N9204

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 233 OF 2021

THE STATE

V

MATHEW POIENOU

Kokopo:  Tusais AJ
2021:  4th & 13th August, 22nd September

CRIMINAL LAW – Guilty plea – Sentence – Persistent sexual abuse of biological daughter – Started sexually touching her from age 5 years – Full sexual intercourse started at age 12 – Victim fell pregnant at age 14 years – Pattern of abuse over 9 years – Relevant considerations to take into account when determining appropriate penalty – Offender with no prior convictions – prisoner aged 54 – Substantial age difference between prisoner and victim – Serious breach of trust situation – Very serious aggravating factors –A punitive and deterrent sentence called for – Sentence of 18 years imprisonment imposed.

Cases Cited:

Supreme Court Reference No. 1 of 1984 [1984] PNGLR 418
Avia Aihi vs The State (No. 3) [1982] PNGLR 92
 Goli Golu v The State (1979) PNGLR 653
Stanley Sabiu v The State (2007) SC866
The State v Eremas Kepas (2007) N3192
The State v. Danny Tutuvo (2011) N4400
State v Steven Siname (2009) N3908
State v Penias Mokei (No. 2) (2004) N2635
State v John Tauno: CR No. 975 of 2015

Counsel:

Mr Tugah, for the State
Ms Pulapula, for the Defendant

DECISION

22nd September, 2021

1.	TUSAIS AJ:  INTRODUCTION:  The prisoner pleaded guilty to one count of persistent sexual abuse contrary to section 229D(1) and (6) of the Criminal Code Act. This is the court’s decision on sentence.
 
FACTS 

2.	The prisoner is the father of the complainant G.P, his second born daughter.  The family including his wife and another daughter lived for many years at the National Agriculture Research Institute (NARI) near Kerevat in East New Britain Province.  The prisoner was employed there as a senior economic scientist.

3.	Sexual abuse of the complainant began when she was just 5 years old.  It started off with sexual touching until 2017 when she was 12 years old when he began actual penile penetration of the child’s vagina.  The sex acts occurred when her mother, a midwife was working nightshift in hospital and also during occasions when the mother lived away from the house during job training courses away from Kerevat.

4.	The child was sexually penetrated by the prisoner on several occasions in 2017 and the following years of 2018 and 2019.  In September 2019, the child became pregnant.  He continued to have sex with her on three occasions while she was pregnant before leaving the province on duty travel.  In 2020, the child’s teachers found out that she was 8 months pregnant, and she had to leave school.  She gave birth to a son in June 2020.

5.	The State charged the accused for the offence of Persistent Sexual Abuse of a Child pursuant to s. 229D(1) and (6) of the Criminal Code. Within that charge, the State alleged three occasions of sexual penetration of a child under 16 years old with the aggravating circumstance of a breach of trust, authority or dependency under s. 229A(1) and (3) of the Criminal Code (though there were more than three occasions of sexual abuse only three is specified in the indictment).

ISSUE

6.	The issue is for the court to decide what sentence to impose. 

THE LAW

7.	SECTION 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.

(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.”

8.	The prescribed maximum sentence for the crime of Persistent Sexual Abuse of a Child to s. 229D(1) and (6) of the Criminal Code, is life.  This sentence is not mandatory.  Maximum sentence for any offence is usually reserved for those crimes described as the worst of its kind.  The Supreme Court in the cases Avia Aihi vs the State (No. 3) [1982] PNGLR 92, Goli Golu v The State (1979) PNGLR 653, restate this principle of law.  In Supreme Court Reference No. 1 of 1984 [1984] PNGLR 418, Kidu CJ said that …  “It is not a rule of law that the maximum sentence for an offence should be reserved for the worst case, but a practice which has been accepted through the exercise of common sense in order to do justice.”

9.	Does this particular case fit into the category of worst type case?  To decide that I must weigh up both mitigating and aggravating factors.

PERSONAL PARTICULARS

10.	The offender is now aged 54 years.  He comes from Lundret village in Lelemadih Bubichupeu LLG of Manus Province.  He is married with four children, two daughters born to him and his wife and two adopted children, a girl and a boy.  He is a member of the United Church and his pastor at NARI, Reverend Mesulam Teko spoke highly of him as a member who actively contributed to the building and maintenance of the church facilities.  However, the pastor lamented the fact that he was not as committed spiritually.  This the pastor attributed to his frequent travel for work purposes.  The offender is a highly educated man holding a master’s degree in Agricultural Science obtained from the prestigious University of Queensland.  At the time of offending, he was a senior scientist with NARI and in 2020 had clocked up 20 years in that organization.  His colleagues described him as a workaholic who often sacrificed his off time including public holidays and weekends in his single-minded pursuit of completing tasks at work.  There is little doubt that he was a diligent worker and an asset to NARI and the PNG public service.  He has no previous convictions. 

PRE-SENTENCE REPORT 

11.	I have read the Pre-Sentence Report and the Means Assessment Report and note the contents.  It is a well written and very comprehensive report that contains the views of a wide spectrum of people including the victims, the accused church pastor, his work colleagues etc.  I have incorporated some of the writer’s findings into the personal antecedents of the offender stated above.  The court has been greatly assisted by it and I thank the writer Ms Dolorose Maita for it.  The writer recommends that the prisoner is a suitable candidate for probation. 

MITIGATING FACTORS

12.	I consider the following to be in favour of the prisoner.

a)	He pleaded guilty. This has relieved his daughter from giving evidence in court.  I give a lot of weight to this factor.  In my view, it is the most important factor that goes in his favour.

b)	He is a first-time offender.  He has never been in trouble with the law and has in fact led an exemplary and productive life.  It makes it all the more tragic that in his own home and away from public view he was engaging in such a wicked and despicable action of defiling his own blood daughter.

c)	He has expressed remorse.  Before the case came to court the prisoner arranged with CS to take him to NARI at Kerevat where in the presence of Officer in Charge of that institution, he expressed contrition and regret to his daughter and her mother and his family.  Later in court he said this in his allocutus.

“Being the eldest son in the family, I am the only breadwinner.  I have 2 brothers and 2 sisters they are not in formal employment. My father has passed away.  I am the only support of my mother who is 80 years.  I am sorry for what I have done.  We have made reconciliation.  I ask Court to have mercy on me.”

d)	Prisoner has paid K10,000 as compensation to his daughter.  The payment was made after this case was commenced in court.  Even though it may be belated, it is an important factor that must be taken into consideration as one that is in favour of the prisoner.  The court must not treat this as the prisoner trying to pay his way out of jail.  Instead, I accept that the offender is genuinely sorry and regrets his actions.  It follows on logically from the offender’s early admission to the police, his attempts at reconciliation with his family and now his plea of guilty in court.  I cannot completely ignore or brush it aside.

AGGRAVATING FACTORS

a)	Serious breach of an existing relationship of trust, authority and dependency between the victim and the prisoner.  This is a father daughter relationship where the bond between the two is usually a very strong one.

b)	The crime was committed over a very long period, 9 years.  During that time the victim was constantly subjected to sexual abuse.  It is difficult to imagine what that kind of experience is, but it is a good guess that it is akin to living in an unending nightmare.

c)	Sexual abuse was often accompanied by use of physical force and mental abuse.

d)	Big age gap between the prisoner and victim of 40 years.

e)	Victim fell pregnant at a very young age.  This has already had a drastic effect on her young life.  Her childhood innocence was stolen at a very young age when her own father introduced her to sex which is an adult activity.  She became a mother at the age of 15 years when she herself was still a child.  All children have a right to be carefree and to enjoy that short period in life without worry and stress.  They will face that for a long time afterwards when they grow up and become adults.  Offenders like the accused deprive children of this priceless, once in a lifetime experience when they commit such selfish, self-centred acts for their own gratification.

f)	Prisoner continued to have sex with the victim child after she got pregnant.  The last 3 occasions happened in May 2020, about 2 months before the victim gave birth.  The offender showed very little regard to his daughter while continuing to satisfy his own lust and perversion.

COMPARABLE CASES

13.	Both Counsel have referred to a number of cases which I have had regard to for the purposes of ascertaining a comparative type of sentence imposed by this Court for the offence of persistent sexual abuse.  I refer to the following.

(i)	The Supreme Court in Stanely Sabiu v The State (2007) SC866 held that, for sentencing purposes, the starting point in sexual penetration of victims under the age of 12 years is 15 years imprisonment.  The Supreme Court upheld an appeal by the appellant against a sentence of 17 years imposed on him after he pleaded guilty to sexually penetrating a child under the age of 12 years.  The Supreme Court held that:

“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 a particular case should be more or less than 15 years imprisonment.”

(ii)	The State v Eremas Kepas (2007) N3192.  The prisoner pleaded guilty to one count of persistent sexual abuse of a child under section 229D(1) and (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 said that had it not been for the prisoner’s age and poor medical condition, he would have received a sentence between 25 to 30 years imprisonment.  The Court sentenced the prisoner to 12 years imprisonment.

(iii)	The State v. Danny Tutuvo (2011) N4400.  The prisoner was charged under section 229D of the Criminal Code Act.  He was 55 years old at the time when he committed the offence.  The victim was 9 years old.  The prisoner was regarded as a grandfather to the victim and family.  The prisoner was found guilty of 4 instances of persistent sexual abuse of the victim.  The Court found that on two instances the prisoner used his fingers to penetrate the victim’s vagina.  And the Court found that on two other instances, he penetrated her vagina with his penis.  The prisoner infected the child with gonorrhea, a sexually transmitted disease and she became seriously ill. He was sentenced to 18 years imprisonment less the time he had spent in jail.

(iv)	In State v Kaminiel Okole (2006) N3052 the prisoner pleaded guilty to two counts of sexually penetrating his stepdaughter and one count of abuse of trust, authority and dependency.  The victim was aged 9 to 10 years old in 1996 when the prisoner started sexually abusing her. He continued abusing her until the year 2004 when she became pregnant.  Lenalia J sentenced the prisoner to 9, 8 and 5 years respectively.  The prisoner was ordered to serve 15 years imprisonment.

(v)	In State v Thomas Angup (2005) N2830 (Kokopo), the prisoner pleaded guilty to sexual touching of a child under 12 years in 1998, one count of sexual penetration of a child under 12 years in 1998, and 2 counts of sexual penetration of a child under 16 years in 2000 and 2003 respectively. There was serious breach of trust as the victim’s stepfather, victim’s education was cut short, victim fell pregnant and gave birth to a child, victim was too young to look after the child, and the abuse continued over a long period of time. The prisoner was sentenced by Justice Lay to 20 years imprisonment. 

(vi)	In State v Steven Siname (2009) N3908 the prisoner pleaded guilty to 3 counts of persistent sexual abuse of his biological sister who was under the age of 16 year.  He was an adult married man and lived in his own house with his family and would normally go to his parents’ house when they were not at home and sexually penetrated his 15-year-old sister.  He continued to have sex until she fell pregnant.  She gave birth but the child died.  Justice Lenalia sentenced the prisoner to 28 years imprisonment.

(vii)	In State v John Tauno: CR No. 975 of 2015, the prisoner pleaded guilty to one count of persistent sexual abuse of a 13-year-old girl.  The prisoner was married to the victim’s mother’s small sister. The prisoner would usually take the victim into his room in the night and sexually penetrate her.    Justice Toliken sentenced the prisoner to 17 years imprisonment.

14.	These cases show sentences ranging from a low of 12 years up to a high of 28 years imposed by Justice Lenalia here in Kokopo on a prisoner for persistent sexual abuse of his own sister.  The 15-year-old girl became pregnant, but the baby died at birth.    

15.	Defence lawyer submitted that prison term of 10 to 15 years be imposed less time in custody.

16.	State submitted that the offense is serious and is prevalent.  Deterrent sentence was called for.  Mr Tugah submitted that the maximum sentence of life be imposed.

17.	I find that the aggravating factors in this case outweigh the mitigating factors.  The offence is very serious and falls into the more serious category because of the pregnancy and birth of a child.

18.	In considering the appropriate penalty to impose in this case, I take into account the submissions made by both counsel on sentence, the prisoner’s statement in Allocutus and the Pre-Sentence Report compiled by Probation Officer. 

SENTENCE

19.	The punishment I hand down to you will be quite severe because this trouble is one that was committed against a child.  The child moreover was your own flesh and blood, born as your offspring.  She became pregnant from your persistent acts of sexual intercourse with her.  She eventually and inevitably fell pregnant when she was 14 years old and at age 15, she gave birth and became a mother.  Her childhood is gone.  She can never get it back.  You stole it from her.  All these factors put your case into the most serious category.  The State prosecutor actually asked this court to impose the maximum sentence which is life imprisonment.

20.	You are not an ordinary offender.  You are a very highly educated person with a master’s degree in Tropical Agriculture acquired from one of the best universities in Australia.  How then should I treat you or categorize you?  Should your education and professional background be considered as a factor that goes against you?  That is to say that “you should have known better”.  In my view, that approach would be an insult to other fathers out there who do not have your academic background but who faithfully and consistently discharge their God given duties as fathers.  The job description for being a father is the same whether you are a scientist or any other professional or just a simple illiterate man.  If you bring children into the world you are obliged to love them, you are obliged to look after them and you are obliged to protect them as best you can.  For daughters that is especially so because fathers have the added job of protecting them from sexual predators.  So, even though you have excelled in your professional job you failed miserably in your other very important job as a father when you yourself became a sexual predator against your own child.

21.	I have seriously considered imposing the maximum sentence of life on you but will not do so because you pleaded guilty and by doing so relieved your daughter from the further headache and stress of giving evidence about this very shameful episode in her life.  You did the right thing.  I also give you credit for doing your best in trying to reconcile with your family.  You went so far as paying a large sum in compensation.  Other cases such as yours have attracted sentences between 12 years to 28 years. Because you made your daughter pregnant and persisted in having intercourse with her while she was pregnant, I will give you a sentence in the middle of that range.  Although the probation report recommended that you are a good candidate for probation, I am of the view that your trouble is far too serious for release on probation.  Suspension of sentence is also not warranted. 

ORDERS

22.    You are sentenced to:

1.	18 years IHL 

2.	1 year 4 months is deducted for time spent awaiting trial

3.	To serve remaining balance of 16 years and 8 months IHL.

Sentenced accordingly.
________________________________________________________________
Office of the Public Prosecutor:  Lawyers for the State	
Office of the Public Solicitor: Lawyers for the Offender