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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 1529 OF 2005
STATE
V
JB
Kokopo: Lay J.
2007: 4, 6 and 20 September
CRIMINAL LAW– Criminal Code - sentence - plea of guilty - approach to sentencing - Section 229D - persistent sexual abuse of a child with sexual penetration - two counts - two victims - child aged 13 years and child aged 15 years - children daughters of offender - breach of trust - periods of abuse alleged one year 10 months, and six weeks - cumulative sentences imposed - 10 years and 16 years in hard labour - total sentence reduced on the totality principle to 20 years.
Facts
The Offender entered a plea of guilty to two counts of persistent sexual abuse contrary to Section 229D of the Criminal Code, the particulars being sexually penetrating his 17 year old daughter on two occasions in a period of six weeks and also to sexually penetrating his 15-year-old daughter on at least two occasions commencing when she was 13 years and nine months of age over a period of one year and 10 months and infecting her with sexually transmitted diseases.
Held
1. An indictment charging an offence under section 229D of the Criminal Code must charge that the victim was under a relevant age, because Section 229D (4) mandatorily requires specification of particulars of offences under Division 2A and that division is only concerned with children under the age of 12, 16 and 18 years of age;
2. Generally the sentence under Section 229D would not be more than the sentence imposed for a series of similar offences charged individually;
3. The proper course in sentencing under Section 229D is to:
(a) make a general assessment of the frequency of the offending;
(b) make an assessment of the likely sentence if the offender was sentenced for a series of offences involving the Division 2A offence/s particularised in the indictment pursuant to Section 229 D (4), keeping in mind that the maximum penalty is still available for the worst case;
4. The appropriate sentence on count one, persistent sexual abuse of the 17-year-old daughter over a period of six weeks, being two occasions involving an act of penetration, is 10 years;
5. The appropriate sentence on count two, persistent sexual abuse of the younger daughter, being at least two occasions involving an act of penetration over a period of one year 10 months between the ages of 13 years nine months and 15 years, is 16 years;
(c) The offences involved different victims and therefore the sentences should be served cumulatively;
(d) On the totality principle the total sentence reduced from 26 years to 20 years.
Cases Cited
PNG Cases
The State v Saul Ogeram
Public Prosecutor v Kerua [1985] PNGLR 85
Grayson Andowa v The State (1998) SC576
The State v Francis Liro (1999) Jalina J. unreported May 1999 at Kavieng,
The State v James Donald Keimou (2001) N2295
The State v James Donald Keimou (2001) N2295
Rudy Yekat v The State (2001) SC665.
The State v Peter Lare (2004) N2557
The State v Binga Thomas (2005)N2828
John Baipu v The State (2005) SC796
The State v Duma Burua CR No.829 of 2005, unreported, Lenalia J
The State v Ilam Peter (2006) N3090.
CR 1684/2005 The State v Augustin Aulee Silau (17/2/2006) (extempore Mogish J.)
The State, v Kaminiel Okele CR No.1033 2005 (18 April 2006 unreported Kokopo) Lenalia J
CR 326/2007 The State v Keake Iroro (extempore Mogish J.)
Overseas Cases
R v D [1997] SASC 6350; (1997) 69 SASR 413
R v Fitzgerald [2004] NSWCCA 5; (2004) 59 NSWLR 493
R v Manners [2004] NSWCCA 181
References
DA Thomas, Principles of Sentencing 2nd Ed. (1979)
Criminal Code Indications of Childhood Sexual Abuse" by Rebecca Miller Feminista volume 1 No.9,
Child Sexual abuse-a prediction of persistent depression in adult rape and sexual assault victims" M. Chealy, A. Clare & C. Collins, Journal of Mental Health volume 11 No.1 1st of February 2002, pp 79-84
Counsel
T. Ai, for the State
T. Potoura, for the Accused
DECISION
20 September, 2007
1. LAY J:. JB pleaded guilty to two counts of persistent sexual abuse of a child contrary to section 229 D, and not guilty to one count of rape contrary to Section 347 of the Criminal Code, each charge involving one each of three of his four daughters. After a trial of the count of rape he was found not guilty.
THE FORM OF THE INDICTMENT
2. While hearing submissions on sentence, I noted that the period charged under section 229 D in the first count appeared to encompass a period after the daughter had turned 18 years of age. As I noted in The State v Saul Ogeram section 229D(4) makes it mandatory to specify particulars of at least two offences under Division 2A-sexual offences involving a child- under the age of 12, 16 or 18 years. The State applied to amend the period which was originally recited as 15 April 2003 to 5 February 2005 to delete the 5 February 2005 and substitute the 30 May 2003. I allowed the amendment, set aside the conviction and plea and re-arraigned the accused. Not surprisingly the accused appeared more than a little confused and when asked, indicated he would like some time to consult with his lawyer. The matter was stood over for two days.
3. When the matter came back for re-arraignment on the amended count one, I pointed out to counsel for the State that the charge as drafted did not disclose that the victim was a child, a necessary element of any charge under Division 2A. Counsel for the State first submitted that it was not necessary to specify the age, because Section 229J provides a definition that a child means a person under the age of 18 years. I think it must be doubted that the definition is applicable to Division 2A because Section 229J, appears in Division 2B and the introductory words are "For the purposes of this Subdivision-..." which would appear to confine that definition to Division 2B.
4. Section 229D is the only offence in Division 2A which does not specify an age. It is unnecessary to do so because the particulars of the offences required by subsection 229 D (4) supply those ages. After a discussion between bench and bar the State applied to amend the indictment again to insert that the victim was "a child under the age of 18 years". The application, which was not opposed, was granted. The particulars then contained in count one, as required by Section 229D (4) amounted to an allegation of two offences contrary to Section 229E, sexual penetration of a child between the ages of 16 years and 18 years in breach of a position of trust authority or dependency. The accused, was rearraigned on count one and pleaded guilty, which plea was accepted.
THE OFFENCES
5. The first conviction of persistent sexual abuse is that between 15 April 2003 and 30 May 2003, JB sexually penetrated his eldest daughter, a child under the age of 18 years, on at least two occasions in breach of a position of trust authority or dependency. The second conviction of persistent sexual abuse is that between 15 April 2003 and 5 February 2005, he sexually penetrated on at least two occasions another daughter then under the age of 16 years.
OFFENDER'S BACKGROUND
6. On his allocutus JB said that he had been married for 25 years and had six children four girls and two boys, and it was hard to say how much he loved them. He over disciplined them and had also been hard on his wife. In 2005 he decided to change his ways but it did not eventuate. He seeks a light sentence so that he could find a job to help with the welfare of the children.
7. Counsel for JB informed the court that the eldest daughter is now 21 years old; has completed grade 12 and is now doing matriculation studies. The second daughter was adopted in 1998 and is living in Australia. The third daughter is doing grade 12 and the fourth daughter is doing grade 8. The two boys are doing grades 4 and 6.
8. JB comes from Putanagororoi from a family of six, both his parents are deceased, he is a follower of the United church. He completed grade 10 at Malabanga High School in 1981 and grade 12 at Kerevat High School in 1983. He attended preliminary studies at the science foundation year in UPNG. He then attended flying school in Port Moresby starting pilot training with Airlink but left because of financial problems. He was then employed with various companies. At the time of his arrest he was working as the main warden at Kokopo Business School. He is married to a woman from Kokopo District. He is aged 44 years.
SUBMISSIONS
9. Counsel for JB submitted that he is a first offender, there has been a plea of guilty, it involves a family member, the prisoner lives daily with what he has done, the family will never be the same, he is rejected by them, his people are willing to pay compensation.
10. Counsel for the State submitted that the period involved with the second victim was one year and 10 months, that the relationship of trust was as father and daughter and that there was no indication that he was going to stop until the fourth daughter made an allegation against him. He drew the court's attention to two recent ex tempore decisions by Mogish J. dealing with indictments under Criminal Code Section 229D. The first being CR 1684/2005 The State v Augustin Aulee Silau (17/2/2006). The period of abuse was one year, there was a breach of trust, the victim was 12 years old and fell pregnant and delivered a baby. A sentence of 18 years was imposed. The second case was CR 326/2007 The State v Keake Iroro. There was repeated penetration of a male child. There was a plea of guilty. Sentence of 17 years was imposed. In this case the State sought sentences on each count of 18 to 20 years.
APPROACH TO SENTENCING UNDER S 229 D
11. Pursuant to Criminal Code Section 229 D (6) if one or more of the occasions of abuse involves an act of sexual penetration of a child, subject to Section 19, the maximum sentence is life imprisonment; otherwise the maximum penalty is imprisonment for a term not exceeding 15 years. In this case on both counts, because there is sexual penetration, the maximum penalty is life imprisonment.
12. Prior to the amendments to sexual offences and the introduction of further offences to protect children in the Criminal Code in April 2003, the maximum penalty for incest was life imprisonment pursuant to Section 223 of the Code. What Parliament has done by introducing new provisions with heavy penalties for sexual offences against children, and by changing the penalty for incest from life to seven years, is to recognise the experience of the courts that the great bulk of incest cases with serious aggravating features were offences against children involving, in many cases, gross breaches of trust. Because of the changes that Parliament has made it is now appropriate that such offences be dealt with under Division 2A as this case has been. An incest charge would now only be brought against consenting persons within the prohibited degree of relationship. However, it is helpful to look back at some of the observations which the court made in incest cases, with similar facts to this case, before the amendments.
13. One passage particularly appropriate to the present case comes from the case of Grayson Andowa v The State (1998) SC 576 Woods J. Injia J. Akuram J.
"One feature of many of these incest cases is that once the man has committed one act of incest against a daughter or sister he often repeats. In the above-mentioned case there were repeated acts and in the case before us now there are two counts and the evidence is that the appellant was wanting to do it again. This highlights the importance of stopping these incest acts as soon as discovered because they tend to repeat and suggests that two counts can be as serious as many as if not stopped they do lead to many."
14. Speaking of the effect on the family and the victims of this type of crime, Kandakasi J. made the following pertinent observations in the case of The State v James Donald Keimou (2001) N 2295 which, with respect, I fully endorse:
"... it no doubt destroys trust, the security of the home and leaves for ever lifetime scars for the victim and a bad stigma for him or herself and his or her family and relations. Love gets replaced by hate and trust with distrust. Insecurity replaces security and fear replaces confidence in the family unit and the immediate community. Happiness, peace and joy are replaced with shame, ridicule and unhappiness in the family unit and in the wider community. If the victim gets infected with sexually transmitted diseases, his or her health is replaced by sickness".
15. A not dissimilar provision to Section 229D applies in New South Wales, Australia. Although in that provision (Section 66 EA(1) of the Crimes Act) the prosecution is required to prove that a person engaged on three or more occasions on separate days during any period, in relation to a particular child in conduct constituting a sexual offence the offender is liable to imprisonment for 25 years. The Court of Criminal Appeal of New South Wales has held that when an offender is sentenced under that provision, the question for the sentencing judge is where the offence should lie on the statutory scale, bearing in mind the statutory maximum. It is not logical to approach the sentencing task by considering what sentence each of the individual offences would have attracted had they been charged as isolated offences: R v Fitzgerald [2004] NSWCCA 5; (2004) 59 NSWLR 493. At the same time in that case Sully J. at [13] (with whom the other members of the court agreed) approved the approach taken in South Australia by Doyle CJ in R v D [1997] SASC 6350; (1997) 69 SASR 413 where he said at 420:
"It is sufficient to make an assessment in a general way of the frequency of the offending. In my opinion one should then consider the likely sentence if the offender fell to be sentenced under the provision that creates the relevant offence or offences, as distinct from under s 74, and on the basis that the offender is sentenced in respect of a number of representative offences, those offences being treated as offences which are part of a course of conduct involving similar conduct.
In this way the court will still have regard to the duration of the offending, the seriousness of the offences involved, and the frequency of the offending. But the court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima."
16. In R v Manners [2004] NSWCCA 181 at 121, the court held that there was nothing in the provision for persistent sexual abuse of a child applying in New South Wales to suggest that Parliament intended sentencing for a course of conduct that had crystallised into the equivalent of a Section 229D conviction to be more harsh than sentencing for the same course of conduct if it had crystallised into convictions for a number of representative offences of the same type as the particulars provided in the charge.
17. That approach was taken because under the particular statutory regime the offences which could be particularised in the equivalent of a section 229D charge ranged from those with a maximum penalty of life imprisonment to those with a maximum penalty of 18 months imprisonment. So that the maximum penalty of life imprisonment for the equivalent of a Section 229D offence could not be regarded as an indication from Parliament of an intention to apply a dramatic increase in sentences for lesser offences. A further reason mentioned in R v D (supra) by Doyle CJ is that the thrust of the provision is not so much to provide harsher penalties but to avoid the problem of having to prove particular dates, times and places with child witnesses. That view was taken after considering the words of the provision and the speech of the Attorney General in introducing the legislation to the South Australian Parliament. The words of Section 229D from which an inference can be drawn, that one of the main purposes of the provision is the avoidance of the need to prove particulars of dates, times and places, are:
"(3) in proceedings relating 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".
18. In Division 2A of our Code the lowest maximum penalty for an offence which might form a particular under Section 229 D(4) is five years (indecent act directed at a child under the age of 16 years Section 229C) and the maximum life imprisonment (s229A(1) & (2) or (3)). However, Parliament has recognised the difficulty which might be posed in sentencing under such a wide range of maximum penalties, when sentencing for a course of conduct under section 229D. That is why there are two classes of maximum penalty, 15 years for acts not involving sexual penetration and life imprisonment for those which do.
19. The R v Manners approach still makes good sense, with respect, because if individual convictions were obtained for a series of sexual offences against the same victim it is likely that the individual sentences would be ordered to be served concurrently, so that in effect the offender serves the longest of the individual sentences. That being the known approach of the Court, where sentencing for the separate offences of a similar nature against the same victim (see paragraph 35), there really is nothing in the provision of Section 229D to indicate that Parliament intended a different approach in sentencing under that provision.
20. I would be reluctant to follow R v Manners to the extent of saying that a judge should never sentence under Section 229D beyond the maximum sentence provided by the representative offences included as particulars in the indictment. I consider it would be wrong, for example, to say that there would never be a case where a judge could impose a sentence greater than five years for a series of indecent acts directed at a child under the age of 16, even though that is the maximum penalty for a single such act, when jurisdiction exists to sentence up to 15 years. There will always be cases where general guidelines are inappropriate. See for example R v Whyte No. SCC RM 99-275 [2000] SASC 93 where sentencing for a conviction of persistent sexual abuse over a period of 18 years was held to be outside any of the guidelines given by the Court of Appeal of South Australia.
21. And I consider that the fact that in Division 2A the maximum penalty applicable to an offence not involving sexual penetration is 12 years, and the maximum penalty for committing such an offence on two or more occasions, under Section 229D is a penalty not exceeding 15 years, is an indication that Parliament intended that there should be a margin above the penalty for commission of a single offence when sentencing for persistent sexual abuse but not so as to take it outside the usual sentencing pattern for a course of conduct.
22. In summary and in adopting what has been cited from the Australian judgments, I consider the proper course in sentencing under Section 229D is to:
SENTENCING TRENDS
23. In addition to the cases referred to by counsel for the State at [10] I note such cases as The State v James Donald Keimou (2001) N 2295, Kandakasi J. That was a charge of incest under section 223 when the maximum penalty was life imprisonment. The father had sexual intercourse with two daughters and they gave birth to a total of three children. There was a guilty plea, no genuine remorse. The offender was aged 50 years. A sentence of life imprisonment was imposed. Also an older case, referred to by Kandakasi J., The State v Francis Liro (1999) Jalina J. unreported May 1999 at Kavieng, where the offender had sexual intercourse with two daughters and a sentence of 13 years was imposed.
24. Sentences in more recent cases charged under section 229A for sexual penetration of a child under the age of 16 and rape under section 347, both of which attract a maximum penalty of life imprisonment, where the offence is in breach of trust, are as follows:
25. Two unreported decisions of Cannings J. each relating to a single charge under Section 229D should be also mentioned:
26. I am grateful also to the reference in the decisions of Cannings J. who just cited two decisions of the Supreme Court not yet available in published form:
THIS CASE
27. In reading the depositions, particularly the statements given to the police by the two girls involved, one cannot help but be struck by the shock and disbelief of the girls that their own father was treating them in this way. The older girl gave a lengthy statement about the anger and revulsion she felt towards her father because of the way he treated her and the demands he made upon her. She also speaks of the excessive discipline inflicted by the prisoner and the tyrannical way in which he treated the family, particularly the girls. There were severe beatings, although not directly connected to the sexual offences by time. This sort of behaviour was of course very useful in keeping the girls quiet about his abuse of them. It is behaviour indicative of an incestuous family as noted in the article "Indications of Childhood Sexual Abuse" by Rebecca Miller published in Feminista volume 1 No.9 where the author notes the characteristics of an incestuous family include a "Father... authoritarian (domineering, over controlling, overly restrictive, excessive discipline) ".
28. The depositions speak of a great deal more abuse over a much longer period than has been charged in the indictment to which the prisoner has pleaded. I remind myself that I must sentence the prisoner for the offences of which he has been convicted and not for any other offences which may appear from the facts in the depositions and with which he has not been charged: John Baipu v The State (2005) SC 796 Sevua, Sawong and Lay J. At the same time I keep in mind that the offence of persistent sexual abuse of a child is aimed at the very problem discussed by the Supreme Court in the passage from Grayson Andowa v The State (1998) SC 576 quoted above [13] and at overcoming the difficulty of proving particulars of time, date and place in a course of conduct.
29. I take into account what the offender and counsel for the offender have said in mitigation which I have noted at paragraph 5 to 8. I note also the offender’s expressions of remorse on his allocutus and the statement from counsel that his people are prepared to pay compensation. Where remorse is genuine and there is a real desire to heal the breach between families, even if there cannot be an expectation of healing the breach within the family, the person seeking the healing does not wait until the court orders compensation to be paid before offering payment. In a social context in which payment of compensation is commonplace and customary to heal such family breaches, an expression of remorse without payment of compensation cannot be given much weight by the court: Rudy Yekat v The State (2001) SC 665. However, I accept the offender's decision to plead guilty and save his daughters from giving evidence is some evidence of genuine remorse.
30. Medical reports contained in the depositions show each of the girls infected with sexually transmitted diseases. The medical reports are of examinations conducted on 8 February 2005. I disregard the medical report in respect of the elder daughter because the date of examination is too distant from the end of the period alleged in the amended indictment. However, from the medical report in respect of the younger daughter I conclude that the offender has infected her, with the vaginal infections from which she was suffering, which required four types of antibiotics and other drugs over a period of 10 days to treat.
31. The aggravating circumstance with which the offender has been charged, is that the persistent sexual abuse involved sexual penetration. In addition to the charged circumstances of aggravation there are factors of aggravation, in relation to the younger daughter that the abuse commenced when she was only 13 years of age and that she has been infected with a sexually transmitted disease. In relation to both daughters there was a grave breach of trust. As this court has said on many occasions the trust between a father and daughter is a most sacred trust and its breach grave and serious and requiring particular sanction by the courts.
32. The offender has submitted that he loves his children. However the facts of this case speak much more strongly of the self-love of the offender. He has put his own sexual gratification before any thought of the welfare of his daughters of which he now claims to be so concerned. He has destroyed family relations and has probably damaged his daughters for life. The authors of the study "Child Sexual abuse-a prediction of persistent depression in adult rape and sexual assault victims" M. Chealy, A. Clare & C. Collins, Journal of Mental Health volume 11 No.1 1st of February 2002 pages 79-84 conclude that there is a high correlation between persistent depression in adult women and childhood sexual abuse, in victims of adult sexual assault. This is just one example of a study showing the effects in later life of childhood sexual abuse.
33. The offender went to his daughter’s school and took classes in religious instruction. How humiliating it must have been for the offender's daughters, knowing the truth of their father’s conduct, to have to sit in religious instruction classes conducted by him. The offender's request for a light sentence in order to be free to find work to assist with the family welfare rings rather hollow and false against the background of his conduct. It demonstrates that even now Mr Bola does not really accept the seriousness of his behaviour. I do not consider that the offender's age requires special consideration in sentencing.
34. On the first count, taking into account that the offender has been convicted of persistent sexual abuse, noting that the individual offences are at the more serious end of the scale of sentencing, but that the period involved is relatively short, and also noting that if the offender was sentenced for a single event under Section 229E the maximum penalty would be 15 years, taking into account the mitigating factors including the guilty plea I consider that the appropriate sentence is one of 10 years in hard labour. I have arrived at this figure keeping in mind that the maximum penalty is reserved for the worst case, estimating a likely sentence for a plea of guilty under Section 229E and adding a period as additional punishment for a course of conduct, having regard to all of the mitigating factors.
35. On the second count taking into account the same matters as in count one, but noting that the offences commenced when the girl was five years younger than in count one and the period extended for much longer and the maximum penalty for a single offence under Section 229A (1) and (3) is imprisonment for life, I consider that the appropriate sentence is one of 16 years in hard labour.
CONCURRENT OR CONSECUTIVE SENTENCES
36. Counsel for the State urged upon me that the two counts involved separate circumstances and the sentences imposed should be served consecutively. During argument, I expressed the view that a series of sexual assaults is often treated as one event. Counsel did not refer to any authority and I had in mind DA Thomas, Principles of Sentencing. However the Second edition (1979) of that book at page 54 says as follows:
" 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".
37. In this case the two counts involve different victims. I have therefore accepted the State' s submission that sentences should be cumulative. The Supreme Court in Public Prosecutor v Kerua [1985] PNGLR 85 at 90-91 referred with approval to the proposition from DA Thomas's work that sentences in respect of offences against different sexual victims should be served consecutively or cumulatively.
TOTALITY PRINCIPLE
38. I must then consider, in accordance with what is generally described as the "totality principle", whether the combined sentence
is appropriate for the total criminality of the offender's behaviour and not crushing on him. The combined sentence is a total of
26 years. This total sentence seems to me to be excessive. I consider a total sentence of 20 years would be appropriate. Sentences
totalling more than 25 years would have been justifiable on a trial. I reduce the sentence on count one to 8 years and the sentence
on count two to 12 years, to be served cumulatively, giving a total of 20 years. From the 20 years I deduct the time in custody prior
to trial, which I calculate to be two years seven months, leaving a balance to serve of 17 years five months.
____________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Offender
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