and DA was 12 years old. The admitted facts were as follows. On 25 December 2013, between 1pm and 2pm, DA’s aunt sent DA to get a dish from the family kitchen. DA went to get the dish. The prisoner followed shortly after and entered the kitchen to where DA was. DA tried to escape from the prisoner through a window. The prisoner ran outside and closed the window, and he ran back into the kitchen. The prisoner locked the kitchen door. The prisoner removed DA’s shorts and underwear. He pushed DA to the ground. The prisoner laid on top of DA and squeezed her breasts with his hands before he went ahead to suck her nipples. The prisoner then sexually penetrated DA by inserting his penis into her vagina.
5. The second incident occurred on 28 March 2016 between the hours of 7am and 8am. The prisoner was 64 years old and DA was 15 years old. The admitted facts were as follows: DA was asleep at that time. The prisoner entered DA’s bedroom. There he removed her shorts and underwear and he touched her vagina with his fingers. After that, the prisoner laid on top of her and sexually penetrated her by inserting his penis into her vagina.
INDICTMENT
6. Based on the two (2) sets of facts, the indictment read in part as follows:
DAMI LAGAR APELIS of Nakukur Village, DUKE OF YORK ISLAND, EAST NEW BRITAIN PROVINCE, stands charged that between the 24th day of December 2013, and the 29th day of March 2016 at Nakukur Village, Duke of York Island in Papua New Guinea, engaged in persistent sexual abuse of a particular child, namely DA, then between the age of 11 and 16 years old.
AND in the course of the persistent sexual abuse DAMI LAGAR APELIS, on the 25th day of December 2013, touched with his mouth and hands, the breasts of DA then aged 12 years old,
AND DAMI LAGAR APELIS on the 25th of December 2013, sexually penetrated DA, then 12 years old by introducing his penis into her vagina.
AND also in the course of the persistent sexual abuse, DAMI LAGAR APELIS, on the 28th day of March 2016, touched with his fingers the vagina of DA then 15 years old,
AND DAMI LAGAR APELIS on the 28th day of March 2018, sexually penetrated DA, then 15 years old by introducing his penis into her vagina.
AND that on all material times, there was an existing relationship of trust, authority or dependency in that DAMI LAGAR APELIS is the biological paternal grandfather of DA.
7. The prisoner has admitted to the four (4) acts of sexual abuse of DA as pleaded in the indictment. These four (4) acts, as pleaded in the indictment, constitute offences under sections 229A namely sexual penetration of a child and section 229B namely sexual touching of a child, of the Criminal Code Act. And in this case, the prisoner had been charged with persistent sexual abuse of a child under section 229D(1) & (6) to which he has pleaded guilty. Subsection (1) of section 229D permits the prosecution to lay the charge in this manner against the prisoner. It reads and I quote, A person who, on two or more occasions, engages in 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.
PRISONER
8. The prisoner is 66 years old. As stated above, he is from Nakukur in Duke of York in East New Britain Province. His wife is deceased. He had 9 children from his marriage. DA is a child from his first born son. The prisoner has not completed his primary education. He has no formal employment at present. He is a villager and has spent most of his life in the village.
9. I have considered both the pre-sentence report and the means assessment report, of the prisoner. I note the following. The prisoner has a prior conviction record. He was convicted and sentenced on two (2) counts of incest under section 223(1) of the Criminal Code Act on 3 March 2004. He served his sentences of 9 years and 6 years concurrently before he was released back into the community. The prisoner was later arrested and charged for this offence. The probation officer reports that the prisoner may be regarded as a paedophile. He recommends custodial sentence for the prisoner. He said that the prisoner should remain in custody so that he would receive proper rehabilitation training or measures there. The probation officer also observed that the prisoner does not seem to fully appreciate the enormity of the crime that he has committed. The second reason the probation officer states in his report to recommend a custodial sentence is this. He said that based on his findings, the prisoner was and would be a threat to the community. In regard to the means assessment report, the probation officer reports that the prisoner does not have any means to assist pay additional compensation. But according to the prisoner, he said that he has already paid 100 fathoms/param of shell money and two (2) pigs to his eldest son for the offence that he has committed to his son’s daughter.
10. The probation officer did not get the opportunity to interview the victim. DA was said to have left after the incident and is now living with her biological father in West New Britain Province.
REMORSE
11. In the pre-sentence report, the prisoner said these: He said he was very sorry for what had happened between 2013 and 2016. He said that he would make it his business, after he serves his sentence, to officially reconcile with his son and the family.
12. Allocatus was administered on 22 May 2018. The prisoner said these: He said he was sorry for the wrongs that he has committed, to the Court. He said sorry to the children and to the victim DA. He asked for mercy from the Court. He asked the Court to consider the compensation payment which he said he had paid to DA’s father. He also asked the Court to have mercy on him based on his old age. Finally, he asked if the Court could give him a lenient sentence with probation.
LAW- SENTENCE
13. As a start, let me set out the penalty for the offence persistent sexual abuse of a child herein. Section 229D(1)(6) reads:
(1) A person who, on two or more occasions, engages in 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 not exceeding 15 years.
.....
(6) If one of 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.
14. The prisoner, as stated above, has pleaded guilty to the four (4) instances of sexual assaults or abuse on DA. Two (2) of the four (4) sexual assaults involve sexual penetration. Given these, I find that subsection (6) of section 229D shall apply herein, that is, the maximum sentence that is available to me to impose upon the prisoner is life imprisonment.
STATE SUBMISSION
15. The prosecution submits that the maximum sentence for the offence of persistent sexual abuse of a child should be reserved for the worst type cases. The prosecution submits that this case may not fit into the worst type case category for the offence. It submits that the Court should instead impose a custodial sentence which should range from 10 to 15 years. Counsel provided comparative cases as well as aggravating and mitigating factors to assist the Court determine a suitable sentence for the prisoner.
DEFENCE SUBMISSION
16. The defence counsel submits as follows. Firstly, counsel agrees with the prosecution that the offence, which the prisoner has admitted to committing, cannot be categorised into the worst type case category for such offence. Counsel submits that the case should therefore not warrant or attract the maximum penalty of life imprisonment. Counsel has assisted the Court with comparable cases. Counsel has also provided the lists of aggravating and mitigating factors for the Court to take into account. Counsel submits in conclusion that the starting point of sentence for this case should be 10 years imprisonment. Counsel submits that from the said 10 years, the Court should consider the mitigating factors and impose an appropriate sentence upon the prisoner.
FINDINGS
17. First of all, I agree with both counsel that this case does not fit into the worst type of case category for offences under section 229D of the CC Act. I am therefore not minded to impose the maximum penalty of life imprisonment. Having said that, I must remind myself of the intention of Parliament to increase penalties for the offence like persistent sexual abuse of a child. See cases: Stanley Sabiu v. The Sate (2007) SC866 and State v. Kilala Makila (2016) N6507. In my view, the imposition of life imprisonment into section 229D of the CC Act itself is self-explanatory or should I say expressly means that the offence is regarded as a very serious indictable offence. Therefore, the Courts, in my view, must give due regard to this when passing judgments or sentences for offences under section 229D. By that, of course I mean us judges when we are exercising our discretionary powers to sentence prisoners that are found guilty under section 229D of the CC Act.
18. Without life imprisonment as an option for sentence, I am guided by subsection (1) of section 229D which imposes a maximum prison term of 15 years or less. In this case, given that the prisoner has met the qualifications under subsection (6) and the fact that I have decided against imposing life imprisonment, it means that my discretion to impose a suitable prison sentence for this prisoner could be below 15 years or that it could be well above 15 years.
(i) Case Authorities
19. Let me look at the relevant case authorities. I have considered various similar case precedents on sentences under section 229D. The first case that I think is relevant is the case of State v. Eremas Kepas (2007) N3192. The prisoner pleaded guilty to one count of persistent sexual abuse of a child under section 229D(1)(6) of the Criminal Code Act. The prisoner was 60 years old and the victim was 10 years old at the time of the offence. There was a big age gap of 50 years. The prisoner was the victim’s adopted father. The Court therein noted that had it not been for the prisoner’s age and poor medical condition, he would have received a sentence within the range of 25 to 30 years imprisonment. The Court sentenced the prisoner to 12 years imprisonment.
20. The next case is the case of State v. Billy Paulo (2013) N5286. The prisoner pleaded guilty to one count of persistent sexual abuse of her daughter under section 229D(1)6) of the Criminal Code Act. The victim was 7 and 11 years old at the material times of the sexual abuse, one of which was an act of sexual penetration. The prisoner was 51 years old. He was sentenced to 20 years imprisonment less the time he had been in custody.
21. Having considered these cases, I find that the appropriate starting point for this case should be 20 years imprisonment.
(ii) Mitigating/Aggravating Factors
22. Let me now look at the mitigating and aggravating factors. As I have stated, I have considered the submissions of counsel concerning these factors. It seems, in my view, that the aggravating factors outweigh the mitigating factors. Let me explain. There is a big age gap difference, that is, by 49 years. The prisoner is the grandfather of DA and consistent with my finding above in my judgment, this also amounts to a serious breach of trust, authority and dependency. Medical report tendered showed that DA had contracted sexual transmitted decease from the sexual assaults on her. The prisoner’s antecedent report shows that he has a prior conviction. The prisoner had been convicted of a similar offence namely incest upon her own daughter who was a child below the age of 16 years old. I note that the probation officer in the pre-sentence report has assessed the prisoner fitting the description or character of a paedophile.
23. In regard to the mitigation factors, I note the following factors in particular: Firstly, the prisoner has admitted to his crime which has saved the Court’s time. Secondly, he had co-operated and had admitted to the police when he was first interviewed. This is revealed in the tendered record of interview. Thirdly, the prisoner’s admission has also saved DA from the ordeal of revealing what had happened to her. Fourthly, I will take into account the age of the prisoner. He is 66 years old. However, that said, I note that he has committed the crime whilst he was at his old or elderly age, that is, at ages 61 and 64.
SENTENCE
24. I have already found above the starting point for the prisoner’s sentence which is 20 years. For mitigation and aggravating factors, I will only mention the main considerations but this does not mean that I have not had regard to all of them as covered by the counsel or as covered above in my judgment.
25. So taking into account the prisoner’s prior conviction record, the fact that the prisoner has committed four (4) acts of sexual abuse, two (2) of which involve sexual penetration, and the fact that there was a serious breach of trust, authority and dependency, I would add 10 years to the 20 years prison term. The prisoner’s preliminary sentence term now stands at 30 years imprisonment. And taking into account the prisoner’s admission, the time saved based on his plea and compensation payment he made, I would deduct 5 years from the preliminary sentence of 30 years. This will see the preliminary sentence drop to 25 years. I prefer to treat the age consideration separately for this case so I have not taken that into account at this stage.
26. I will impose a head sentence of 25 years imprisonment upon this prisoner. In my view, the prison term imposed herein is a fitting one based on what I have covered above in my judgment.
27. Should the prisoner serve his full sentence of 25 years imprisonment? In my view, had it not been for the prisoner’s old age, I would have answered “yes” to the question. In this case, I note that the prisoner is 66 years old. The pre-sentence report reports that the prisoner does not have any health issues. The report says that the prisoner look exceptionally healthy and well. However, I note that no real medical tests or reports were highlighted in the pre-sentence report to support the assertion in relation to the prisoner’s health by the probation officer. The prisoner may not have much of his active life left to spare for the duration of the sentence that has now been imposed upon him. This is of course the Court of justice and in my view the age consideration cannot be ignored or treated lightly. I note that unlike in a developed country where jail facilities are of exceptional quality including provisions for personal wellbeing for the prisoners or inmates, the jails in this country are generally not well kept or up to date with their facilities. In most cases, they are overcrowded and have always been a challenge to the Department of Correctional Services on a daily basis. I will therefore consider that in my judgment on sentence herein.
28. I will order a partial suspension of the Court’s sentence. That is, first of all, I will fully suspend 10 years of the prisoner’s custodial sentence of 25 years. This reduces his custodial sentence term to 15 years. Secondly, I will order the prisoner to serve a custodial sentence of 9 years till he attains the age of 75 years old. This will leave a balance of 6 years from the 15 years custodial sentence that remain. Thirdly, I will also make an order that the prisoner shall be under probation with imposed conditions, after he serves his 9 years from his 15 years custodial sentence. Fourthly, I will also make an order that the prisoner may apply for variation of the Court order at the National Court, for an earlier release on probation after he fully serves 3 years of his custodial sentence of 15 years.
29. I will not allow any deductions of the time the prisoner has spent in custody.
THE ORDERS OF THE COURT
30. I make the following orders:
The Court orders accordingly.
____________________________________________________________
Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused
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