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State v Otto [2019] PGNC 230; N7907 (10 July 2019)

N7907

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 27 of 2019

THE STATE
-v-

AMOS OTTO

Lorengau: Geita J
2019: 9, 10 July

CRIMINAL LAW – Sentence – Guilty plea – Persistence sexual abuse – Child under 15 years – biological daughter -Section 229D (1) (6) Criminal Code Act as amended.

CRIMINAL LAW – Guilty Plea – Deposition Evidence – Mitigating and Aggravating circumstances – First time offender- no serious assault- no weapon used- Remorseful.

CRIMINAL LAW – Sentence – Guilty plea – A properly documented instance (s) of persistent sexual abuse beyond two must be meted with stiffer sentence – Only one instance documented.

Cases Cited

Goli Golu v The State [1979] PNGLR 653
John Kalabus v The State [1988] PNGLR 193
The State v Brian Nimu Sindra Cr. 21 of 2019, (12-17 June 2019)
The State v Cletus Barak N7398 [2018] 20 July, Angoram, Wewak)
The State v Joe Mui Cr, N1495 [2010]
The State v Michael Ramram N 7212 [2017] 19; May, Vanimo.)
The State v Richard Koginmo Cr. No.147 [ 2012]
Ure Hane v The State [1984] PNGLR 105

Counsel:

Mr. Paul Tusais, for the State
Mr. Kusunan Pokiton, for the Prisoner

JUDGMENT ON SENTENCE

10 July, 2019

1. GEITA J: The offender pleaded guilty to persistent sexual abuse of his biological daughter, then under the age of 16 years contrary to s.229D (1) and (6) of the Criminal Code Act as amended. This offence attracts a maximum life imprisonment however Section 19 (1) (a) (b) of the Criminal Code gives courts power to impose lesser sentences.

The Facts

2. The relevant facts put to you during your arraignment and the agreed facts by the prosecution and your lawyer on the depositions for the plea of guilty are these. Between 10 January 2017 and 31 July 2018, you persistently sexually abused your daughter by penile penetration inside your home and outside on numerous occasions. Similarly, you inserted your fingers into her vagina and sexually touched her breasts, culminating into virginal penetration on all occasions.

Allocutus

3. During the administration of allocutus or when you were given the opportunity to speak on the question of penalty you admitted the wrong committed and asked the Court for leniency on you. You further pleaded to Court to have this matter resolved through customary means and also through church circles.

Mitigation Circumstances
4. 1. No prior convictions, first time offender
2. No weapons were used during the crime
3. Prisoner cooperated with police
4. Early guilty plea, saving court time and the victim from
reliving the horrific memories.
5. Apologised to the victim
6. No force used on the victim

Aggravating Circumstances

5. 1. The victim child was 15 years old
2. Victim will remain with physical and psychological scars for life
3. Abuse of trust
4. Victim was his biological daughter

Pre- Sentence Report- Community Attitudes

6. A pre-sentence report was not applied for at the time by Defence Counsel. Defence was content with proceedings thus far and proceeded to address Court on sentence through his prepared submissions. The need for a pre-sentence report was thus waived.

Submissions on Sentence

7. Defence Lawyer Mr. Kusunan Pokiton submitted that your case must be determined by its own set of circumstances, to which I agree. As regards a sentence appropriate to the set of facts in this case Mr. Pokiton submitted that this was not the worst type of persistent sexual abuse case and maximum life sentence not be imposed. (Ure Hane v The State). In light of the prisoner’s guilty plea, no prior conviction and no physical harm was caused to the complainant and that the accused was the only bread winner for his family of five children. Mr. Kusunan submitted that Court consider a sentencing range between 13 – 17 years. In support of his arguments on behalf of his client four earlier cases were referred to the Court. The three near relevant ones are documented hereunder:

8. Mr Kusunan submitted that the current case was not the worst of its kind compared to the cases referred to this court. He submitted that any sentence beyond 20 years would be detrimental to the accused and his family as they rely on him for their survival and sustenance, including school fees. He called for a rehabilitative sentence with a shorter prison term.

9. The Public Prosecutor Mr Paul Tusais in his brief oral submissions asserted that the offence was very serious with aggravating factors in that the victim child was 15 years and was the biological daughter of the accused. Furthermore, the crime was committed over a 12 months period resulting in persistent sexual abuse of his daughter. He submitted that a non-custodial sentence was not appropriate under the circumstances. The following two cases which I presided upon in Wewak and Vanimo on persistent sexual abuse were brought to my attention:

10. On the strength of these two judgments Mr. Tusai’s submitted that the going rate of such similar sentences fall between 19 years and 25 years at it’s highest. He submitted that the Court should be guided by the two cases.

Decision of the Court

11. The first issue is whether the offence committed by the prisoner is of the worst type and whether the court should impose the maximum prescribed sentence. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus [1988] PNGLR 193). I do not consider this case to be of the worst kind. The maximum sentence will not be imposed.
12. The second issue is framed in this question and that is what is an appropriate sentence in your case? I have had the benefit of submissions from both lawyers on all relevant issues. Although I do not have the benefit of a pre-sentence report the accused personal particulars and special concerns have been adequately canvassed by Mr. Pokiton in his submissions. As to whether I should consider suspending parts of your sentence, those will depend on points favourable to you and points against you.

Sentence in your case

13. I make special allowance for your guilty plea, no previous convictions and that you are remorseful. I take judicial notice that you are well into self-rehabilitation and recently baptised. Your church pastor has spoken very highly of you and that is a credit to you. Your plea for leniency and shifting blame onto your former wife’s adulterous past resulting in your actions is shallow and abhorred. You committed the crime on your very daughter who will live with the stigma for the rest of her life.

14. Gauging from the cases that were referred to me by your Lawyer and the Public Prosecutor in persistent sexual abuse cases is a low 12 years to a high 30 years appears to be the common trend in sentencing. For the moment I will distinguish the Michael Ramram and the Cletus Barak cases from your case. In those two cases all persistent sexual abuses were documented with near precise dates and times. Four instances in all in each of those two cases I dealt you. In your case there was only one documents incident notwithstanding the fact that the abuse occurred over a 12 months period. That in my view is your saving grace. I am of the view that properly documented instances of persistent sexual abuses beyond 2 instances must be meted with stiffer sentences. Similarly, the Brian Sindra case is distinguished, the victim was impregnated by her father resulting in a sentence of 23 years. This case is not as serious as the three cases dissected above. To this end and after having considered all the information before me in your favour and against you I am satisfied that that an appropriate starting point in your case is 16 years. In the exercise of my powers under s 19 (1) of the Criminal Code Act, I will further suspend parts of your sentence. The sentence I now imposed upon you is as follows:

1. You are sentenced to 16 years imprisonment in hard labour, less any pre-trial custody period available to you.
2. You must serve sentence of 8 years after which you will be considered for Probation and to be of good behaviour.

Ordered accordingly.

______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner