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State v Korisibeni (No. 2) [2020] PGNC 211; N8421 (14 July 2020)

N8421

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO 84 OF 2017


THE STATE


V


DOWNSE KORISIBENI
(No 2)


Alotau: Toliken J
2020: 14th July


CRIMINAL LAW – Sentence – Sexual touching of a child under 16 years of age – Two counts – Circumstances of aggravation – Teacher/pupil relationship - Serious breach of trust – Child under 12 years of age – Mitigating and aggravating factors considered – Prevalent and pervasive offence – Need for deterrence and punishment – Appropriate sentence – 7 years for each count to run concurrently less time in pretrial/sentence detention – Nil Suspension - Criminal Code Ch. 262,s229B (1)(a)(4)(5)


Cases Cited:


Avia Aihi v The State (No. 3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
The State v Thomas Tukaliu (2006) N3026
The State v Downse Korisibeni (2019) N8244
The State v Torrie (2015) N5966
The State v Moses (2012) N4886
The State v LerryIari; Cr No, 1347 (Unreported and unnumbered judgment dated 09th May 2016)
The State v Henry Lasalo; CR 38 of 2014 (unreported and unnumbered judgment dated 17 August 2015)
The State v Bill Karaheri, CR 365 of 2012 (unreported and unnumbered judgment dated 3 November 2015)
The State v Garry Edwin Menuwe; CR 1398 of 2014 (unreported and unnumbered judgment dated 9 December 2015)
The State v Moses Dirtala; CR 347 of 2015 (unreported and unnumbered judgment dated 9 December 2015)
The State v Thomas Manasi, CR No. 661 of 2011 (unnumbered and unreported judgement dated 9th of August 2013)
The State v Temule George; CR 726 of 2014
Ure Hane v The State [1984] PNGLR 105


Counsel:


  1. Kupmain, for the State

N. Wallis, for the prisoner


JUDGMENT ON SENTENCE

14thJuly, 2020


  1. TOLIKEN, J: The Prisoner Downes Korisibeni was convicted after trial for two counts of unlawful touching of child under the age of 12 years in respect of whom he stood in a position of trust pursuant to Section 299B (1)(a)(4)(5)of the Criminal Code Ch.262. (the Code)

FACTS


  1. The brief supporting facts are that the prisoner was an Elementary School teacher at Wamawamana Elementary School. The victim was one of his pupils. She was 10 years old at that time. At trial I found that on a Thursday and Friday some time on the last week of April 2016, the prisoner touched the victim’s vagina with his fingers for sexual purposes on two separate occasions.
  2. On the first occasion I found that the prisoner called the victim into his office one Thursday morning, put his hand under her skirt and touched her vagina. And on the second occasion, which was the next day, a Friday, he again called the victim into his office, shut the door behind her and told her to sit on his laps. And when she resisted, he got her onto his laps, spread her legs and again touched her vagina. He then let her go but not before telling her that she was a good girl and that she should not tell anyone what he had done to her.
  3. The matter came to light when other girls in the school reported having been similarly sexually assaulted by the prisoner. The prisoner was thereafter arrested for the offences against the victim in the instant case and for the other allegations pertaining to the other girls, for which the prisoner had been committed to the National Court for trial but stands unindicted. See The State v Downse Korisibeni (2019) N8244 (14 November 2019) for the full judgment on verdict)

THE OFFENCE


  1. Section 229 (1) (a) (4) of the Code relevantly provides:

229B Sexual Touching

(1) A person who for sexual purposes
(b) ...................................

is guilty of a crime.

Penalty: Subject to Subsection (4) and (5) imprisonment for a term not exceeding seven years.

...

(4) 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 12 years.
(5) 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 to imprisonment for a term not exceeding 12 years.
  1. While the maximum penalty for the offence, where the child is under the age of 12 years or there is an existing relationship of trust, authority or dependency is 12 years imprisonment, it is well settled that the maximum penalty is usually reserved for the worst instances of offending. Furthermore, offenders are also usually sentenced on an individual basis. In other words, whatever an offender’s sentence will be will depend on the peculiar facts and circumstances of his case. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105)

ISSUES

  1. I need to determine the following issues:
    1. Is this a worst instance of sexual touching of a child deserving of the maximum penalty?
    2. If, not what then ought to be an appropriate sentence?

WHETHER WORST CASE

  1. At the outset I must say that when viewed objectively, while this case may not necessarily be a worst instance of sexual touching, it is nonetheless very serious because of the presence of two circumstances of aggravation – the child was under 12 years of age and the existence of a position of trust, authority and dependency and the breach thereof. The only thing that prevents it from being considered a worst case is that the victim did not sustain any physical injury, needless to say though that she may have or stand to suffer some psychological harm which may not necessarily manifest immediately but later on in life. The prisoner’s culpability was, in short, very high. I will therefore set the starting point for this case at 6 years, which I would say ought to be an appropriate starting point for this offence.

ANTECEDENTS


  1. The prisoner is 36 years old and comes from Wamawanana village, Maramathana LLG, Alotau District, Milne Bay Province. He committed the offence when he was 33 years old. He is an Elementary School Teacher and at the time he committed the offence, was the Head Teacher of the Wamawamana Elementary School. He is married with 2 children, aged 14 and 4 years. He is the second born in a family of two male siblings. His father is deceased, but his mother is still alive though now well along in years. Before becoming a teacher, he was briefly employed by Milne Bay Estates (February 2003 – October 2003) before leaving to care for his sick father. He first taught at Alotau Elementary School and in 2006 he took up his permanent posting at Wamawamana Elementary School where he was teaching when arrested. He was educated up to Grade 10 and is an Anglican. He has been in pre-trial/sentence detention for a period of 4 years and 12 days. He is a first-time offender.

ALLOCUTUS

  1. The prisoner maintained his innocence even after his conviction. Nevertheless, he said he accepted the Court’s decision and said he was sorry. He said the conviction will help him become a better person. He was concerned about the welfare of his family where his wife now struggles to care for herself and their two children.

SUBMISSIONS

  1. Mr. Wallis submitted in behalf of the prisoner that an appropriate sentence for him ought to be 4 – 6 years. Counsel submitted that there are several mitigating factors including the fact that the prisoner is a first-time offender, he did not use any weapons on the victim nor inflict physical injuries on her, although counsel acknowledged that she may suffer psychologically.
  2. Counsel cited several cases to assist the Court in arriving at an appropriate sentence, the factual circumstances of at least three of which he said are similar to the current case. These are:
  3. The prisoner’s Pre-sentence Report (PSR) is non-committal – the author leaving it to the court to impose an appropriate sentence at its discretion, but not without noting the very serious nature of the offence. The prisoner continued to maintain his innocence. Despite that he offered to pay compensation in cash and kind to the value of K2,650 to the victim’s family. The victim’s parents, however, flatly refused any compensation. Senior Department of Education Officers Mrs John Mario (Senior School Inspector, Alotau District) and Tou Liko (School Inspector, Alotau District) who were interviewed for the PSR, both were of the view that they will not entertain reinstating the prisoner. Mr. Marion commented that the prisoner does not deserve reinstatement because he is a high risk to children. Village Councilor Tennyson Buneara, was, however, of the view that the prisoner will have learned his lesson and would be a changed man, and he was willing to supervise him should he be placed on probation.
  4. Mr. Kupmain on the other hand submitted in behalf of the State that this is a teacher/student relationship where the breach of trust was very serious because as a teacher the prisoner stepped into a child’s parents’ shoes. There is therefore need for strong deterrence and counsel therefore asked for a sentence between 5 – 8 years.

MTIGATING FACTORS


  1. I take the following mitigating factors in favour of the prisoner:
  1. Against him, however, are the following aggravating factors:

DELIBERATIONS

  1. What then should be an appropriate sentence for this prisoner? As I have said at the outset his sentence must be commensurate with the facts and circumstances of his case. These, however, have to be weighed against the purpose and object of sentencing for this particular type of offence – child abuse. And to that end it must reiterated that with the passage or enactment of legislation to specifically target and address abject sexual abuse and exploitation of children, Parliament has spoken loudly and clearly. Abusers of our most vulnerable members of society must be severely punished. Those who stand in positions of trust, authority or dependency such as parents, relatives, teachers and others must face higher and more sever sentences when they breach the trust reposed in them by the law and society in general.
  2. The prisoner here must therefore be served with an appropriately stiff sentence because he breached the trust that was reposed in him as a teacher. The teaching profession is the noblest of professions in my opinion. It takes a special kind of character to be a teacher. Principal among the qualities demanded of a teacher is a love for children and teaching and inculcating knowledge into young minds.
  3. While parents as first teachers of a child have the primary duty of inculcating and instilling moral values to their child, school teachers effectively step into parents’ shoes when a child goes to school. They therefore play an important role in shaping, not only the intellect of a child, but the child’s moral values as well to a large extent. There is therefore imposed on teachers a heavy trust which is not only a moral one but also a legal one. And so, when that trust is broken or breached by a teacher or a parent for that matter, courts are duty-bound to impose appropriate sentences to protect children and society generally for the purpose of punishment and deterrence.
  4. Sexual abuse of children is very prevalent and pervasive. Sexual predators often start off in their often life-long course of predation by grooming unsuspecting and vulnerable children, graduating to sexual touching and manipulation of a child’s sexual parts including genital and eventually culminate in penetrative sex. In the predator’s quest for sexual satisfaction and lust, the child becomes nothing but an object of sex.
  5. In the instant case, I must impose a sentence that must impress upon the prisoner that you cannot sexually abuse your student or pupil and expect to get off lightly. I have set the starting point at 6 years which I think is the appropriate starting point for this offence generally.
  6. When considered together, the mitigating and aggravating factors appear to balance out numerically. Be that as it may, what matters, in my view is the quality of those factors weighed against the prisoner’s degree of culpability. And so, in that regard I am of the opinion the prisoner’s aggravating factors far outweigh his mitigating factors. I am of the view therefore that the prisoner’s head sentence ought to be placed either at the starting point or above it.
  7. As I said, this is a prevalent offence not only nationally but also locally here in the Milne Bay Province. Mr. Wallis referred me to several cases, three of which I have already mentioned, because counsel was of the view that their factual circumstances are similar to those in the instant case. To give us some idea about what has been imposed here in Milne Bay, I cite the following, all of which involved breach of trust.

Comparative Cases


  1. The State v Torrie (2015) N5966: There the 83 year old offender licked his 4 year old great-grand daughter’s vagina with his tongue. I sentenced him to 4 years imprisonment and because of his advanced age, I fully suspended the sentence and placed him on probation with an additional condition that he leaves the Milne Bay Province and return to his own province (Manus) and that he shall not have any contact with girls under 16 years without the presence of other adults.
  2. The State v Henry Lasalo; CR 38 of 2014 (unreported and unnumbered judgment dated 17 August 2015): The offender pleaded guilty for sexually touching his 12 year old niece’s vagina. I sentenced the offender to 5 years which I wholly suspended on terms.
  3. The State v Bill Karaheri, CR 365 of 2012 (unreported and unnumbered judgment dated 3 November 2015): The offender pleaded guilty to sexually touching the victim’s vagina with his fingers. He was a first-time offender and was drunk at the time of the offence. I sentenced him to 5 years less time in custody. The balance was wholly suspended and offender was placed on 3 years probation.
  4. The State v Garry Edwin Menuwe; CR 1398 of 2014 (unreported and unnumbered judgment dated 9 December 2015): The offender pleaded guilty to sexually touching his grand-daughter’s vagina. The victim suffered some injuries. I sentenced the offender to 5 years less time in pre-trial custody. I ordered the offender to serve 1 year while the balance was suspended on condition.
  5. The State v Moses Dirtala; CR 347 of 2015 (unreported and unnumbered judgment dated 9 December 2015): The offender. aged 37 years, lured his 6-year-old grand-daughter into the bush on the pretext of showing her a cubby house, but instead proceeded to rub his penis on the child’s vagina. On a plea I sentenced him to 6 years less time in custody. I ordered that he serves 2 years and suspended the balance.
  6. The State v Lerry Iari (supra): On a plea of guilty the 30 year-old offender touched his 10 year old step-daughter’s vagina with his fingers. I sentenced him to 5 years imprisonment less time spent in pre-sentence detention. None of the balance was suspended.
  7. The State v Thomas Manasi, CR No. 661 of 2011 (unnumbered and unreported judgement dated 9th of August 2013). I sentenced the 75-year-old offender to 3 years each for two counts of sexual touching. The prisoner had called two girls aged 9 and 6 years, who were his classificatory grand daughters to his room. He removed their clothes and touched their vaginas. The prisoner was remorseful and had reconciled with the girls, and their families. Because of his advanced age and other good factors, I suspended his sentence fully with conditions.
  8. The State v Temule George; CR 726 of 2014 (Kassman J): The offender pleaded guilty to sexually touching his 8 year old niece with his penis. He was sentence to 5 years less time in pre-trial custody. The balance was then wholly suspended.
  9. From the above cases we will see that the sentences ranged from 4 – 6 years. Some offenders got suspended sentences while some did not. The prisoner here should therefore expect to receive a similar if not a slightly higher sentence as most of the above cases were plea matters.
  10. I do agree with Mr. Wallis that the circumstances in The State v Tukaliu (supra) and The State v Lerry Iari (supra) are quite similar to the instant case. The victims there were both 10 years old. Tukaliu was convicted on two counts as opposed to Lerry’s one count. Both, however, pleaded guilty while the prisoner here opted to force a trial, which is his right to do, but in so doing he had to force the victim to come to Court and relive her ordeal before strangers, which, needless to say only added to her shame and psychological trauma.
  11. The prisoner is unremorseful and that is a significant factor against him. He is legitimately worried about his own child and his wife and mother. He cannot, however, blame anybody else, but himself for their predicament. He ought to have thought about them before he did what he did. There is no question that his loved ones have suffered and will continue to suffer, but he can thank himself for their suffering. (Utieng v The State; SCR 15 of 2000 (Unnumbered judgment dated 23rd November 2000)

SENTENCE


  1. And so, with the need for deterrence (both personal and general) and for the protection of children, especially girls, in our villages, towns and schools, I should think that appropriate sentences for the prisoner would be 7 years for both counts. That is a notional total of 14 years. The counts were separated by a day, but on the same victim and so the sentences will run concurrently. Hence the prisoner will get 7 years only less the time spent in custody – 4 years and 12 days.
  2. Since the prisoner’s PSR was not favourable, coupled with the fact that a strong message must be sent to teachers who sexually abuse their pupils and students, that they will lose their liberty and means of livelihood for themselves and their loved ones. None of the resultant sentence will be suspended.

ORDERS


  1. The prisoner is sentenced as follows:

(i) For Count One – 7 years imprisonment

(ii) For Count Two – 7 years imprisonment

(iii) The sentences shall run concurrently hence the prisoner shall serve 7 years less the period spent in pre-trial/sentence detention of 4 years and 12 days.

(iv) None of the resultant sentence will be suspended.

(v) The prisoner shall serve his sentence at Giligili Correctional Institution.


38. The prisoner has the right to appeal against both his conviction and sentence within 40 days.


Ordered accordingly.
________________________________________________________________The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner


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