N7326

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.  N0. 796-797 of 2016 

THE STATE

V

TOVIN TOGUATA
(No 2)

Kokopo:  Susame, AJ
2018:  27 June

CRIMINAL LAW – Sentence After Trial –Offence -Persistent Sexual Abuse Of Girl Under 16 Years Of Age –S 229d (1) (6) Criminal Code (Sexual Offence And Crimes Against Children) Act 2002 – Accused 43 Years Old- Female Child 15 Years Old- Blood Relatives – Child Is A Niece To Accused – Relationship Of Trust, Authority Or Dependency Exist- Breach Of That Trust – Guiding Considerations For Sexual Penetration Case – Prevalence Of Offence – Comparative Judgments – Gradual Increase In Sentences Imposed In Recent Times- 20 Years Head Sentence Imposed. 

Cases Cited:

Rex Liau v The State [1990] PNGLR 487
The State v Robert Togie (2018) N7304 
Sabiu v State [2007] PGSC 24; SC866 
The State v Mokei (No 2) [2004] PGNC 129; N2635 
The State v Ndrakum Pu – Up (2005) N2949
Golu Golu v The State [1988-89] PNGLR 653
The State v Kikia Solowet [2007] PGNC 226; N5039 
John Elipa Kalabus v The State [1988] PNGLR 193 
The State v Henry Wartia (2018) N7293  

Counsel:

Miss. Batil, for the State
Miss. Marum, for the Prisoner

DECISION ON SENTENCE

27 June, 2018

1. SUSAME, AJ: You are in court as a prisoner to receive your sentence after court found you guilty on trial for the offence of persistent sexual abuse of a girl under 16 years of age under s 229D (1) (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

2.	What sentence should be imposed on you? First, let me lay out the offence and the penalty provision. 

229D. PERSISTENT SEXUAL ABUSE OF A CHILD 

(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 abuse of a child. Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years. 
(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion. 
(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred. 
(4) A charge of an offence against this section – 
(a) must specify with reasonable particularity the period during which the offence against this section occurred; and
 (b) must describe the nature of the separate offences alleged to have been committed by the accused during that period. 
(5) For an accused to be committed of an offence against this section – 
(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and 
 (b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions. 
(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. (Emphasis added)

3.	By committing the offence you have attracted upon yourself life imprisonment. But that is subject to s19 which court may invoke for a lesser penalty to be imposed. 

4.	The exercise of the sentencing power is to be exercised judicially with care, due diligence and properly having regard to sentencing guidelines, factual circumstances of the case, factors of aggravation and mitigation, any extenuating circumstances and purpose sentence is aimed at achieving. It is power held it trust and exercised by the courts for and on half of the people.  It is a difficult task of the court in fixing a particular term of sentence for a particular case in mathematical precision.  

5.	Late Kapi DCJ (as he then was) perhaps expressed it appropriately the in Rex Liau v The State [1990] PNGLR 487) at 489 when he stated; 

“The exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles.”

SENTENCING CONSIDERATIONS IN SEXUAL PENETRATION CASES.

6.     In a recent case of The State v Robert Togie (2018) N7304 I adopted the sentencing considerations enumerated in The Supreme Court in Sabiu v State [2007] PGSC 24; SC866. These considerations were laid down in  The State v Mokei (No 2) [2004] PGNC 129; N2635 and followed in State v Ndrakum Pu – Up (2005) N2949 as alluded to in the defence submission.  The considerations constitute factors of aggravation and mitigation. I adopt them, inclusive with my answers.  

a) Is there only a small age difference between the offender and the victim?  Ans:  No. Prisoner was 43 years old and the girl 15 years old when crime was committed, so huge age difference of 28 years 
b) Is the victim not far under the age of 16 years? Ans. Yes. Girl was 15, just a difference of one year
c) Was there consent?    Ans.  No. 
d) Was there only one offender?     Ans. Yes
e) Did the offender use a threatening weapon and not use aggravated physical violence?   Ans. No
f) Did the offender cause physical injury and pass on a sexually transmitted disease to the victim?   Ans.   No. 
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?   Ans. Yes, it was a close one
h) Was it an isolated incident?   Ans. No
i) Did the offender give himself up after the incident?   Ans. No
j) Did the offender cooperate with the police in their investigations?  Ans. No
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 apologizing for what he did?     Ans. No, except in the court room.
l) Has the offender caused further trouble to the victim or the victim’s family since the incident?   Ans. No
m) Has the offender pleaded guilty?   Ans. No
n) Has the offender genuinely expressed remorse? Ans. No. There was no genuine reconciliation with the girl and her family
o) Is this his first offence?  Ans. Yes
p) Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?   Ans. No
q) Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?   Ans. Yes. No pregnancy. 

7.	Based or guided by the above measure aggravating factors far outweighs mitigating factors.  Having said that though I do not consider your case to be in the worst category to attract the maximum life year sentence in view of the criteria established by case authorities. (See Golu Golu v The State [1988-89] PNGLR 653).  In the exercise of sentencing powers vested in this court by s19 a sentence below the maximum shall be imposed guided by past decided cases and other considerations 

COMPARABLE JUDGMENTS 

8.    Both counsels have cited a number of decisions in their respective submissions. These are but few of a large volume of decisions on sexual offences cases. Sentence vary on case by case depending on their facts and circumstances of the case. The cases cited serve useful guides in reaching an appropriate sentence. Of the cases cited (in particular cited by the prosecution) that involved persistent sexual abuse of girls under the age of 16 years between immediate or close relatives are more relevant and should serve as useful guide. These are;

1.	The State v Nelson Tubavai (2006) N6624; 
2.	The State v Kikia Solowet [2007] PGNC 226; N5039 
3.	The State v Makis (2012) N4888; 
4.	The State v Alois Padik (N0.3) [2016] PGNC 91; 6296 
5.	The State v Paul Save [2014] PGNC 228; N5759 
6.	The State v Kilala Makile [2016] PGNC 306; N6507. 

9.	Cases 1, 3 & 5 are early plea cases. Sentences passed were, 10 years, 27 years and 18 years respectively. Sentences imposed in the remaining cases were after trial. Sentence of 10 years, 20 years and 25 years were imposed respectively.  

10.	Courts are beginning to impose stiffer sentences in the recent times against such crimes. This no doubt is in response to the society’s call against such heinous and immoral crimes which are ever prevalent.  As an illustration in The State v Eki Kondi & 4 ors (No 2) (2004) PGNC 226; N2543 His Honor Kandakasi J presiding expressed this; 

“The duty is now on the Court to respond appropriately to the community’s reaction to the crime of rape with a stiffer sentence than those imposed to date in similar cases. This is necessary for a number of reasons. Firstly, the Courts have given sufficient warning of an increase in sentences in many judgments of both this Court and the Supreme Court. Secondly, the nature of the offence itself is such that, it is a serious violation of a woman or a girl. Thirdly, past sentences have not deterred other persons like you from committing the offence. Finally, the Courts exercise a power that belongs to the community, who expect the Courts to act as they themselves would, but within the constraints of the Constitution.”

Although the sentiments were expressed concerning rape cases they are also relevant in sexual abuse cases against under age children which are far too common in this day and age. I endorse the views expressed by His Honor. This court will not deviate from the current sentencing trend demonstrated in the cases cited. 

11.	I prefer to use The State v Kikia Solowet (supra) as a guide in deciding your sentence. The facts are distinguishable to this case but has some basic similarities. In that case the prisoner, aged 58 years persistently sexually abused his 9 year old niece by inserting his finger into her vagina. There was a huge age difference between the prisoner and the girl. Court considered head sentence of 20 years but that was reduced to 10 years sentence imposed.

ALLOCUTUS

12.     You stated this when allocutus was administered: “I say sorry to Court and God for what I have done. I promise before God and this court that for what I have done that will be the first and last. I am a family man at home. My mother is still alive and is disable. I looked after her. Two weeks I have been in CS. She is worried about me, she is not healthy. I asked court to have leniency on me. I ask to be placed on good behavior bond.”

ANTECEDANTS

13.    I note from your antecedent report you were 43 years old in 2015, the year you committed the offence. You are now 46 years old. You are married and have 5 children.

COURT’S OPINION
 
14.     Let me make few observations in response to your statement at the allocutus, the facts of the case and sentence suggested by your counsel. 
15.	First of all it you said sorry to the court and God for wrong you committed. It has been considered by the courts that mere expression of remorse by word of mouth at the 11th hour just before sentence is passed is not enough. (See John Elipa Kalabus v The State [1988] PNGLR 193 & The State v Henry Wartia (2018) N7293. I maintain the same view. 

16.	If the court is to accept your remorse as genuine, you should have done more than just apologizing to the court and God. You should have really said sorry to your younger brother and her daughter and reconciled with them tangibly at the earliest opportune time and not wait when you are about to receive sentence. They are the ones you wronged to accept your apology. 

17.	The concerns about your wife, children and disable mother are surpassed by the gravity of the offence and aggravating factors alluded to earlier. As such a good behavior bond sentence will not be commensurate to the seriousness of the offence in doing justice.  

18.	You were sexually obsessed picked on the wrong person to satisfy your sexual cravings, commencing with the showing of pornographic pictures to her followed by sexual penetrating on few times under undue influence. The girl was your niece a close blood family member. You were so obsessed that you showed no respect to her and continued to sexually abuse her despite her protest to make you stop until she fled to live with her biological father at the end of the school year. 

19.	You have brought shame and bitterness to yourself, your wife and children, your brother and her daughter. If that is not enough you made the girl to attend court to be subjected to intense cross- examination, causing her more embarrassment and distress. 

 20.	To add more, your brother placed his daughter under your immediate care with some degree of trust and confidence. Under that family arrangement the girl looked up to you as an uncle or ‘big papa’ for provision of welfare support, advice, counseling and guidance till she was old enough to get married. You gave no regard to those values, instead breached the trust, authority or dependency they had of you. That is quite serious.

21.	This type of offence amongst family members are far too common in East New Britain Province and is a real concern. There seems be less regard of biblical and customary values as well as respect for under aged children who easily fall prey to adult men or older adolescence. Sentence imposed should ring loud and clear for purposes of personal and public deterrence against such crimes as well as your rehabilitation. 

22.	In view of all that I have expressed I consider a 6 years sentence pleaded by the counsel representing you is inadequate and not appropriate in doing justice for the common good. Alternatively, I consider a head sentence of 20 years should be the starting point in your case. There are no extenuating circumstances that would mitigate your sentence below that 20 years mark. 

23.	Accordingly, the court sentenced you to 20 years imprisonment with hard labor. No portion of the sentence shall be suspended. Pre –sentence custody period shall be discounted from the sentence.  The resultant sentence to be served at the Kerevat Jail subject to further remission by the goal command. 	 I order that prisoner’s K600.00 bail be refunded forthwith.
_________________________________________________________________
Public Prosecutor:	 Lawyer for the State					
Public Solicitor:	 Lawyer for the Accused