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State v Tobata [2021] PGNC 665; N9969 (19 April 2021)

N9969

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 138 & 139 OF 2020

THE STATE

V

FIDELIS GEORGE TOBATA

Kerevat: Suelip AJ
2021: 12^th & 19^th April

CRIMINAL LAW – sentence – trial – guilty – sexual abuse of biological daughter s. 229A(1)(3) Criminal Code – 14-year-old child – aggravating factors outweigh mitigating factors – victim and mother do not want compensation – victim and mother want longer custody – remorse after trial and conviction – custody term deducted.

Cases Cited

Goli Golu v. State [1979] PNGLR 653
Stanley Sabiu v. State (2007) SC866
State v. David Peter [2017] N6672
State v. Katu Tapin [2017] N6626
State v. Henry Panut [2019] N7787
State v. Vincent Fong [2016] N6418
State v. Bire Bonnie (2018) N7301
Peter Charlie v. State (2015) SC1482

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE

19^th April, 2021

1. SUELIP AJ: On 18 November 2020, the prisoner was found guilty after trial on two counts of sexual penetration pursuant to section 229A(1) and (3) of the Criminal Code, as amended. It was found that he committed the offence on 18 May 2019 at Vunakalkalulu village, Gazelle District, East New Britain Province.

2. This is my decision on sentence.

3. The facts are these. On 18 May 2019 at around 10:30am, the prisoner was with the complainant, Winifred Inamete at his house at Vunakalkalulu village, Gazelle District, East New Britain Province. The complainant is his biological daughter, and she was 14 years old at that time. On that date, time, and place, he got home after getting intoxicated. He then told the complainant to go inside the room and remove the mattresses. When the complainant went inside to sweep, he followed her inside and locked the door. He then ordered the complainant to remove her clothes and he sexually penetrated her vagina with his penis. After that, he licked the complainant’s private part, and then slept on top of her and sexually penetrated her vagina with his penis the second time. The accused then sat on a chair and fell asleep. That was when the complainant opened the door and ran out. She later reported the incident to her mother, and they went and laid a complaint with the police. Thereafter, they took the complainant to the hospital for medical examination. The actions of the accused contravened section 229A (1)(3) of the Criminal Code and charged him for two counts of sexual penetration.

4. The offence of sexual penetration with a child under 16 years under Section 229A(1) & (3) of the Criminal Code provide as follows:

(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 Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

(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.

5. The penalty the accused can face is up to 25 years of imprisonment. However, since there is an existing relationship of trust, authority or dependency between the prisoner and the victim at the time of the crime, he can face up to life imprisonment, subject to section 19 of the Criminal Code.

6. Personal particulars of the accused are these. The pre-sentence report prepared by Probation Officer, Mr Noel Awagalas shows the prisoner is 40 years old, but the Antecedent Report and his Record of Interview of 28 November 2019 indicates that he is 35 years old at the time he was charged. I will accept that he is now 37 years old. He comes from Vunakalkalulu village in the Gazelle District, and he is of the Catholic faith. He is married with 6 children. The report also says he comes from a family of 8 consisting of 4 males and 4 females, 5 of whom are employed including him until his arrest. Although he says his family relationship is good, none of them showed up to show their support towards him. They never visited him whilst he was in prison, and he says this is because they are not happy with what he did to his own daughter.

7. Further, the Antecedent Report shows he has no prior convictions.

8. During allocutus, he said he is very sorry for what he did to his daughter and apologized to her. He also apologized to his wife, his family, relatives, and everyone in Court. He begged for the Court’s mercy and said he wants to pay compensation to the victim and the family.

9. The only mitigating factor in his favour is that he is a first-time offender. He also wants to pay compensation and he has expressed some remorse.

10. Against him, the aggravating factors include the serious breaching of the father-daughter relationship and the betrayal of trust, authority and dependency. There is also the act of sexual penetration of a child under 16 years old with force not once but twice during the day at the family house, a place where safety should be guaranteed. Further, the victim is traumatized and will live with this scar for the rest of her life. The victim has also lost her virginity at a young age to her own father who is 21 years her senior.

10. It is trite law that the maximum penalty is reserved for the worse type of cases as held in Goli Golu v. State [1979] PNGLR 653.

11. I consider the following useful guidelines in child sexual penetration cases outlined in the Supreme Court case of Stanley Sabiu v. State (2007) SC866:

(a) Is there only a small age difference between the offender and the victim?

(b) Is the victim not far under the age of 16 years?

(c) Was there consent?

(d) Was there only one offender?

(e) Did the offender use a threatening weapon and not use aggravated physical violence?

(f) Did the offender cause physical injury and pass on a sexually transmitted disease to the victim?

(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?

(h) Was it an isolated incident?

(i) Did the offender give himself up after the incident?

(j) Did the offender cooperate with the police with their investigations?

(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?

(l) Has the offender caused further trouble to the victim or the victim’s family since the incident?

(m) Has the offender pleaded guilty?

(n) Has the offender genuinely expressed remorse?

(o) Is this his first offence?

(p) Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?

(q) Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

In that case, the sentence of 17 years was confirmed to be appropriate.

12. Counsel for the prisoner referred to 3 case authorities. These cases are State v. David Peter [2017] N6672, State v. Tapin [2017] N6626, and State v. Henry Panut [2019] N7787. The sentences in those cases were 8,12 and 18 years, respectively. The distinct differences with those cases and this one are that the relationship between each of the prisoners and their victims are not of father and daughter. Further, the prisoners in the first and second cases pleaded guilty to their charges under section 229A(1) and (3) of the Criminal Code unlike this case where a full trial was conducted. His counsel submitted that the starting point for his sentence should be 14 years and the most appropriate sentence to be imposed on him is 15 years.

13. Of the three case precedents referred to by the State, the case of State v. Vincent Fong (2016) N6418 is similar to this case. In that case, the prisoner who is the father of the victim, sexually abused his 16-year-old daughter. However, some distinct differences between that case and this one includes the victim in that case falling pregnant and the prisoner’s issuance of serious threats to his family members. The Court imposed a sentence of 15 years in hard labour with no reduction on prior custody term.

14. Another case nearly as similar to this one is the Duke of York case of State v. Bire Bonnie (2018) N7301 where the prisoner pleaded guilty to one count of sexual penetration of a child under the age of 16 years, contrary to section 229A(1) & (3) of the Criminal Code. The prisoner was the 12-year-old victim’s stepfather. The Court sentenced the prisoner to 17 years in hard labour minus time already spent in custody.

15. Further, in Peter Charlie v. State (2015) SC1482, the Supreme Court presided by late Justice Kirriwom here in Kokopo, he dismissed the appeal against the conviction and sentence of 20 years for one count of sexual penetration of a female child aged 10 years old contrary to section 229A(1) and (3) of the Criminal Code. In this case, the prisoner is convicted on two counts of the same offence.

16. Also taken into consideration is the pre-sentence report which engages the views of the victim, the prisoner’s wife, and his local Catholic catechist. The victim, says the father has breached the relationship of trust, authority and dependency when he abused her. She said he forced her into having sex with him twice when he was drunk and aggressive. She says she will never forget this experience. She says she wants the father to be in prison for a longer period and she does not want compensation but that is within this Court’s discretion to decide whether compensation should be paid by his family.

17. His wife says there was change in his attitude when he started working at the Rabaul District Office. She said she knew he was having extra marital relationships and he would come home late, and he was aggressive. She says she will never forget what he did to their daughter, and he should get a tough punishment so he will not repeat the same bad deed in the future.

18. His local church catechist said the prisoner is a good person and a spiritual advisor. He says he was faithful in church and its activities, but alcohol has made him to do this unacceptable deed. He believes the prisoner’s family will not accept him back into the village. He says compensation can be ordered after he has served his sentence to restore peace between the parties.

19. Also, in the pre-sentence report, the prisoner admitted that he was drunk and assaulted his daughter after he heard she had a boyfriend. He said during the assault, his daughter’s laplap fell off and when he saw her naked, he was aroused and lost control. That was when he sexually penetrated her with force. His admission was after the trial where the victim had to relive her painful experience in his presence. His early denial of committing the crime is just beyond me.

20. Be as it may, this is not a worse type case to impose the maximum penalty but a lesser penalty will be considered.

21. The prisoner has shown some degree of remorse but in my view, it is not enough to show his sincerity in apologizing. He knew his daughter was a young girl but in his drunken and aroused state, he breached that trust, authority, and dependency when he sexually penetrated her with force. His primary role as a father was to protect her but instead, he took advantage of her vulnerability and abused her, sexually. He broke the law and committed a crime against his own blood. The prisoner is 35 years old, and his daughter was only 14 years old at the time the offence was committed. There is a huge age disparity of 21 years. This type of offence is prevalent, especially here in the East New Britain Province, and the prisoner must face the consequences of his criminal actions.

22. I am not mindful to consider any suspension of sentence as I am of the view that he must serve a deterrent sentence. This is to prevent him from committing a similar offence in the future and because this offence is prevalent in this province, a tougher penalty must be imposed.

23. Essentially, the aggravating factors outweigh the mitigating factors by a long shot. I am therefore satisfied that this case warrants the fixing of his sentence at 20 years minus his term in custody of 1 year and 5 months. I will not order any payment of compensation for reasons that are threefold. Firstly, the victim and her mother do not want compensation and secondly, the prisoner’s family have also not shown any support for him since his arrest. Finally, he does not have the means to pay compensation as shown in the Means Assessment Report. More importantly, I am of the view that no amount of money or remorse can undo this wrong or repair the relationship between him and his family, especially with his daughter.

24. Having considered all the above, I order as follows:

(i) He is sentenced to 20 years imprisonment in hard labour.

(ii) His pre-custody term of 1 year and 5 months is deducted.

(iii) He will serve 18 years and 7 months in prison at Kerevat Correctional Institution.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner