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State v Bobo (No 3) [2007] PGNC 131; N3264 (27 July 2007)

N3264

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.51 OF 2006

THE STATE

-V-

PETER BOBO (NO.3)

Kavieng: Lenalia, J.
2007: 13, 17 & 27 July

CRIMINAL LAW – Alternative finding – Sexual penetration – Victim at time of offence was age 17 – Section 229A (1) of Criminal Code (Sexual Offences and Crimes Against Children) Act not applicable to ages above 16.

CRIMINAL LAW – Alternative finding – Sexual penetration – Under abuse of trust, authority or dependency – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, s.229E.

Cases cited.
The State v Sottie Apusa [1988-89] PNGLR 170
The State v Mitige Neheya [1988-89] PNGLR 174
The State v Peter Lare (2004) N2557
The State v Penias Moke (2004) N2635
The State v Thomas Angup (2005) CR.NO.414 OF 2005
The State v Paul Nelson (2005) N2844
The State v David Duna Burua (13.7.06) CR.No. 829 of 2005.
The State v Thomas Tukaliu (22.2.06) CR.No. 910 of 2005

Counsel:
M. Ruari, for the State
P. Tusais, for the Accused.

27 July, 2007

SENTENCE

1. LENALIA, J: The accused pleaded not guilty to one count of rape contrary to s. 347 of the Criminal Code Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The second charge contained in the indictment is an alternative count of sexual penetration laid pursuant to s. 229A (1) of the above Act. On the 13th of this month the court found him guilty on the alternative charge of sexual penetration contrary to the later Section mentioned above.

2. After the allocutus was administered after he had been found guilty, the defence counsel raised an important issue in relation to the age of the victim at the time the prisoner committed the offence against her. In fact the victim was a little over 17 years. Such evidence was not available during trial as the alternative charge was laid under s.229A (1) of the Act. After hearing the defence counsel, Mr. Ruari agreed with his learned friend’s submission and I adjourned to the 18th to make a ruling.

3. Then on the 18th instant, I made a ruling that, due to the limitation of age given in s.229A (1) of the Act at the age of under 16 years, and due to the over-whelming evidence of sexual penetration of the victim in the instant case, the prisoner should be found guilty under s.229E of the Act. At the time of the offence, the victim was a little over 17 years which qualified for an alternative finding under s.229E. I ordered that the finding of guilty and conviction should stand but the section for which he was found guilty that is s.229A (1) be substituted with s.229E of the Criminal Code (Sexual Offences and Crimes Against Children) Act. (See my ruling dated 18th July 2007).

4. What follows from here are addresses on sentence by the prisoner and the counsels.

ADDRESSES

5. On the part of the prisoner, when he was administered the caution under s.593 of the Criminal Code, he said, he is sorry for what he did and said sorry to the victim and her family. He said, this problem had caused his wife to leave him. He asked the court for leniency because he is self-employed. He said he has been in custody for one and a half years before he was released on bail and asked the court to consider that on sentence.

6. On behalf of the prisoner, Mr. Tusais asked the court to consider the fact that the accused wife had deserted him due to the problem he had with the victim. That when his wife left him, she also left with the prisoner two of their daughters. Counsel submitted this case was not that serious to warrant imposition of the maximum of 15 years. Mr. Ruari agreed with the defence submission.

LAW

7. The prisoner was found guilty on the alternative charge of the abuse of trust, authority or dependency under s.229E of the Criminal Code (Sexual Offences and Crimes Against Children) Act. I quote the relevant provision which states:

"(1) A person who engages in an act of sexual penetration or sexual touching of a child between the age of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years.

(2) It is not a defence of a charge under this section that the child consented unless, at the time of the alleged offence, the accused believed on reasonable grounds that the child was aged 18 years or older"

8. Under the above Section, I do agree with counsels that there is hardly any case law authority on it. However, let the court start with the premise that the crime of sexual abuse under s.229E of the Act is evil and it is an offence against one’s own child if committed by the father or mother of a child affected or between brothers and their sisters and as was in this case, the prisoner’s niece in the sense that, she was the daughter of the prisoner’s wife’s sister. The case of The State v Mitige Neheya [1888-89] PNGLR 174 establishes that in cases of incest and of course as was in this case any sexual offences against a child is a violation of the most fundamental principle of the ‘sacred trust’ that a child has in his parents and if this court can extend that principle to cover the class of persons defined in s.6A of the Act. That Section defines what the relationship of trust and dependency mean in the context of the kind of relationships the Act covers. It sates:

"(1) 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.

(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 has care or custody of the complainant; or

(c) the accused is the complainant’s grandparent, aunt, uncle, sibling (including step-sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counselor 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 prison officer and the complainant is in his care or control."

9. Breach of trust is of the most severe kind. Particularly when it occurs between parents and children, brothers and sisters, and the extended family as defined by s.6A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, (see also s.229E, and The State v Mitige Neheya [1988-89] PNGLR. 174 & The State v Sottie Apusa [1988-89] PNGLR. 170).

10. I am persuaded by the new scheme provided by the new legislation on the protection of young children and the courts in this country need to give effect to the policy behind the new law, which is to treat sexual offenders against children more seriously and severely. Such policy accords with common sense and contemporary values and concerns prevailing at this time just a little after the new legislation came into effect in April 2003. Sexual abuse of children in this country is very common. The law protects children as much as adults. The elected people of this country have spoken through their elected representatives in the Parliament.

11. There are many cases either in this Province or elsewhere which show that, under-age children have been subjected to persistent sexual abuse by members of their own family or very close relatives as the evidence of the instant case reveals. As the victim said in her evidence, she would have to live with the trauma, guilt and fear because her uncle had abused her.

12. In The State v Penias Mokei (No.2) (26.8.04) N2635 Cannings, J. set out certain considerations which should be considered as a guide to sentencing offenders on charges of sexual abuse under the Act. I have covered some of those factors in this discussion. One of the relevant considerations which His Honour made in that judgment is "the level of breach of trust". If the relationship of trust between the accused and the victim is very close, the more serious the betrayal of trust it becomes and the higher the penalty should be. The victim in the instant case can call the prisoner "papa". Their relationship is very close and the offence he committed is akin to incest.

13. The offence infringes and violates the fundamental duty of the father and mother to care for their children and rear them up in the manner expected by the Constitution and the law. If the court understands the evidence well in this case, the prisoner in a niece to the victim because, the victim is the daughter of the accused wife’s sister.

14. The fact that there has not been any case law authority on the proviso under which the prisoner was found guilty does not mean he cannot be punished. In fact that is an opportunity for this court to set out new sentencing tariff on this particular offence. So under s.229E of the Act, there are two separate offences. One is sexual penetration and the second is sexual touching.

15. I am of the view that, sentences for sexual penetration under that s.229E should be similar to charges laid under s.229A, but allowance can be made to cases under this Section because of the serious aggravation that, the victim of a case brought pursuant to s.229A is under the age of 16 years.

16. Let me quote a few cases where judges have imposed sentence for the offence of sexual penetration with aggravations. I differentiate the instant case from that of The State v David Duna Burua (13.7.06) CR.N0.829 of 2005. That case involved sexual penetration of the accused’s own daughter and the charge was laid pursuant to s.229D (1) and (6) of the Act. He was sentenced to 20 years imprisonment. There are cases which show that, where an offence is committed under the Act are committed with aggravations such as violence, or where the victim is under age, offenders should be appropriately punished proportionate to the degree of whatever aggravations are involved. In the State v Thomas Angup (2005) CR.N0.414 of 2005, the prisoner there was sentenced to 20 years for sexual penetration of an under age girl. In The State v Peter Lare (2004) N 2557, the prisoner was sentenced to 20 years for sexual penetration aggravated by physical violence. The case of The State v Penias Moke (2004) N 2635 establishes the specific further aggravations one of which is violence used against victims of sexual abuse.

17. The second offence under s.229E is that of sexual touching. Note that sexual touching is an offence by itself under s.229B of the Act carrying with it the maximum penalty of 7 years. If an offence is committed with aggravation such as the victim is under the age of 12 years, an offender could be subjected to imprisonment for 12 years. If the prisoner in this case was found guilty of sexual touching, he could be sentence on the range or tariff given for offences under s.229B.

18. I cite one or two judicial authorities on sentences for sexual touching. There are very few case law on sexual touching. At least I may not be up to date with such information however, in the case of The State v Paul Nelson (25.5.05) N2844 Cannings; J sentenced a 65 year old man to 3 years imprisonment in hard labour. Two years of that sentence were suspended with various conditions. He only served 1 year. The victim in that case was age 12 years. The prisoner in that case engaged in one act of sexual touching. There was no existing relationship of trust and it was an isolated incident.

19. In The State v Thomas Tukaliu (Unreported judgment dated 22 February 2006) CR.910 of 2005, this court sentenced the prisoner there to a term of 5 years. Three years were suspended on condition to keep the peace for 2 years. That was a case where the prisoner pleaded guilty to two counts of sexual touching. On both occasions they were aggravated by an existing relationship of trust authority and dependency. Those offences were charged under s.229B (1) (a) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

20. In The State v William Patangala (Unreported judgment dated 22.2.06) CR.800 of 2004, the prisoner pleaded guilty to one count of sexual touching aggravated by an existing relationship of trust, authority and dependency contrary to the above section. He was sentenced to 4 years with one year suspended with conditions.

21. I now return to the sentence on the instant case. You recall the court made a ruling that, the conviction on sexual penetration stood as there was evidence by the victim that she was sexually penetrated. On the alternative charged for which you will now be sentenced, it is not a charge of sexual touching but that of sexual penetration of the victim who was at the age of a little over 17 years.

22. In my view the prisoner ought to be punished on the tariff of sentences for sexual penetration under s.229B but with the less aggravating circumstance of the act being consensual. In the circumstances of your case, the court sentences you to a term of 5 years imprisonment. The court will suspend 2 years from that sentence on condition that after you have served 3 years, you shall enter into a recognizance to keep the peace for 2 years. The time you have been kept in custody shall be deducted from the term you are to serve. The prisoner’s bail money can now be refunded to him.

The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.