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State v Jura [2005] PGNC 106; N2862 (21 June 2005)

N2862

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 652 OF 2005

THE STATE

vs.

JOHN URA

WEWAK: JALINA, J

2005: 16th &21st June

CRIMINAL LAW – Sentence – Plea of guilty –Sexual penetration – Victim aged under 16 years – Victim sister in-law of offender – breach of trust – similar conduct by offender twice previously – Criminal Code s. 229A(1)

Counsel:

M. Zurenuoc for the State
D. Kari for the Prisoner

21st June 2005

JALINA, J.: This prisoner pleaded guilty to one count of sexual penetration of a girl under the age of sixteen (16) years. The victim was aged about 13 years at the time having been born on 19 June 1991 as in evident from her clinic book.

The offence was committed in the bedroom of the matrimonial home which is located along 5th Street, Nuigo, in Wewak. It was committed between midday and 2pm on 4th January 2005 upon the victim who was his wife’s younger sister. She has been living with him and his family at the time of the offence.

The prisoner committed the offence after they had both returned from Dagua Market where they had bought some foodstuff. The victim’s evidence which is contained in her statement also shows that after they returned to the house she went to the bedroom and removed her clothes to take a shower as she was feeling hot. She wore a towel and was about to leave the room when the prisoner entered the bedroom. He then placed one of his hands on her throat and the other hand on the back of her neck and when she tried to call for help he released his hand from her throat and closed her mouth with it. He then fondled her breast with the other hand and over powered her in spite of her struggles. She was only wearing a towel. He then removed his clothes, forced her down and had sexual intercourse with her. He was caught in the act by his own wife the elder sister of the victim. The victim was then taken to the hospital and examined the same day after the matter was reported to the police.

The medical report shows that her external genital area as well as the perineum and thighs were stained with dried blood. Blood was also found to be dripping from the vaginal orifice with bruising to the left and right vaginal wall.

Under the repealed s. 216 of the Criminal Code Act, consent or lack of it was not an element of a charge of unlawful carnal knowledge of a girl under the age of 16 years. Consent is now expressly included by s. 229 F of the Criminal Code Act as amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act under which this prisoner has been charged.

In the present case, for the avoidance of any doubt, let me say that not withstanding his assertion that since he has had sexual relations with the victim twice previously so his sexual relations with the victim that day was consensual, the presence of injuries to her genital area coupled with the presence of fresh blood which was dripping from her vaginal orifice demonstrates that the act of sexual penetration was forced upon the victim. If he had had consensual sexual relations with her twice previously as he claimed, then one would not expect blood from the victim’s vaginal orifice. They would have taken time and foreplay would have prepared the vagina for penetration by his penis.

The maximum penalty for this offence under s. 229A(1) is, subject to subsections (2) and (3), imprisonment for a tem not exceeding 25 years. Subsection (2) relates to sexual penetration with a child under the age of 12 years so it is not applicable to the present case. Subsection (3) increases the penalty to life imprisonment subject to s. 19 of the Code, if at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child (victim).

The phrase "relationship of trust, authority or dependency " is defined in s. 6A (2) of the Criminal Code Act as amended:

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

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or
(b) the accused had care or custody of the complainant; or
(c) the accused is the complainant’s grand/parent, aunt, uncle, sibling (including step sibling) or first cousin; or
(d) the accused is or school teacher and the complainant is his pupil;
(e) the accused is religious instructor to the complainant; or
(f) the accused is a Counsellor or youth worker acting in his professional capacity; or
(g) the accused is a health care professional and the complainant is his patient; or
(h) the accused is a police or prisoner officer and the complainant is in his care or control."

The existence of a "relationship of trust, authority or dependency" between the accused and the victim at the time of the commission of the offence is therefore an aggravating factor which would justify a sentence of life imprisonment subject to the Court’s discretion to impose a lesser sentence under section 19 of the Code.

Although Mr Kari referred me to s. 229A (3) and stated that an existence of such a relationship would be an aggravating factor which would justify a penalty of life imprisonment subject to s. 19, neither he nor Ms Zurenuoc for the State has submitted whether or not it fell within the ambit of the "relationship of trust, authority or dependency" defined in s. 6A.

In my view, the relationship between the prisoner and the victim falls within the ambit of the relationships defined or referred to in subsection 2 (b) of s. 6A by virtue of the fact that the victim was living with the accused and her elder sister at the time of the offence. She was not on a short visit to the prisoner’s family that day.

In the event that the relationship between the prisoner and the victim in this case does not fall within the ambit of any of the relationships set out in s. 6A, in view of the words "but is not limited to" in that section (s. 6A) the "relationships" referred to in that definition were not intended by Parliament to exhaustive. Other relationship of "trust, authority or dependency" could be included. Thus, taking into account the particular circumstance of Papua New Guinea where marriage became a major factor in cementing ties between families and in some instances restoring peace between enemy tribes, immediate relatives of the wife or husband were and are even today considered as special. They are treated with the utmost courtesy and respect. The inlaw would have no reason to fear that his or her immediate inlaw would do anything harmful to him or her. In the context of a sexual relationship, particularly with a minor, it would be beyond comprehension. I would therefore consider a "brother in law or sister in law" as falling within the definition of "relationship of trust, authority or dependency" in s. 6A (2). The prisoner was therefore in a position of trust toward the victim which trust he has breached by effecting sexual penetration upon her. The maximum penalty in the present case would therefore be life imprisonment under subsection (3) of s. 229A subject to the discretionary power of the Court to impose a lesser sentence under s. 19 of the Criminal Code Act.

The law relating to and penalty for unlawful carnal knowledge of girls under 12 years of age was previously covered by s. 216. The penalty for carnal knowledge of a girl under the age of 12 years was life imprisonment whilst that for unlawful carnal knowledge of a girl under 16 years of age was 5 years. Both offences now appear to have been combined into s. 229A. The maximum penalty has been increased to 25 years in the case of an offence of sexual penetration of a girl under the age of 16 years whilst the maximum penalty for sexual penetration of a girl under 12 years of age has been increased to life imprisonment but both penalties are subject to the Court’s discretion to impose a lesser sentence under s. 19 of the Code.

Being out in a provincial centre where facilities for legal research are scarce, I am unable to have access to Hansard which contains the record of the proceedings of Parliament to determine why Parliament decided to amend the law relating to sexual relations with females under the age of 16 years but it is widely accepted that the reason behind the amendment was to protect young children, particularly female children from sexual exploitation and abuse by adults which was becoming prevalent. Some of those offenders were not strangers but well known and occupying positions of trust or dependency towards the victim.

In deciding the penalty or sentence I should impose in this case, I must indicate at the outset that I have taken into account the provisions of the Criminal Law (Compensation) Act and that I do not consider payment of compensation to be appropriate as a punishment. Parliament amended the provisions of the Criminal Code which related to the offences against young girls with only one view in mind and that was to protect them and I must give effect to the intention of Parliament. It is also the duty of the Court to protect young children. If the Court cannot protect young children especially young female children through the imposition of stiff sentences as a deterrent not only against the offender but against other would-be offenders, who will protect them?

So taking into account the mitigating factors that defence counsel has put to me in his submission including the prisoner’s plea of guilty, his lack of prior convictions, his expression of remorse, no weapons were used to threaten the victim and that there is no medical evidence of a major physical or psychological harm to the victim but bearing in mind the aggravating factor of breach of trust where the victim was in a position of trust or dependency toward the prisoner, I would consider imposition of a deterrent sentence of 12 years imprisonment in hard labour from the penalty of life imprisonment prescribed by Parliament under s. 299A (3) which I now do.

I deduct from that sentence the 5 months 2 weeks and 1 day he has spent in custody which leaves 11 years 1 week 6 days in hard labour.

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