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State v Apusa [1989] PGNC 122; [1988-89] PNGLR 170; N733 (22 May 1989)

N733

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

SOTTIE APUSA

Goroka
Brunton AJ
19 May 1989
22 May 1989

CRIMINAL LAW - Unlawful carnal knowledge of girl under 16 years - Sentencing principles - Appropriate tariffs - Criminal Code (Ch No 262), s 216(a).

CRIMINAL LAW - Sentence - Unlawful carnal knowledge of girl under 16 years - Accused step-father of 15-year-old victim - Six offences over four months - Plea of guilty - Sentence of three years two months - Criminal Code (Ch No 262), s 216(a).

The following guidelines may be taken as appropriate to sentencing for the offence of unlawful carnal knowledge of a girl under 16 years contrary to s 216(a) of the Criminal Code (Ch No 262) for which the maximum prescribed penalty is five years imprisonment:

(1) a lower range from discharge up to 20 months, for cases where the accused and the victim are of similar age, where the accused is a young offender and the victim between 14 and 16 years and where the offender is disabled, or physically or mentally handicapped and the victim a consenting party;

(2) a middle range from 20 months to 40 months, for cases where the accused is a mature man and there are no circumstances of aggravation;

(3) an upper range from 40 months to the maximum of five years, for cases where there are circumstances of aggravation, such as, cases where there is a relationship of trust and dependency between the accused and the victim, for example, teacher and pupil, medical carer and patient, and step-father/uncle relationships.

Held

On a plea of guilty to six charges of unlawful carnal knowledge of a girl under 16 years contrary to s 216(a) of the Criminal Code (Ch No 262), where the accused was the step-father of his 15-year-old victim and the offences occurred over a four-month period, sentences of three years and two months (38 months), to be served concurrently, should be imposed.

Cases Cited

John Aubuku v The State [1987] PNGLR 267.
R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985.
Sangumu Wauta v The State [1978] PNGLR 326.

Sentence

An accused pleaded guilty to six counts of unlawful carnal knowledge of a girl under 16 years contrary to s 216(a) of the Criminal Code (Ch No 262) and the following judgment was delivered on sentence.

Counsel

C Ashton-Lewis, for the State.
K Kot, for the accused.
Cur adv vult

22 May 1989

BRUNTON AJ:

THE CHARGES

The prisoner pleaded guilty to six counts of unlawful carnal knowledge, offences against s 216(a) of the Criminal Code (Ch No 262).

THE FACTS

The victim was the thirteen-year-old step-daughter of the prisoner. The prisoner admitted that within a four-month period he had sexual intercourse with her on six occasions. Each time the intercourse happened, the prisoner was alone in the house with the victim. Although there was evidence on the depositions that threats had been made by the prisoner in order to get his way, the State Prosecutor, Mrs Ashton-Lewis, who had interviewed all State witnesses, submitted that the acts of intercourse were consensual. From this I inferred that the State view of the evidence was not such that it could properly indict for the more serious charge of rape. In his statement to the District Court, the prisoner asserted that the victim had asked him for K2, and had taken the initiative in the illicit relationship. Nowadays this is a common enough allegation in these cases, and is always difficult to assess. It was not repeated before me on the allocutus, where the prisoner showed remorse, and apologised for what he had done.

THE PRISONER

The prisoner is about 37 years old, married with three children. He has one married daughter aged 20, an unmarried son aged 18, and his step-daughter, the victim, who is now aged 15. She has left her adopted family, and has returned to the custody of her natural mother. The prisoner has no formal education and is a subsistence farmer. I believe he is now genuinely sorry for what he has done. He has no prior convictions.

THE SENTENCE

The prisoner is indeed fortunate that he is charged with the unlawful carnal knowledge of a girl under the age of 16 (s 216(a) of the Criminal Code) which is an offence carrying a maximum penalty of five years, rather than with incest, an offence under s 223 of the Criminal Code, which carries a maximum penalty of life imprisonment. This is so only because the Criminal Code in Papua New Guinea has remained unreformed since the last century, and creates an offence for a man to have sexual intercourse with his daughter and other lineal descendants. That phrase has been held not to extend to customarily adopted daughters: see Sangumu Wauta v The State [1978] PNGLR 326. Nevertheless, a man who has sexual intercourse with his adopted daughter commits a grievous moral and social offence against the girl because subjectively the girl, and objectively the community, sees the man as her father. Even in cases where no violence or coercion is used, the girl may be left with permanent psychological scarring, in a situation, as is so often the case in Papua New Guinea, where there is no professional support for incest victims.

Unlawful carnal knowledge is an offence in which the violence or coercion necessary in rape is absent. Unlawful carnal knowledge is in the nature of a strict liability offence and providing a defendant cannot prove on reasonable grounds he believed the victim was over 16 years, then any act of consensual intercourse constitutes the offence.

Acts of sexual intercourse under s 216 between "young lovers", that is where both parties are of a similar age but under 16 years old, would be in the lower part of the sentencing range. Also, in the lower portion of the permissible range would be those offences committed by young men on girls who are between 14 and 16 years old. When dealing with young offenders the discretions under s 19(1)(f) of the Criminal Code and the Probation Act (Ch No 381) are always relevant, and there may be cases where it is not appropriate to proceed to conviction, but simply to discharge. This is so, in my view, where young participants are involved in those societies of Papua New Guinea in which heavy courting is the norm, and the custom allows a certain amount of sexual licence amongst youngsters, even though older people may formally remonstrate and express moral indignation. Another circumstance which could lead to a discharge without conviction is where the offender is disabled, or physically or mentally handicapped and the victim was a consenting party.

The middle of the sentencing range should be reserved for those cases in which mature men offend, without any circumstances of aggravation, and the upper part of the sentencing range should be for those cases in which there are aggravating circumstances. Where there is a relationship of trust or dependency between the accused and the victim there are circumstances of aggravation. The relationship of teacher and pupil is an example. Parents put their trust in the school system when they send their children to school; they do not expect the teachers to sexually abuse their pupils. This factor is particularly relevant in those provinces of Papua New Guinea where girls have been held out of school because of traditional beliefs that schooling will disrupt a girl’s marriage prospects. Formal education is now well recognised as being a vital component in the on-going process of the liberation of women in the Third World, and the criminal law should be used when appropriate to support the State’s objectives in providing educational services to women.

There are other relationships of trust which in my view constitute circumstances of aggravation in these cases. For example, within the medical profession, the relationship between doctor, paramedic, nurse and patient. It is within this broad category of trust and dependency that offences committed by "step-fathers" or "uncles" should fall, for the relationship between a step-father or "uncle" and a young girl may be one of complete confidence and love -- and to break that bond sexually may not only subject the victim to pyschological damage, but is a betrayal, a form of personal treason.

Similarly, the defilement of mentally handicapped girls and women may give rise to a breach of trust, although it is now recognised that the handicapped have the right to a sex-life in the same way as all other persons over the age of 16 years. This is a difficult area because there has been a great deal of change in community attitudes since the late nineteenth century when the Criminal Code was formulated.

In summary, the lower portion of the range would go up to about 20 months; the middle of the range would be between about 20 months and 40 months; and the upper portion of the range would be between 40 months and 60 months.

In the case of Sottie Apusa, I note that he has paid compensation to the natural parents of the victim of K200 and one big pig. Relationships between the lines have been settled.

Both counsel have submitted that the six separate offences should be treated as a single complex. I was referred to D A Thomas’ Principles of Sentencing, 2nd ed (1979) at 54. The author there says:

"The concept of ‘single transaction’ may be held to cover a sequence of offences involving a repetition of the same behaviour towards the same victim, such as a series of sexual offences with the same partner."

Accordingly, the sentences imposed for each of the offences should be served concurrently.

Because an act of unlawful carnal knowledge committed with a step-daughter may be classified among the more serious of these offences, the proper range of sentence in a contested case should be between three years four months and five years, five years being reserved for the worst offences. In my view, an appropriate starting point in this case is three years nine months. However, this was not a contested case; the prisoner has pleaded guilty and on the basis of the principles in John Aubuku v The State [1987] PNGLR 267 and R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985, he is entitled to a reduction in sentence. But the prisoner in this case was caught in the act of abusing the victim by her mother so the State had a good case against him. I would reduce his sentence by seven months. Accordingly, on each of the charges, I sentence the prisoner to three years and two months in hard labour, less the one month he has served on remand while waiting to be bailed out, that is, a sentence of three years one month. All sentences are to be served concurrently. The prime objective of this sentence is to mark society’s disapproval of this type of offence and to act as a deterrent to others, so as to protect young girls.

Sentences of three years two months IHL to be served concurrently

__________________

Lawyer for the prisoner: Public Solicitor.
Lawyer for the State: K Bona, Public Prosecutor.