[national court of justice]

the state

v

joe waine wangel (no 2)

waigani: lenalia j

21, 23 November; 9 December 2005

CRIMINAL LAW – Sexual offences – Sexual penetation and sexual touching – Aggravation – Penetration of minors under age victims – Sentence – Matters for considerations.

Facts

The accused was found guilty on five charges of sexual penetration of four different victims with one victim twice, and four additional counts of sexual touching contrary to ss.229A and 229B of the Criminal Code (Sexual Offences and Crimes Against Children) Act. All that remains is for the court to decide an appropriate penalty to be imposed on the accused.

Held

1.	There are relevant considerations under the Act which the court will highlight on particularly under the circumstances of the instant case where the ages of the four victims were under the age of 16 years.

2.	The prisoner is sentenced to three years imprisonment each for the offences of sexual penetration to be served consecutively upon each other making a total of 15 years, and for offences of sexual touching, the prisoner is sentenced to 1 year for each count making a total of 4 years. The court orders that the 4 years to be served concurrently upon the sentences for sexual penetration. Time spent in custody was deducted. 

Papua New Guinea cases cited

Mase v The State [1991] PNGLR 38.
Public Prosecutor v Terrence Kaveku [1977] PNGLR 110.
The State v Penias Mokei (2004) unreported N2635.
Tremellan v The Queen [1973] PNGLR 116.

Counsel
A Kupmain, for the state.
T Gene, for the accused.

9 December 2005

Lenalia j. The accussed was found guilty on five charges of sexual penetration of four different victims with one victim twice, and four additional counts of sexual touching contrary to Sections 229A and 229B of the Criminal Code (Sexual Offences and Crimes Against Children) Act. All that remains is for the court to decide an appropriate penalty to be imposed on the accused.

For purposes of sentencing the accused, there are relevant considerations under the Act which the court will highlight, particularly under the circumstances of the instant case where the ages of the four victims were under the age of 16 years. In fact two of those minors were at ages 6, one age 8 and the other one at age 9, at the time the offences were committed.

In a normal sexual penetration where a complainant is under the age of 16 years and above 12 years, an offender could be sentenced to the maximum penalty of a term not exceeding 25 years. The first aggravation is the age factor mentioned or referred to in subs(2) of s.229A of the Act. Where a child is under the age of 12 years, an offender may be sentenced to life imprisonment, but subject to s19 of the Criminal Code. The second aggravation under the Act is where the offence is committed when there was an existing relationship of trust, dependency and authority, the same punishment applies as for subs(2).

Then we see the same aggravating circumstances is Section 229B Subsections (4) and (5) of the Act. Those two provisions say:

"(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, an offender against Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years."

In his allocutus the accused said, though the court had found him guilty, he remains innocent of the charges and he had been made a scape goat and the victim of the new amendment law providing for sexual offences aganst children. He said he has his wife for sexual gratification and the allegations put against him were framed to put him up for what he never did.

I had the benefit of hearing both counsels. For and on behalf of the accused, Mr. Gene submitted that on sentence the court ought to take into account a number of factors. First that the accused is now 54 years of age. Obviously, evidence by both the State and the defence confirm that he is now 54 years and that any long term imposed cannot serve any good purpose as Papua New Guineans life expentancy is about the age of the accused. It was further submitted that, the court should take into account this is the first time for the accusd to be in court for these very serious allegations. That there was no aggravated violence caused to the victims as well as the offences were not connected to any persistent abuse and that there was not relationship of trust dependency and authority and finally that the court should impose cumulative sentences for sexual penetration and for sexual touching.

Mr. Kaputin replied to the above submission by stating that there were four different victims and sentences should be consecutive for reasons that they were separate victims as compared to a case committed in the course of committing another offence. Counsel however summed up by saying that the court must consider the totality principle on sentence.

On the principle of concurrent and consecutive sentences sometimes referred to as "the totality principle" requires that when there are a number of offences and a judge or magistrate considers a range of consecutive sentences, that is sentences having the effect of adding them up, a final review has to be made to make sure that, the total is not excessive: Public Prosecutor v Terrence Kaveku [1977] PNGLR 110.

The law developed by the Supreme Court from the above principle as stated in the case of Mase v The State [1991] PNGLR 88 is that, there are three factors to be considered by the sentencer. The first is the court must consider what would be the appropriate sentence for each offence charged. Secondly, after working out the appropriate sentences, consideration must be had to consider if sentences should be made concurrent or consecutive. After reaching a conclusion to the first and second leg of the totality principle, the third considerations is that the court must look at the total sentences to see if the total is just and appropriate. The Supreme Court in the case of Mase v The State (supra) at page 92 expressed reasons why straightforward additions of cumulative sentences may result in imposition of excessive penalties. The Court there said:

"This principle must be observed because a straightforward additions of sentences usually lead to a total sentence that is excessive in the whole circumstances"

Although Mr. Kupmain touched on the issue of the offences committed against each individual victim, he did not nor did Mr. Gene further addressed the court on the nature of this case where all four accused were abused at the same time in the same room. I accept the argument that there were four separate victims but the offences clearly arose from or out of closely related facts: Tremellan v The Queen [1973] PNGLR 116. The reason I say this is that the four victims were called in together and together at the same time were abused in front of the full view if each other.

Having said the above, where do the accused's cases fall. First I am bound to consider the weight of the serious nature of the offences and for the court to consider the aggravating factors I am required to consider under law in the sections charged. In relation to sexual penetration, an obvious aggravation is all the four victims were under the age of 12 years. The upshot of such aggravation is that the accused could be sentenced to life imprisonment. But the court has discretion to impose a term of years. Then for offences of sexual touching, because the four vicitims were under 12 years of age, the accused could be sentence to 12 years as the age factor is an aggravation in both sexual penetration and sexual touching.

Mr. Kupmain submitted further that there could be an element of what he called "de factor" breach of trust. Although that may be true, I reject that part of his submission for reasons that, the Act sets out specific provisos for breach of existing relationship of trust, authority and dependency, see s.229A(2) and (3) and 229B. (4) (5).

The Act define the phrase "relationship of trust, authority or dependency" in section 6A of the Act in the following terms:

"6A. Relationship of trust, authority or dependency.

(a)	When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(b)	A "relationship of trust, authority or dependency" includes but is not limited to, circumstances where –

the accused is a parent, step parent, adoptive parent or guardian of the complainant; or
the accused has care or custody of the complainant; or
the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or
the accused is a school teacher and the complainant is his pupil; or
the accused is a religious instructor to the complainant; or
the accused is a counselor or youth worker acting in his professional capacity; or
the accused is a health care professional an the complainant is his patient; or
the accused is a police or prison officer and the complainant is in his care or control"

What is clear is that the accused is an elderly person and what is expected of him is respect for younger generations. I agree with Mr. Gene that the effect of these traumatic experiences caused to the victims will have far reaching effect, meaning that it will take a long time for the victims to forget what the accused did to them and to some of them such experience will linger around for the rest of their lives.

Counsels cited a number of authorities to the court. Mr. Gene cited the case of The State v Penias Mokei (2004) N2635 where the National Court sentenced the accused to 15 years for similar offences of sexual penetration. There the Court commented on the effect of the new sexual abuse provisions under the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. In fact the repealed provisions dealing with sexual offences under the Code both penetrative and non-penetrative are sufficiently covered under the new amendment of Sections 229A-229V of the new amendement. It was about the time the Government was serious about the welfare of our children and it was timely for the legislature to consider tougher punishment for offenders who abuse children treating them as sex objects or slaves to sexual abuses in many forms. In The State v Penias Mokei (No.2) N2635 the court there considered some relevant factors to be taken into account on sentence. I will mention some of those factors in passing.

In the circumstances of the accused's case, it was submitted on his behalf that he is a first offender and he is now age 54 years and that the court must take this into consideration as any long term of imprisonment will not benefit the accused since he is now old. Offences under ss 229A and 229B are aggravated by the fact that when the accused committed the offences, the four victims were all under the age of 12 years. This effectively means that for the offences of sexual penetration, the accused could be sentenced to life imprisonment and for sexual touching he could be sentenced to 12 years, (see sections 229A (2) and 229B (4) of the Criminal Code (Sexual Offences and Crimes Against Children) Act).

I agree with Mr. Gene that, there was not existing relationship of trust, authority or dependency. I do not however agree with him that, the pattern was not part of any persistent behaviour on the part of accused as I found from the evidence of Jaclyn Lus that it was the second time around the accused did this bad thing to her. If it could not be a persistent abuse, then what can it be when in fact, the first victim was abused twice?

Mr. Kupmain submitted that the accused committed a string of offences against the four different victims and sentences imposed should reflect the fact that the accused was dealing with individual victims and therefore consecutive sentences ought to be imposed bearing in mind the totality principle.

I have alluded to this fact already earlier on and the court must now tell the accused that the offences he committed are very serious. You did not show any remorse to the victims, their parents and relatives and not even to the court.

All the four victims whom the accused sexually abused had to come to court to testify and publicly tell the court about your sexual behaviour harassment to each one of them. The court found that for all the four vicitims, it was really hard for them to mention or describe sexual organs as they are all very young and in their evidence they would refer to the accused's penis as "bolls". That was an indication as the court inferred that the young girls are too young to engage in any sexual conduct of any sort.

As I find, there are a number of factors which the court should mention in your favour. First, you are a first offender. It means you have not committed any offences in your life time of 54 years until you were confronted with the temptation to allure these young girls to your house to achieve your evil motives.

The second factor is that the victims did not suffer any serious injuries. I have also considered the fact that you are now a 54 years old man which is just about the average Papua New Guineans' life expectancy.

However against you are aggravating factors such as the victims with whom you committed these offences are very young. The government was and is aware that sexual abuse of all forms are present in each community we have in Papua New Guinea. The accused committed these offences under circumstances of persistent sexual abuse. For Jaclyn Lus it was her second go on the occasion when she was together with Kati Pependo, Aglie Lus and Angela Irai.

I have carefully considered the acused statement in allocutus. I have also considered the lawyers' submissions on mitigation and aggravation and taking into account the serious nature of the offences you committed, the accused is sentenced in the following manner:

The prisoner is sentenced to three years imprisonment each for the offences of sexual penetration to be served consecutively upon each other making a total of 15 years, and for offences of sexual touching, the prisoner is sentenced to 1 year for each count making a total of 4 years, but the court order that the 4 years be served concurrently upon the sentence for sexual penetration.

The time spent is custody shall be deducted. The court will suspend 4 years from that sentence and the prisoner shall serve the balance.

Lawyer for the State: Public Prosecutor.
Lawyer for accused: Paul Paraka Lawyers.