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Independent State of Papua New Guinea v Lari (No 2) [2023] PGNC 278; N10373 (30 June 2023)

N10373

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 7 OF 2022

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:

LEONARD LARI

(NO.2)

-Accused-

Waigani: Tamade AJ

2023: 29^th May; 30^th June

CRIMINAL LAW –sentencing- persistent sexual abuse of a child – section 229D of the Criminal Code- step father started sexually abusing daughter at the tender age of 6 –use of a kitchen knife- 5 years of sexual abuse-high culpability of persistent sexual abuse which heightened the victim’s fear of repeated sexual abuse- aggravating factors trump the mitigating factors of first time offender and remorse

Cases Cited:
Papua New Guinean Cases

Goli Golu v The State [1979] PNGLR 653
Simbe v The State [1994] PNGLR 38
State v Apusa [1988-89] PNGLR 170
State v Mokei (No 2) [2004] PGNC 129; N2635
The State v Biason Benson Samson (2005) N2799
State v Pu-uh [2005] PGNC 172; N2949
State v Pora [2019] PGNC 14; N7672
State v John Kariva (No.2) (2013) N9040
State v Nanuk (No.2) (2022) N9537
State v Makai [2010] PGNC 107; N3914
Wartovo v State [2019] PGSC 11; SC1775
Sabiu v State [2007] PGSC 24; SC866

Overseas Cases

DPP v D D J [2009] VSCA 115

Legislation

Criminal Code Act

Counsels:

Mr Dale Digori, for State
Ms Tymillah Yapao, for the Accused

30^th June 2023

1. TAMADE AJ: On 14 April 2023, the prisoner was found guilty of persistent sexual abuse of a child under the age of 16 years and convicted in contravention of section 229D of the Criminal Code for the persistent sexual abuse of his stepdaughter.
   

The Charge

2. Section 229D of the Criminal Code is in the following term:
   

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.

(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and
(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child;and
(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

(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.

Facts

3. On an unspecified date in 2016 when the child was 6 years old, the Accused touched with his fingers the vagina of the child. On another unspecified date in 2016, the accused for sexual purposes touched with his hands the buttocks of the child also aged 6 years old then. In the same year, the Accused for sexual purposes touched the child’s sexual part namely the breasts of the child. In 2019, the Accused sexually penetrated the child by inserting his fingers into the child’s vagina. Also in 2019, the Accused also sexually penetrated the child’s anus by inserting his fingers into her anus. It was until 18 August 2020 that the Accused was caught when he touched with his hands a sexual part namely the breasts of the child in their home and his wife noticed and reported him. It was then that the child was taken to the hospital and medical examination proved that the child is pre-menarche (not yet seen her period) with an absent hymen and multiple scaring of the anus and vulva showing repetitive sexual assault with vaginal and anal penetration.
   
4. At the trial of the matter, it was evident that the offending may also have happened on other occasions between the period 2016 until 18 August 2020, a period of 5 years as persistent sexual abuse. The offending started when the child was aged 6 years old and continued until the child was ten years old.
   

Particulars of Prisoner

5. The prisoner is aged 39 years old from Miaru Village in the Gulf Province. He is married with two natural children of his own and a stepdaughter who is the victim in this case. The child victim is his wife’s daughter from a previous relationship to a white man. The Prisoner has no prior convictions.
   

Remorse

6. In the allocutus, the prisoner expressed remorse for what he had done and extended his apology to the victim, his stepdaughter and also to his wife, the mother of the victim. He stated in Court that because of what he had done, his wife had taken the victim and left his two other natural children with his family which has caused a lot of hardship for his family as his parents are getting old and therefore he is asking the Court to be lenient on him so he can get out of jail and take care of his children. The prisoner has been incarcerated since his arrest and detention on 21 August 2020.
   

Case Considerations

7. Counsels have drawn my attention to the case of Goli Golu v The State [1979] PGSC 9; [1979] PNGLR 653 (14 December 1979), that the punishment to an offence must be proportionate to the gravity of the offence and that the maximum sentence should be left for the worst type of offences. Each case therefore should be determined on its own set of facts: Simbe v The State [1994] PGSC 18; [1994] PNGLR 38 (2 March 1994).
   
8. In cases where there is a relationship of trust as in a teacher and student, doctor and patient and parent or guardian and child, and or stepfather and daughter, the offence is aggravated because of the close proximity of the relationship of one of trust, authority and dependency. In State v Apusa [1988-89] PNGLR 170, the Court held that where the offender is of a young age with the victim, the sentence should be at a lower ranger however where there exists a relationship of trust and dependency as in step father and daughter, teacher and student, doctor and patient etc, the sentence should be at an upper range as the close nature of the relationship of trust, authority and dependency is an aggravating factor.
   
9. In State v Mokei (No 2) [2004] PGNC 129; N2635 (26 August 2004), Justice Cannings considered a set of questions to answer when the Court is tasked to determine an appropriate sentence for sexual offence against children. His Honour was of the view that where there is persistent sexual abuse of a child by a family member and where there is a relationship of trust, authority and dependency as in the offence under section 229E of the Criminal Code, the closer the relationship of trust when that trust is broken or betrayed, the more serious should be the punishment. Justice Cannings has adopted the set of questions in State v Mokei^[1] to The State v Biason Benson Samson (2005) N2799 and also adopted by the Court by Lay J (as he then was) in State v Pu-uh [2005] PGNC 172; N2949 (24 November 2005). These questions are a guideline for determining an appropriate sentence in sexual offences involving children. I adopt these guideline questions with answers specific to this case:
   
   1. Is there only a small age difference between the offender and the victim? No. There is a big age difference. The victim was 6 years old at the time of the first offending and the Prisoner was 32 years old. There is an age difference of 26 years.
      
   2. Is the victim not far under the age of 16 years? The victim was 6 years old at the time of the first offending, a tender age way below 16.
      
   3. Was there consent? No. She was way below any age of consent.
      
   4. Was there only one offender? Yes.
      
   5. Did the offender not use a threatening weapon and not use aggravated physical violence? Yes, the offender used a kitchen knife to threaten the victim.
      
   6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim? Yes and no. No STD was passed on. Medical report proves that there was an absent hymen and multiple scaring of the anus and vulva which is consistent with repeated sexual assault.
      
   7. Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one? There is a relationship of trust, dependency and authority. The offender is the step father of the victim.
      
   8. Was it an isolated incident? No, it was persistent over time beginning when the child was 6 years old until she was 10 years old when the offender was reported and arrested. The persistent sexual abused lasted for 5 years.
      
   9. Did the offender give himself up after the incident? He was eventually arrested when he was caught by his wife.
      
   10. Did the offender cooperate with the police in their investigations? No, the offender denied the allegation and was charged.
       
   11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? No.
       
   12. Has the offender caused further trouble to the victim or the victim’s family since the incident? No. The Offender was charged, arrested and detained.
       
   13. Has the offender pleaded guilty? No. The offender denied the charge resulting in a trial which convicted the offender. The victim had to rehash her trauma during trial.
       
   14. Has the offender genuinely expressed remorse? The offender had expressed remorse however it was focused on his two natural children and his aged parents asking the Court to be lenient to him to go take care of his children. There was no focus specific to the victim and the damage caused to her.
       
   15. Is this his first offence? Yes.
       
   16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? No.
       
   17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? No. The Pre Sentence Report favours the offender to give him a non-custodial sentence that he is willing to create peace with his family. There is a letter of remorse signed by the Offender that due to his two young children and his aging parents, he should be given leniency.
       

Increased culpability of the offender

10. This brings me to the culpability of the accused in repeated sexual abuses of children. Here is a step father who persistently sexually abused his step daughter beginning at the age of six until he was reported when the victim was about 10 years of age. He had for about 5 years created an environment of duress, stress and fear for the victim, threatening her on occasions with a knife and subjecting her to his sexual pleasure whenever he so desires. The victim had to live through this psychological trauma for this length of time of about 5 years. I am assisted by an Australian case of DPP v D D J [2009] VSCA 115 (28 May 2009) of where there is prolongation and repetition of sexual offending, the offender's culpability is greater in relation to the later offences, given his awareness of the victim's distress and fear of further sexual abuse. In that case, the offender was a 32 year old who had a sexual relationship with a 13 year old over a 5 month period. At paragraph 32 in DPP v D D J, the Victorian Court of Appeal said this with emphasis underlined:
    

“32. As Neave JA pointed out in the hearing, it is the persistence of the sexual relationship over time which is at the heart of the offence. The repetition of the sexual abuse is likely to heighten the victim’s fear that the abuse will occur again, and to increase the damage which he or she suffers. Equally, the repetition is likely to make the offender progressively more aware of the effect the abuse is having on the victim. In each of these respects, culpability is heightened. On the other hand, it would be quite wrong to conclude that the offender’s culpability varies in direct proportion to the length of the relationship. Other factors may be of greater significance, such as the nature of the pre-existing relationship between offender and victim, and the nature and intensity of the sexual abuse which takes place.”

11. The pertinent point in the Australian case which I adopt is where there is persistency in the sexual abuse, it is an aggravating factor where the offender’s culpability is increased where he is fully aware that he is subjecting a child to the persistent sexual pleasure of himself at the cost of a child’s vulnerability, trauma and distress over time and the child’s fear that the sexual abuse will occur again. The offender is acutely aware of the child’s distress and fear that his sexual gratification will be fulfilled every time as the child being vulnerable and weak will succumb to his approaches. Persistent sexual offenders and especially of children are a threat to society, to community. These are acts that are abhorrent as this offender has cultivated such behaviours in the safe spaces of his home to his unsuspecting wife. Every time he gets sexual gratification from the child, the child’s fear and distress is heightened, the fear of getting caught by her mother, the fear of the offender using force and or the threat of the weapon and that the sexual abuse will happen again. Persistent sexual abuse of a child by a parent in a position of trust, dependency and authority should attract a severe punishment to send a message that it is highly condemned by society as repugnant.
    

Comparable Cases

12. In State v Pora [2019] PGNC 14; N7672 (14 February 2019), the victim was 13 years old when the offending started. The offender is the biological father of the victim. The offending happened on 9 different occasions over a period of 2 years. Similar to this case, the offender committed the offence within his home and was caught by his wife. The Court in that case sentenced the offender to 30 years in hard labour. Chief Justice Sir Gibuma Gibs Salika said these in sentencing:

“54.You have ruined the life of a very young girl, your own daughter. She will now live with the shame and stigma of being abused by her very own father. You have breached this very important bond between yourself and your daughter. A very special bond unlike any other. A very sacred bond.

55. Apart from a Lawyer/Client relationship, a Doctor/Patient relationship or Pastor/Congregation member relationship, with respect, this Court considers the father/daughter relationship to be a very special and sacred relationship. A very special relationship and bond orchestrated by God himself and nature, unparalleled and unmatched. Such is the relationship that exists between a father and a daughter. A loving and a caring relationship with respect, trust, honest and fatherly love.

56. I agree with the Prosecution submissions that this matter falls within the higher ranges of the sentencing scope and falls short of the maximum penalty category given the time span of sexual abuse being two years.

57. The sentence that this Court gives must sound a warning to likeminded individuals and deter others from committing similar offences and denounce what is becoming a very prevalent offence in society.”

13. In State v John Kariva (No.2) (2013) N9040, the offender was the biological father of the victim who persistently sexually abused his first born daughter who was 11 years old when the sexual abuse started until his daughter gave birth to his child. The offending involved threats, violence and use of weapon to threaten the victim into submission. The prisoner was sentenced to 23 years of life imprisonment.
    
14. In State v Nanuk (No.2) (2022) N9537, the offender was the biological father of the victim. The offending started when the father brought the victim over to Port Moresby to reside with him and his family when the victim was 13 years old. The age difference between the offender and the victim was 38 years and the victim had to relive the trauma at the trial of the matter. The Court sentenced the offender to 22 years in hard labour.
    
15. In State v Makai [2010] PGNC 107; N3914 (25 January 2010), the offender was 30 years old when he persistently sexually penetrated his sister-in-law aged 9 or 10 years old on three occasions over a 19-month period. The offender was sentenced to 20 years in prison. The Court said that 20 years was the starting point for persistent sexual abuse of a child.
    
16. In Wartovo v State [2019] PGSC 11; SC1775 (1 March 2019), this was a Supreme Court review over the decision of the National Court which sentenced the offender to 22 years in hard labour for the persistent sexual abuse of his 13-year old adopted daughter. The Supreme Court refused the review and found that the National Court made no error in sentencing.
    
17. In Sabiu v State [2007] PGSC 24; SC866 (27 June 2007), this was a Supreme Court review over the sentencing of an offender for sexual penetration of a child contrary to section 229(A). The victim was a male child of 6 years of age, related to the offender as his nephew. The offender had pleaded guilty, had expressed remorse in court and had paid compensation to restore the family bonds in the community. The National Court considered that the child was only 6 years old and amongst other aggravating factors, noted the prevalence of these types of sexual offences in society. The sentence of 17 years was affirmed by the Supreme Court.
    

Submissions by the Prosecution

18. The State has put forth the following aggravating factors in this case apart from the mitigating factor that the offender is a first time offender and expressed remorse in allocutus that the Court should impose a higher range of sentence based on the following:
    
    1. There is an age gap of about 26 years between the offender who was 32 at the time of first offending and the child who was 6 years old.
    2. There exists a relationship of trust, authority and dependency between the offender and the child as a step father and daughter relationship.
    100. The offending was persistent and occurred over a period of time.
    4. The offender used a kitchen knife to threaten the victim in order to prevent her from reporting him.
    5. The effect of the re-traumatization of the trial on the victim in that the victim had to rehash the trauma at trial.
    6. The emotional and psychological impact on the victim and the stigma that the child will live with for the rest of her life.
    7. There is no reparation of compensation by the offender and or an attempt to make peace with the victim and her mother or her family.
    8. The growing prevalence of such sexual offences against children in our society.
       
19. The State therefore submits a custodial sentence of 20 to 30 years be imposed in this case.
    

Defence Submission on Sentence

20. The Defence seem to consider that this is not a worst-case offence that the offender acted alone and therefore the Defence sought that the Court utilise section 19 of the Criminal Code to suspend part of the sentence. There is no further argument to sustain these submissions apart from relying on the Pre-Sentence Report that supports this proposition which in my view is unfounded on any legitimate ground.
    

Sentence by the Court

21. Having considered the peculiar nature of this case involving persistent sexual abuse of a child at the tender age of 6 years old in the safe space of a family home by the use of a kitchen knife to threaten the victim whom the offender is in a position of trust, authority and dependency, from all the comparative cases submitted by counsels, the victims were 9 or above 12 years of age. The victim here is at a tender age of 6 years old when the offending first happened. The offending continued for a period of 3 years until the child was about 9 or ten when the offender was reported to the police by his wife. As there is penetration involved, the sentence should involve life imprisonment as per section 229(D)(6).
    
22. I find that the aggravating factors in this case trump the mitigating factors of the Prisoner being a first-time offender and his remorse. I find that the Prisoner’s remorse expressed regret and that he will change his ways so he can get out of prison and take care of his two biological children because of his aging parents. There is no focus on the victim by the offender, nor any mention of how the offender has irreparably damaged his step daughter both physically and psychologically. The offender has Character references from the Sioni Kami United Church and the Office of the Acting Chaplain from Bomana Correctional Services with a Letter of Remorse to the Court however I contrast this to the overwhelming aggravating factors in this case.
    
23. The aggravating factors in this case which puts it in the serious category are as follows:
    
    1. The age of the victim at the time of the first offending by the offender was a tender age of 6 years old as a child.
       
    2. The sexual abuse was persistent.
       
    100. The sexual abuse was persistent over a period of 5 years.
         
    4. The offender was 32 years of age at the time of the first offending. There was an age difference of about 26 years.
       
    5. The offence included a weapon, the offender used a kitchen knife to threaten and succumb the victim to his sexual gratification within the confines of his own home.
       
    6. The offender is in a position of trust, authority and dependency as he is the step father of the child. The child looks to the offender as her father, provider, carer and nurturer.
       
    7. The culpability of the offender is increased as due to the persistency of the sexual abuse, the offender is aware of the vulnerability and weakness of the victim every time he gets his sexual gratification from the child as his persistency of sexual abuse heightens the fear and distress of the victim in being caught by her mother and in her mind in forming some guilt on her part and the fear of further sexual exploitation that the sexual abuse will happen again.
       
    8. As per the medical report, the child is pre-menarche (not yet seen her period) with an absent hymen and multiple scaring of the anus and vulva showing repetitive sexual assault with vaginal and anal penetration.
       
    9. The effect of the re-traumatization of the trial on the victim in that the victim had to rehash the trauma at trial when retelling the sexual abuse.
       
    10. The emotional and psychological impact on the victim and the stigma that the child will live with for the rest of her life.
        
    11. The growing prevalence of such sexual offences against children in our society.
        
24. In regard to compensation, I am of the firm view that compensation should play no part in the sentencing of persistent sexual offenders. Compensation may go as far as fixing relationships with the community however where an offence concerns the safety and protection of children as vulnerable members of our society, we owe it as a society to protect children in the first place prior to any offending, no compensation will restore such irreparable damage done to children physically, psychologically and emotionally.
    
25. I adopt the words of the Chief Justice in State v Pora in condemning the father who breached that sacred bond with his daughter. The persistent sexual abuse had taken about 5 years and I am minded to say that there were other occasions during that 5 years that the offending happened however the child was resigned to recall the exact dates due to her tender age as observed in the trial on verdict but she was able to vehemently stick to her story that her father had done those things to her during that time.
    
26. A serious and higher range of sentence for persistent sexual abuse of children by offenders in a position of trust, authority and dependency should send a message of deterrence that such offences are condemned by society. Section 6A of the Criminal Code defines the relationship of trust, authority and dependency and includes the relationship of a step farther and child.
    
27. Taking all these considerations into account, I therefore sentence the offender to 30 years in prison in hard labour. The prisoner has been incarcerated since 21 August 2020. A period of 2 years, 10 months and 5 days has already been served as pre-sentence period and therefore the Prisoner will serve 27 years, 1 month and 25 days.
    

Sentenced accordingly.

_______________________________________________________________

Office of the Public Prosecutor: Lawyers for the State

Office of the Public Solicitor: Lawyers for the Accused

^[1] Supra