N9236

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 603 OF 2016

THE STATE

-V-

SHANON HANONI

Alotau: Toliken, J.
2017:	09th May
2018:	12th May

CRIMINAL LAW – Sentence – Persistent Sexual abuse – Guilty Plea – Grandfather/granddaughter relationship – Child 6 years old - Abuse consisted of touching child’s vagina, rubbing of prisoner’s penis etc. over period of two months – Acts considered grooming towards penetration - Circumstances of aggravation - Serious breach of trust – Child under age of 12 years - Aggravating and mitigating factors considered – Appropriate sentence – 13 years – No deduction for time in custody – Nil suspension - Criminal Code Ch. 262. S 299D (1)(6).

Cases Cited: 

Stanley Sabiu v The State (2007) SC866
Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli  Golu v The State [1979] PNGLR 653
The State v Biason Benson Samson (2009) N2799 
The State v Andrew Patapata (2016) N6422
The State v Billy Paulo (2013) N5286
The State v John Taune ; CR No. 975 of 2015 (Unnumbered judgment dated 12th May 2016)
The State v Lenard Kubwa; CR NOs 7 & 8 of 2016 (22nd July 2016)
The State v Doma Moabe; CR NO. 875 of 2015 (16th August 2016)
The State v Washington Dilolai: CR 842 of 2016 (23rd September 2016)
The State v Peter Mark; CR 1300 of 2016 (Unreported and unnumbered judgment dated 18 May 2017)
The State v Mathew Manuwesi; CR 298 of 2014 (Unnumbered and unreported judgment dated 07 October 2016)

Counsel:

J Apo, for the State
P Palek, for the Prisoner 

SENTENCE

12th May, 2018

1.	TOLIKEN J:	Sheldon Hanoni, on 09th May 2017, you pleaded guilty to an indictment charging you with one count of persistent sexual abuse pursuant to Section 229D (1)(6) of the Criminal Code Ch. 262.

2.	Section 229D (1)(6) relevantly provides:

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 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.

3.	Your indictment further pleaded circumstances of aggravation, these being that the complainant was below the age of 12 years and abuse of trust, authority, and dependency.

4.	Section 6A of the Code defines some relationships in which a position of trust, authority and dependency exist may exist. These are not exhaustive though, for there may be other such relationships depending on the prevailing circumstances. Section 6A relevantly provides:

6A.	Relationship of trust, authority or dependency.
(1)	…
(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 counsellor 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 and control.
5.	Your charge was that 01 September 2015 and 31 October 2015, in Alotau, you engaged in conduct of persistent abuse with one ALICE BESINAI a child below 16 years being only 6 years where:

•	On one or more occasions you touched the child’s vagina by rubbing your penis on her vagina for sexual purposes, and
•	On one or more occasions you touched the child for sexual purposes by rubbing your penis on her mouth, and
•	On one or more occasion you allowed and forced the child to touch your penis for sexual purposes.

6.	The State charged that the child was 6 years old at the relevant time and was granddaughter of yours and therefore you stood in a position of trust, authority, and dependency.

7.	You pleaded guilty to the charge and the facts that were put to you on arraignment. These are the facts upon which I am going to sentence you. I entered a provisional plea which I confirmed after I read the Committal Court depositions. 
8.	The facts are as follows: The complainant child is a granddaughter of yours.  At the relevant time was only 6 years old and was living with you in the same house. Between 01st September 2015 and 31st October 2015 you persistently abused the child.

9.	 On all three separate occasions within that period, when family members were either away at work or simply out of the house you would enter the child’s bedroom and touched her sexual parts for sexual purposes. On all three occasions you would undress the child and then allow the child to touch your penis. You would also let her rub your penis against her body, on and around her vagina, and on her mouth.

10.	You requested a Pre-sentence Report (PSR) through your lawyer hence your case was adjourned to 26th May 2017 for your allocutus and submissions on sentence. Your PSR was not ready on 26 May 2017 and the matter was adjourned to 21 June 2017. After that for various reasons we did not get to administer the allocutus and hear submissions until the 22 March 2018. I reserved your sentence for the Month of May, but I could deliver a sentence then as I was on circuit outside Milne Bay.  I am now able to, and this is my judgment on sentence.

11.	The offence of persistent sexual abuse of a child under 16 years of age without circumstances of aggravation carries a maximum penalty of 15 years as we have seen. However, where the abuse consisted of an act of penetration as provided by Section 229D (6) of the Code then an offender is liable to life imprisonment. Furthermore, where the complainant is below 12 years of age and/or where the offender abused a position of trust, authority or dependency, and these circumstances of aggravation are pleaded in the indictment and either admitted or proved, an offender is similarly liable to life imprisonment. This means that Subsections (2)(3) of Section 229A must be read with Section 229D, for to do otherwise would trivialize an offence of persistent sexual abuse of a child under 12 years of age where the offender stood in a position of trust. Section 229A provides:
	
229A.	Sexual penetration of a child.
(1)	A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.
Penalty:	Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.
(2)	If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.
(3)	If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.
(Underlining added)

12.	Such a construction brings out the intention of Parliament that while some acts of abuse might consist of sexual touching only, acts of penetration and the very young age of a child and abuse of trust must necessarily attract a stiffer penalty.

13.	Therefore, while the facts put to you on arraignment do not clearly show that you sexually penetrated the child’s vagina or her mouth for that matter, the child was just six years old – well below 12 years – and you stood in a position of trust. You are therefore liable to be sentenced to life imprisonment.

14.	The Maximum penalty is, however, reserved for worst cases. And so, I must necessarily determine whether your case falls in that category to impose the maximum penalty. So, whatever your sentence will be will largely depend on the circumstances of your case. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State No. (3) [1982] PNGLR 92).

15.	Viewing the circumstances of your case objectively, I do not think that your falls in the worst category. Therefore, it ought to attract a term of years below life.

16.	When considering what an appropriate sentence for you should be, I am guided by the intention of Parliament when it legislated for such offences as yours. Parliament‘s clear intention when it created sexual offences against children, was to protect our children, both girls and boys, from every kind of sexual abuse. And this was because of the rampant abuse perpetrated on these most vulnerable members of our society at an alarming rate by adults.

17.	 Parliament was also mindful that a lot of abusers were people in positions of trust, authority, and dependency such as parents (adoptive or biological), guardians, relatives and others, some of whom are enumerated under Section 6A as we have seen above. Parliament was also cognizant of the fact that abusers are often indiscriminate when it comes to choosing their victims, often not caring about what the age of the victim is. Hence, it decreed that where there is abuse of trust, where the child is under the age of 12 years and in the case of persistent sexual abuse, and where the abuse consisted of at least one act of sexual penetration, an offender may be sentenced to life imprisonment.

18.	The Supreme Court in Sabiu v The State (2007) SC 866, held that the starting point for sexual penetration of a child below the age of 12 years should be 15 years. In that case the Appellant had appealed against his 17-year sentence for sexually penetrating his 6-year-old nephew on the ground that the trial court had failed to take into account five factors which he said mitigated his offence. 

19.	In rejecting the appeal and confirming the 17-year sentence, the Supreme Court said in respect of a starting point for sexual penetration of a child under 12 years of age:

The maximum penalty for sexually penetrating a child under age of 16 years is 25 years imprisonment and the maximum sentence for sexually penetrating a child under 12 years is life imprisonment. What should the starting be in such cases? In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that sexual penetration of children under 12 years is more serious, hence the larger maximum penalty. In the case of The State v Biason Benson Samson [(2009) N2799] (supra) Cannings J. determined that the starting point in a case involving a 13-year-old victim was 15 years imprisonment. We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than 15 years imprisonment. 

20.	What then should be an appropriate starting point for the offence of persistent sexual abuse. I am of the view that where the abuse consists of vaginal penetration of a child, whether penile, digital or with an object other than a body part, or where an offender inserts his penis into the child’s mouth the starting point ought to be 15 years.

21.	 In circumstances where there is no penetration for an offence under Section 229D, but the child is below 12 years, and the offender stands in a position of trust, authority, or dependency the starting point should also be 15 years. The reason is that while there was no penetration, such circumstances of aggravation are further exacerbated or aggravated by the persistent nature of the abuse.

22.	Therefore, in your case I fix a starting point of 15 years. 

23.	Milne Bay Province has had its fair share of this type of offence. Here are some cases which can show you what I have imposed on offenders here.

24.	The State v Billy Paulo (2013) N5286: The offender there pleaded guilty to the persistent sexual abuse of his biological daughter. The abuse started with manual manipulation of the child’s genital area when she was but 7 years old. It continued until the child reached the age of 11 years when the offender first sexually penetrated her vagina. The offender was 42 years old, and hence, there was a huge age difference. The abuse continued for 4 years, and whilst there was no use of violence or force, there was a serious breach of trust and so I felt that the offence was serious enough to warrant a very stiff sentence. 

25.	In that case I commented that while punishment or retribution and deterrence were important objects in sentencing sexual offenders, separating children from abusive adults, including parents and other relatives, is an important object for the protection of the children, which is of paramount importance. I sentence the offender to 20 years imprisonment. No part of his sentence was suspended.

26.	The State v John Taune; CR No. 975 of 2015 (Unnumbered judgment dated 12th May 2016). There I sentenced the offender to 17 years imprisonment for persistently sexually penetrating his 13-year-old stepdaughter over 2 days. There was some element of consent, but since the offender and the complainant were living together in one house, I felt that it was necessary to separate the complainant from the offender, who had expressed a desire to be allowed a non-custodial sentence so that he can resume his life with the complainant’s mother. 

27.	The State v Andrew Patapata (2016) N6422: There the offender, aged 70 years, pleaded guilty to persistently abusing his 15-year-old biological grand-daughter within a period of one month. The abuse involved penile penetration. No force was used, nor did the complainant suffer any physical injuries or fall pregnant or contract an STI. There was an element of consent, and the complainant was a few months shy of the age of consent. However, her education was disrupted. She eventually got married and moved away with her husband. The offender gave 40 hectares of customary land to the complainant by way of compensation. I fixed a starting point of 11 years and imposed a head sentence of 10 years. This was wholly suspended with conditions due to the offender’s advanced age.
28.	The State v Lenard Kubwa; CR NOs 7 & 8 of 2016 (22nd July 2016): There the offender, aged 32 years, pleaded guilty to one count of persistently abusing his biological daughter. The abuse started when the child was 9 years old and ended when she was 13 years old. The abuse comprised of acts of sexual touching and penile penetration. The child did not suffer any physical injuries, no force, violence, or threats of violence was used nor did the victim become pregnant or contract an STI. Nevertheless, this was a very serious breach of trust, and I therefore sentenced the offender to 17 years imprisonment less time spent in custody. Because of the need to separate the child from the offender none of the resultant sentence was suspended.

29.	The State v Doma Moabe, CR NO. 875 of 2015 (16th August 2016). There the 59-year-old offender – a church minister - persistently abused his own daughter by sexually penetrating her with his penis over a period of 6 years. The abuse started when the child was merely 8 years old and the offender was 51 years.  He pleaded guilty to the charge but because of high degree of culpability I sentenced him to 16 years imprisonment. I ordered him to serve 5 years while the balance was suspended condition.

30.	 The State v Washington Dilolai: CR 842 of 2016 (23rd September 2016): The offender there, aged 57 years pleaded guilty to persistently sexually penetrating his 15-year-old niece between the months of April 2015 and October 2015. The abuse started on or about the 01st of April 2015, when the complainant was alone in the house. The offender approached her and indicated that he wanted to have sex with her. The complainant refused and the prisoner threatened her with a bush knife. Out of fear the complainant followed the prisoner to a nearby bush where he forcibly removed her clothes and forced her to lie down on spread leaves. He then removed her clothes and had sex with her by forcing his penis into her vagina. After that he threatened to hit or kill her if she told anyone. 

31.	In the ensuing period after that the prisoner continued to follow the complainant wherever she went and would forcefully have sex with her. This continued until 31st October 2015 when the prisoner followed the complainant as she was returning to their village from another village. He threatened the complainant with a bush knife and took her into the bush, stripped her clothes off, pushed her to the ground and had sex with her by inserting his penis into her vagina.

32.	Soon after that the complainant realised that she was pregnant to the prisoner. She reported the matter to her mother and the matter was subsequently reported to the Police. 
33.      Even though the offender was a first-time offender, had pleaded guilty and advanced in years there were significant aggravating factors against him. There was a serious breach of trust as the prisoner was an uncle of the complainant, use of threats and offensive weapon to secure submission to sexual penetration, the abuse consisted of penile penetration, a significant age difference of 42 years, the complainant became pregnant resulting also in an abrupt end to her education, the prisoner was a serving Village Court Magistrate when he committed the offence and of the prevalence of the offence.

34.      I sentenced the prisoner there to 15 years imprisonment less time in custody. I ordered him to serve 6 years and suspended the balance on condition. 

35.      The State v Mathew Manuwesi; CR 298 of 2014 (Unnumbered and unreported judgment dated 07 October 2016): The offender pleaded guilty to persistently sexually abusing his 15-year-old distant niece. This was a case in which the offender groomed the victim by giving her money whenever she asked. This eventually led to the offender asking the victim for sex in return for the money he had been giving her. The victim agreed and the offender had sex with her. This was followed by two other separate occasions where the offender had sex with victim in exchange for money.  I sentenced the offender there to 15 years imprisonment less time in pre-sentence custody. I ordered that he serves 7 years of that and suspended the balance and placed him on 5 years probation.

36.      The State v Peter Mark; CR 1300 of 2016 (Unreported and unnumbered judgment dated 18 May 2017):  There the 57 year old offender, who was the Provincial Technical and Vocational Educational Training (TVET) Inspector for Milne Bay Province pleaded guilty to persistently sexually abusing his adopted daughter over a period of 4 – 5 years. The abuse started when the child was 8 years old. These acts occurred frequently during the period. On some occasions the offender would force the child to masturbate him or touch his penis until he ejaculated, and on other occasions he would fondle her breasts. On other occasions he would rub his penis on her vagina and lick her vagina with his tongue and on some occasions, he would cause her to suck his penis. And on one occasion he sexually penetrated the child by inserting his penis into her vagina.

37.      I sentenced the prisoner to 17 years less time in pre-sentence custody. I suspended 6 years with conditions from that and ordered that he serves the balance.

38.      Coming back to your case, you are 50 years old and come from Divinai Village, in the Alotau District of Milne Bay. You are married and have 4 children from your previous marriage but none from your current relationship. You are the 4th of 7 siblings and both your parents have passed away. You are a member of the Kwato Church and were educated up to Grade 6 only. You have no prior convictions.

39.      In your short plea in mitigation, you apologised for breaking the law and for what you had done to the victim. And you also apologised to God.

40.      Your Lawyer Mr. Palek submitted that yours is not a worst instance of persistent sexual abuse. Counsel submitted that the victim did not suffer physically, nor did she contract any sexually transmitted infection (STI), you entered an early guilty plea, you are inadequately educated, and had expressed remorse.

41.     Mr. Palek suggested that an appropriate sentence for you should be 13 – 15 years.

42.     The author of your PSR left it to the Court to impose an appropriate sentence for you. I note, however, from the report that you freely admitted your offence and that you have tried unsuccessfully to compensate the victim and reconcile with her family.

43.     Mr. Kupman replied in behalf of the State that even though you pleaded guilty and the victim did not sustain physical injuries, these fade into insignificance when considered against the aggravating factors of your case, principle among which are the emotional and physical trauma the child will have to live with for the rest of her considering that you are a relative and have been living together and in all probability will continue to be in constant contact with each other. Then there is the breach of trust and the age difference between you and the child.  Mr. Kupmain asked for a sentence between 15 – 17 years.

44.     I find the follow mitigating factors in your favour. You pleaded guilty to the offence and it was an early plea. You also co-operated with the police, and I note from you Record of Interview that you made early admissions by freely answering questions put to you. I also accept that you are poorly educated though this ought not justify your act as you ought to have known that what you did to the child was wrong. I accept that the child did not suffer any physical injuries, but experience and empirical evidence shows that the child would suffer psychologically, and the experience may come back to haunt her later in life. I also accept that you are a first-time offender. 

45.      You have apologised to the victim and have tried to compensate her and reconciled with her mother and other relatives, but I do not see this as genuine contrition for your offence. This is more likely for your own interest than anything else. Besides any offer for compensation will entirely be meaningless as the child will not benefit directly. In any case compensation or offers thereto in cases involving children as young as your victim should never be entertained as they engender the impression that all will end well simply because compensation has been paid. The victim child’s mother was therefore justified in refusing your attempts for compensation and reconciliation. Finally, I find in your favour that your abuse subsisted for a period of just about two months.

46.      Your mitigating factors, however, fade into insignificance when considered against your aggravating factors, most of which are statutory.  The child was your granddaughter as she was your late partner’s niece’s daughter. This was a close relationship where you and the child were living in the same house. You therefore stood in a very close relationship of trust, authority, and dependency towards the child. The child was merely 6 years old and therefore was 10 years below the age of consent. If that were not enough there was an age difference of some 41 years between you and the child. What you did constituted what in my view was an act of sexual grooming as well, because if your abuse had not come to light, you would have ended up sexually penetrating the child with your penis. And that I take against you also. 

47.       The facts state that you rubbed your penis on the child’s mouth, but in Q & A 23 you said that when the child would hold your penis, she would insert it into her mouth on her own accord. That is an act of penetration, and it matters not whether the child put your penis into her month herself as she was incapable of consenting to any of all those sexual activities you did to her.

48.       This is a very prevalent offence in this province and previous sentences do not appear to have had any impact or deterrent effect at all. The alarming thing is that the great majority of offenders are middle-aged and very old men and invariably men who are closely related to the victim. 

49.      Therefore, for offenders like you any sentence must also have the added aim or purpose of separation – separating you from the victim for a sufficiently long period of time so that she can grow up in relative safety in a home free from paedophiles like you.

50.     Taking all this into consideration while accepting that none of the cases cited above are quite similar to yours in that they mostly involved penile penetration, I am of the view that an appropriate sentence for should be 13 years imprisonment.

51.      I therefore sentence you to 13 years imprisonment with hard labour. Pursuant to my discretion under the Criminal Law (Sentencing) Act, none of any time you spent in custody while waiting your trial will be deducted. Lastly no portion of your sentence will be suspended.

52.      You will serve your sentence at Giligili Corrective Institution, and you have the right to appeal to the Supreme Court within 40 days should you be aggrieved.

Ordered accordingly. 
________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State	
L B Mamu, Public Solicitor: Lawyer for the prisoner