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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. 1218 OF 2010
THE STATE
V
FRANCIS TIGI
Vanimo: Kirriwom, J
2012: 18 July
2013: 18, 20 & 24 July
[No.2]
CRIMINAL LAW - Sentence – Persistent sexual abuse – Child under sixteen years – Sexual touching – Sexual penetration of vagina using fingers and penis – Plenty times – Over a period of one year and three months – Victim aged 12 years old – Prisoner aged 61 – Offence carefully planned and executed progressively over time covering almost three years - Criminal Code, s.229D.
Sentence – Imprisonment for 13 years.
Facts
Prisoner became a family friend of the victim FT and her parents by default when the parents went to Port Moresby leaving the victim and her sister VT in the care of another family friend. When the parents returned the friendship was strengthened and prisoner moved in with the family.
Over time he provided food and support for the family and lunch monies for the victim and the sister. In the privacy of his room he showed the two girls blue movies on his mobile phone of naked men and women and people having sex.
This continued even after he moved to his own employer-provided office cum accommodation. He convinced the parents to allow the victim 11 and sister 10 years to move into his accommodation with him where he could provide their lunch monies and better quarters.
Prisoner and the two girls slept on one big bed and mattress with victim next to the prisoner. Sexual touching began from the breasts to the victim’s vagina with fingers. Penetration of the vagina with finger soon followed and once victim attained her first monthly period penile penetration commenced around July 2009 and continued right through to April 2010.
Court rejected strong moves to settle by hefty compensation in lieu of prison term as such was not in the best interest of the victim and emphasising the sentencing objective of deterrence and retribution.
See more on my judgment on both verdict and sentence.
Cases cited:
The State v Apolo Kesu [2006] Unreported National Court Judgment.
The State v Steven Makai (2009) N3841
The State v Kikia Solowet (2007) N3154
The State v Steven Siname [2009] N3908 and
The State v Kuyaps Toki Jonathan [2008] N3315
The State v Ereman Kepas (2007) N3192
The State v JB [2007] N3224
The State v Binga Thomas (2005) N2828
The State v Duma Burua CR No. 829 of 2005
The State v Ilam Peter (2006) N 3090
CR No. 296/2006 The State v Kikia Solomet (24/8/07)
The State v Stafford Hambo [2010] N4120
The State v Francis Molean [2012] N4597
Publication
Child Sexual Abuse: Bulletins for Teens-Bullying and Harassment (http://www.victimsofcrime.org/help-for-crime-victims/get-help-bulletin)
Counsel
T. Ganaii, for the State
A. Ninkama, for the Prisoner
REASONS FOR SENTENCE
24th July, 2013
1. KIRRIWOM, J.: Francis Tigi was found guilty after a trial on one count of persistent sexual abuse of a child under sixteen years old which consisted of sexual touching ie touching of the victim's breasts for sexual purposes on many occasions the victim could not recall the exact number of times, sexual penetration of her vagina by insertion of the fingers and penis on many occasions that the victim could not state the precise number of times except that he did them 'plenty times' during a period of one year and three months from 1st January 2009 to 30th April, 2010. Evidence also included sexual penetration of her vagina by the prisoner's tongue which was not alleged in the indictment. The indictment however alleged sexual penetration by insertion of penis inside the victim's mouth by the prisoner but no evidence was tendered on this. The evidence mostly centred on sexual touching of the breasts of the victim and sexual penetration of the victim's vagina by both fingers and penis.
2. At first it was just the sexual touching and then insertion of fingers inside the vagina. Penile penetration of the vagina commenced after the victim's first menstrual sickness in June 2009 and this was the time when the victim and her little sister virtually lived with the prisoner in his office cum accommodation at Amgrim Holdings Ltd while sharing one bed and one mattress, all three of them. With this sleeping arrangement the likelihood of the incidences alleged cannot be ruled out nor denied.
3. The prisoner took months to build the right climate of trust and dependency around him and the two girls with the support he poured onto them and meeting their emotional and personal needs that their parents could not provide. Once he saw that they were dependent on him and would submit easily to what he wanted of them, he started showing them blue movies on his mobile phone, then moved up to touching the victims breasts, and then to touching the vagina with his fingers as he gradually made his way up and before long he was already inserting both his fingers and penis inside the victim's vagina. This offence was well planned and executed progressively over time to full penile penetration and continued.
4. At the time of discovery of this offence, the victim and the little sister had become so emotionally attached to the prisoner that their cooperation in the prosecution of the prisoner was nonexistent and when pressed was given grudgingly out of fear of going to prison. This is demonstrated by the continued contact that the girls maintained with the prisoner even after the completion of trial of the prisoner and while awaiting judgment. This continued relationship between the prisoner and the victim and her sister after the matter was already in the hands of the law was clearly a direct interference with the administration of justice. It also had its counter-productive effect on the family whose task was to rehabilitate the girls into their normal and ordinary lifestyle instead of living in that dream world that the prisoner had built for them to pursue his own hidden and evil motive of defiling them. It is little wonder now that the victim impact statement filed by the father Mr FT for purposes of sentencing of the prisoner shows that not only is the victim now totally alienated herself from the family and become rebellious, the little sister VT had also left school with serious disciplinary issues and she too had become rebellious against the parents. Both girls have become unmanageable.
VICTIM IMPACT STATEMENT
5. I reproduce parts of that VIS from page 2:
".......
12. My family has lost in terms of future financial benefit whatsoever from FT due to what has happened and there is nothing we can do.
13. FT has met and married a young man in 2012, but this relationship is shaky due to what happened between her and Mr Tigi and also due to Mr Tigi's persistent interference with her even well after the trial in the matter was completed. I can only watch and pray FT finally finds some happiness and pulls herself together.
14. My young daughter VT is also suffering from what happened to her sister as she was with her sister at all material times during the commission of the offence.
15. VT has since left school and is a disciplinary problem child for myself and her mother.
16. She too still maintains contact with Mr Tigi who has a lot of influence over her and thus caused VT to rebel against her mother and I when she doesn't get her way. Her rebellious behaviour has continued to present.
17. I am deeply aggrieved at what has happened to my two daughters as the result of Mr Tigi's actions. My two daughters are now out of school due to what happened.
18. He was a well educated man and without a single thought for anyone else, took away my daughters innocence, their chances of better life through proper education and sentenced them to life sentence of having to bear the stigma of being sexual abuse victims.
19. A situation I am helpless to make good. I can only pray my daughters see worth in themselves and stop their rebellious behaviour, and make good their lives.
20. I certify that this statement consisting of three (3) pages is true to the best of my knowledge and belief. I make it knowing that it is for submission to the Judicial Coram sentencing the offender and know that the information must be true. I know that I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particulars.
That's all.
Humbly submitted.
(signed)
Mr. FT
Dated the 19th day of July, 2013."
6. This is the plea from a child sex victim father who lost his child (ren) as the result of this deceit and deception that brought untold misery and life of unhappiness just unfolding on the once a happy and normal family which is now forced to face the reality that they have to live with since the prisoner entered their simple life with lollies and money and lured their children away from them under the guise of good friendship. It is a wake-up call for many families with young children, male or female, to beware of adult sex predators lurking about in many disguises and families in very vulnerable positions, are at greater risk of becoming victims to such trickery that could destroy their family forever.
7. If the juvenile court office here in Vanimo have any role to play in this juvenile's case, this is the time the office must become involved to immediately prevent further contact between the victim and the prisoner as the conduct itself was in direct contravention of the criminal process that had already run its full course and all that was pending was the decision of the court. It was also, most importantly, not in the best interest of the child victim whose psychological and emotional well-being was already traumatised and displaced by the abusive sexual conducts and the sooner that memory was erased from her mind, if at all possible, the better for the long term recovery prospects of the victim. It is not surprising that the parents are now witnessing the consequences of the damage or harm inflicted on their daughters by this crime as they are slowly coming to grips with the reality according to the victim impact statement. Properly appreciated and understood of their responsibilities, this report could even be compiled by the Juvenile court office as well as child welfare office.
8. On behalf of the prisoner it was submitted that I take into account the following matters on behalf of the prisoner.
9. The prisoner is 64 years old widower at time of trial married three times, whose most recent wife from Gaire, Central Province died in 2002 leaving him a total of six biological children and seven adopted children who he still sustains today. Four of the children are married. The prisoner's first wife was from Muschu Island, Wewak with whom there are two children which ended in 1977, he married again to a Kerema woman, a widow with four children whom he inherited through this marriage and with his two children from the first marriage, he now had six children. His third wife also had three daughters in her previous marriage when he got married to her and with whom two girls were born to the prisoner.
10. At the time of the offence he was employed as company secretary by Amgrim Holdings Ltd, a landowner company of Amanab Block 1-4 TRP area in partnership with the Vanimo Forest Products, the developer of this resource district. This is a job he has held since 1994 following his retrenchment from the Public Service as a forester with the Department of Forests initially as advisor and in 2008 being promoted to the company secretary.
11. Francis Tigi is from But village, Wewak East Sepik Province. He completed Form 4 at Marist Brothers High School on Kairiru Island in 1967 and went onto completing preliminary year at the University of Papua New Guinea.
12. He left the university after preliminary year and joined the work force ending up at Bulolo Forestry College in 1969 where he studied cartography.
13. In 1969 he joined the Lands Department Mapping branch when all the senior positions in the country's Public Service were predominantly occupied by expatriate work force. He was one of those early pioneer career officers who broke through that barrier as he rose up the ladder ultimately becoming the country's Chief Cartographer or Chief Draftsman. This elevation followed specialised overseas training in 1972 in Australia and he was amongst the leading career officers who initiated the Public Service localisation program.
14. With this experience and expertise under his belt, he was appointed the State's Project Coordinator to develop the huge Vanimo TRP which landed him in Vanimo in 1990 where he has been since.
15. He was retrenched from the Public Service in 1993 and he undertook consultancy work as Business Advisor to the local people setting up the Amanab Timber Project now developed by Vanimo Forest Products.
16. At the time of his sentencing today, he is in the middle of setting up Savings and Loans Society for Amanab-Green River timber resource or land owners.
17. Counsel also alluded to those factors that aggravated this offence, particularly the large gap in the age difference between the prisoner and the victim which is 50 years, betrayal of trust and conviction after trial.
18. It is generally said that wisdom often comes with old age, when a man gets older, he becomes wiser. With over forty years of life experience under his belt and total of 13 children and unknown number of grandchildren out of the four married off-springs, the prisoner would have enough wisdom to overcome any moral and physical challenges in that late stage of his diminishing years to simply focus on enjoying life to the full in the company of his grandchildren and his job. But for the prisoner, all that was not enough. He was however sexually very active and instead of looking for women of mature age with whom he could satisfy his desires, he chose a child and as the consequence a young child has been deprived of a good and fulfilling life in the future, having dropped out of school at Grade 7 and unable now to cope with normal life.
19. This was a serious betrayal of trust that Mr and Mrs FT had on him as a close friend and uncle to the two girls by even accommodating him in their house for close to two years.
20. The evidence in this case was already quite damaging against the accused from the time this matter became public. There was no way that the accused could have escaped conviction especially when the victim had given her statement to the police. He could have saved the victim unnecessary ordeal and anxiety by admitting the offence and focussed on mitigation of penalty.
21. The following factors were submitted in mitigation of penalty:
22. I accept the prisoner's prior good record as a strong mitigating factor until he was in his early sixties when temptation took the better of him. I also accept his advance age because they have always been strong mitigating factors in most cases. I have referred to some of those cases in the judgment where the court bent backward because of the prisoner's advanced age and imposed sentences on the lighter side.
23. Lack of violence or threats to achieve his immoral purpose with the victim is not a good mitigating factor in this case because the circumstances in this case are not the same as in such cases where violence is expected to be employed by the offender to achieve his desired outcome. Research results around the world have shown that in majority of child sex abuse cases, abusers gain access to their victims through deception and enticement, like in this case, seldom using force. Abuse typically occurs within a long term, ongoing relationship between the offender and victim and escalates over time. And that is what happened in this case, from showing of blue movies, to breasts touching, to touching of vagina with fingers and finally to penile penetration of the vagina. It took two to three years. I do not give much weight to this argument.
24. Similarly I do not give any weight to the submission that the victim suffered no sexually transmitted disease. I do not accept such a submission from defence if there was no reason for it to be mentioned. It could be construed negatively against the prisoner by implication that he was a carrier of STD but fortunately none of it passed to the victim. Unless there was a medical report showing no evidence of sexually transmitted disease, it is better left alone. It will not add or subtract any point if it was left out altogether.
25. I have earlier discussed briefly on the continued support that the prisoner was providing to the two girls. And the same submission is raised in the context of compensation, reconciliation and exceptional circumstance for special consideration. This is not mitigation. What is submitted here is in direct contradiction with the victim impact statement that the court has received from the father of the victim. Mr Ninkama took issue with the statement as not being made by the victim in person. This submission is misconceived and lacks logical reasoning in that first and foremost, the victim is a child and such a statement is appropriately made by a parent or guardian. It fulfils the requirement of section 21A of the Code which all lawyers must take time to appraise themselves fully of its purpose and intent. The section provides:
"21A. Victim Impact Statements.
(1) For the purposes of determining the sentence to be imposed on an offender, the court shall consider any statement that may have been prepared in accordance with Subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.
(2) A statement referred to in Subsection (1) must be—
(a) prepared in writing in the form and in accordance with the procedures established for that purpose; and
(b) filed with the court.
(3) A statement of the victim of an offence prepared and filed in accordance with Subsection (2) does not prevent the court from considering any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender.
(4) For the purposes of this section, "victim", in relation to any offence—
(a) means the person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence; and
(b) where the person described in Paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in Subsection (1), includes the spouse or any other relative of that person, anyone who has in law or fact the custody of that person or is responsible for the case or support of that person or any dependant of that person."
26. The section clearly does not confine the statement required to be compiled by the victim. It says in subsection (3) 'a statement of the victim of an offence' prepared and filed in accordance with subsection (2). And subsection (2) requires the statement to be in the prescribed form and filed with the court as was done in this case. It was in a form of affidavit and articulately set out.
27. While there may not be any evidence of physical injuries to the victim because there was no need for any violence in this case for the prisoner to have his way, the victim impact statement is highlighting the emotional and psychological suffering that the victim is presently going through. More than any physical injuries that the victim sustains, the violation of trust that accompanies most sexual assaults has been shown, according to research, to dramatically increase the level of trauma the victim suffers. Emotional and psychological injuries cause harm that can last much longer than physical wounds.
28. Defence counsel referred to The State v Steven Siname [2009] N3908 and The State v Kuyaps Toki Jonathan [2008] N3315 and both were cases involving persistent sexual abuse and both involved sexual penetration of the vagina by the male penis. In the first case the prisoner sexually penetrated his biological sister aged 15 years on a number of occasions resulting in her becoming pregnant but the child died. He was sentenced to 28 years. There was evidence of force used by the prisoner. And in the second case it was a case where a good friend of the family sexually penetrated a 13 year old daughter of the family he was living with over a period of time until she became pregnant and the girl admitted to her mother when she questioned her. He was sentenced to 18 years imprisonment. In both these cases the prisoners were young men in their twenties.
29. Defence counsel was unable to cite me any cases closer to the circumstances of this case as far as the prisoner's age was concerned due to shortness of time he had to prepare for the address. However it was submitted that those two were worst cases compared with the present which I beg to differ. He submitted I impose sentence between 10 and 12 years and suspend half of the term in this case.
30. Mr Ninkama submitted that there were exceptional circumstances that the court must take into account which was the continuing support that the prisoner extended to the family even after he was charged and taken to court pending delivery of the decision. Whether this is correct in law is addressed later in the judgment.
31. Mrs Mauta argued that this was a serious case. The seriousness of the abuse is the charge itself under section 229D. This is not a single one-off act of sexual abuse of a child as in section 229A but one that was repeated over many times and over a period of one year and three months. The charge concerned repeated sexual assaults and for that reason alone any charge brought under this section was already a serious charge as it was concerned with repeated sexual assaults of a child victim. And that is why the charge is referred to as persistent sexual abuse, the offence persisted over time, the fact that it persisted makes it serious. It is not a case of one-off incident but perpetrated on more than two occasions.
32. Mrs Mauta submitted that the starting point must be 20 years because of the aggravating factors in the case with the large age disparity of 50 years and the very young age of the child victim.
33. I have considered the prisoner's personal and family background. Only after his conviction the court comes to know that he was a married man, not once but three times, till 2002 and had his own children from those marriages as well as adopted those from his spouses previous relationships some of who are already adults and some still attending school. He can then appreciate the pain that FT and RT are going through right now since he entered their lives when he could have confined himself to looking after and maintaining his own very large family which was already quite a huge burden comprising his own biological children and his adopted children.
34. I disagree with Mr Ninkama in his submission of treating this case as an exceptional one that must weigh heavily in favour of the prisoner because of his continued assistance given to the two girls even after this trial was completed and while awaiting decision. He took the prisoner's continued contact with the two girls as an act of reconciliation and compromise with the girls' family. There is however no evidence to suggest that Mr and Mrs FT were happy with the prisoner's continued contact with their daughters. In my view, the prisoner was in gross violation of his bail condition by maintaining regular contact with the State's key witness in this case which when viewed from the public perspective had the potential of compromising and undermining the judicial system and its process. With common sense prevailing, he should have isolated himself and stayed away as far as possible from the two girls so that they could return to normal life with their family by departing permanently from that dream-world that he had created for them that lured them away from the reality, which was the world where their parents lived. I take this into account as a serious aggravating factor against the prisoner.
35. Another serious aggravating factor is the age difference between the prisoner and the victim. She was only ten when the relationship started and by the time she turned 12 there was sexual contact between the prisoner and the victim. He was then 62 years old, an age difference of 50 years. He morally corrupted this young girl at 10 with her sister by showing them blue movies and when he had worked his way towards manipulating their willingness into submission, he began his series of sexual exploitation of them, particularly, the victim FT.
36. Age of the offender has also been taken into account on sentencing for this and other sexual offences against children as an effective mitigating factor. If there is any factor that could effectively mitigate the severity of the punishment of the offender in this case are two things:
37. There are many cases in this jurisdiction where the court placed emphasis on the advanced age of the offender to impose a more lenient sentence. Some of those cases are discussed below. In The State v Ereman Kepas (2007) N3192 a sixty year old man pleaded guilty to persistent sexual abuse of his adopted daughter aged 10 years old when he rubbed his penis against her vagina five times over a period of four months and on the sixth occasions sexually penetrated her by inserting his penis into her vagina resulting in the victim becoming unconscious, could not walk properly and the neighbours took her to the hospital. The victim's biological mother was the sister of the prisoner's wife.
38. Justice Cannings while sentencing the prisoner to 12 years said:
" It is hard to comprehend how a man who held down a government job for so long and was, according to the pre-sentence report, a reputable office-holder in the Seventh Day Adventist Church, could commit such a wicked crime. The offender has brought shame to himself, his family, his church and the people of Nodup village in East New Britain. If he were to be sentenced disregarding his advanced age and his medical condition, the sentence would have to be amongst the highest ever imposed for this sort of offence, ie in the range of 25 to 30 years imprisonment. Indeed it is arguable that this falls within the worst-case category, warranting a life sentence. I think many people would say that this is what the offender deserves.
24. However, I am going to regard the offender's advanced age and his medical condition as major mitigating factors. I do not feel that I would be dispensing justice by subjecting a 61-year-old man to a 25-year sentence. It would leave him little prospect but to die in prison as an old and ill man. I am therefore imposing a sentence of about half of what would otherwise be warranted. The sentence I impose is 12 years imprisonment."
39. Then there was The State v JB [2007] N3224, a case of persistent sexual abuse involving the prisoner a 44 year old man who was married for 25 years and had six children, four girls and two boys pleaded guilty to two counts of persistent sexual abuse involving two of his daughters where he sexually penetrated the victims vagina over a period of time, one was under the age of 18 and the other was under the age of 16.
40. On sentencing Lay J examined sentences imposed and observations made in the New South Wales Supreme Court while sentencing under similar legislative regime akin to section 229D and reviewed a long list of local cases some of which I discussed above and imposed a total term of 20 years, eight years for the first count involving the first victim and twelve years involving the second victim whom the prisoner infected with sexually transmitted disease, both ordered to be served cumulatively.
41. I am indebted to Lay J who compiled a summary of some of the older cases decided before The State v JB (supra) in respect of section 229A, several of them are not published judgments. I refer to some of them below where the offenders in the age bracket of 50 and older were given custodial but shorter sentences than those who were younger. Those cases include:
42. Some of the later cases include The State v Stafford Hambo [2010] N4120 where the prisoner was charged with five counts of sexual touching under section 229B. While taking into account the old age of the prisoner who was 62 at the time as well as a medical condition when sentencing him to six years imprisonment, Cannings J made this observation:
"28. In The State v Ereman Kepas (2007) N3192 I sentenced a 61-year-old male offender to a term of 12 years imprisonment on a charge of persistent sexual abuse of a child, his 10-year-old adopted daughter. The abuse was constituted by five instances of sexual touching and one instance of sexual penetration, which caused serious physical injury to the victim. I indicated that if that offender were to be sentenced disregarding his advanced age and his medical condition, the sentence would have to be amongst the highest ever imposed for this sort of offence, ie in the range of 25 to 30 years imprisonment. However, I regarded the offender's advanced age and his medical condition as major mitigating factors. I did not feel that the cause of justice would be served by subjecting a 61-year-old man to a 25-year sentence. It would leave him little prospect but to die in prison as an old and ill man. I therefore imposed a sentence of about half of what would otherwise be warranted. I have taken a similar approach in other cases involving offenders of an advanced age who have been convicted of child sex offences, eg The State v Kikia Solowet, CR No 296 of 2006, 24.08.07 (60-year-old man convicted of persistent sexual abuse of his nine-year-old niece, who was living in the family home, sentenced to ten years imprisonment, in circumstances where a prison term of double that length was otherwise warranted) and The State v Arnold Kulami, CR No 737 of 2007, 26.06.09 (50-year-old man convicted of engaging in an act of sexual penetration of his six-year-old niece, sentenced to 17 years imprisonment, in circumstances where a prison term of 25 years was otherwise warranted)."
43. This is a case involving sexual touching of three young girls aged 8,8 and 12 years whom the prisoner tricked while posing as a church pastor with powers to give them knowledge by praying over them while anointing them with oil, rubbed noni oil on the girls vagina and rubbing his penis against their vagina as well as holding the breasts of one of the victims until discovered. While the charge is not the same as in this case, advanced age and medical condition of the prisoner played a significant part in the sentence ultimately imposed by the Court.
44. And in the case of The State v Francis Molean [2012] N4597, the prisoner was an 82 year old retired war veteran who was decorated with a bravery medal for his role in the fuzzy wuzzy angels era was convicted and sentenced to 10 years for sexually penetrating his grand-daughter who was under 12 years at the time. He was 81 at the time of the offence but 82 at the time of trial. The sentence imposed on a person in that very advanced age must clearly send the message that there is no such thing as non-custodial punishment when it comes to sexual abuse of young children.
45. As I stated in my judgment on verdict, it was Marley Sega who saved these girls without even knowing that she was in the process of uncovering her adoptive father's dirty and immoral deeds against the victim which was then, as if by divine intervention, taken up by Mr FT with his story he obtained from Frieda and what he did with that information. How it all happened is now history but it all began with Marley Sega and her demand of her fridge. But it did not have to take that long. If Mr and Mrs FT had been concerned enough about the development of their two daughters, they should not have allowed this relationship to continue. When an old man wants to sleep with two pubescent girls alone in his place and this continues night after night, alarm bells should ring right away and in the interest of their children they have the right to say, enough, something is not right here. They did not do that. By their own complacency, blinded by the prisoners over generosity, they allowed this crime to be committed. They are just as responsible for having allowed the situation to prevail beyond that was necessary for them to have acted responsibly to end it quickly.
46. While it would not be right for me to blame the two girls for placing themselves in that vulnerable situation willingly and consciously, young and innocent as they were, the prisoner had already cast his net and once they were inside that net, turning back was not an option when he was to them their source of happy and fulfilling life for growing up children like them.
47. This charge is just one offence perpetrated over a period of one year and three months during which the victim was subjected to sexual touching of her breasts, then sexually penetrated when she turned 12 by the prisoner inserting initially his fingers and thereafter his penis inside the victim's vagina and continued throughout that period until he left for Port Moresby. No precise number of times were given but the victim in her evidence said 'plenty times'. Plenty times could mean a lot more than two times and that is what section 229D is all about that the offence persisted over a long period of time. And the law does not require proof of the precise number of times this happens suffice that it is no less than two times.
48. I heard the prisoner on allocatus who asked for a non-custodial sentence. As the consequence I requested for Pre Sentence Report and Means Assessment Report and below is the PSR.
PRE SENTENCE REPORT
49. I commend Ben Kasanda the Senior Community Based Corrections Officer and his team from CBC who worked tirelessly in a matter of three days to produce a very detailed and thorough report after interviewing a wide section of the community in Vanimo whose views are very relevant in this case. Many of those who are named in the PSR are those whose names were mentioned and who also appeared in the trial as witnesses and some new comers who played a part in the life of some of the key players in this case. One such example is the biological father of the victim and her sister.
50. The views expressed by the majority of those interviewed including RT, FT and VT are that the prisoner be given a non-custodial sentence and that he should pay compensation to the victim FT in the sum of K150,000 for ruining her chances of good education and her life. The only exception is the foster or step-father FT who wants the prisoner to make full compensation payment in order to qualify for a suspended sentence or else he must remain in prison until that sum is paid. Otherwise he supports the compensation arrangement. With respect to compensation let me state at the outset and which the parties have been advised of and that is the maximum this court can sanction under law is K5000 in cash or kind or both. Anything beyond that there is no legislative imperative on the court to either approve or disapprove.
51. Other persons interviewed speak strongly of the prisoner being given non-custodial sentence for their own reasons. Mrs Bogan is the wife of the former Chairman of the Amgrim Holdings Ltd and she says that the two girls were already bad apples when they came to know the prisoner while living with her in her house and she had difficulty managing them too. She did not have any good words for the mother of the girls either.
52. Jeffrey Hamps, Ward 3 Councillor praised the prisoner as kind hearted and good citizen and blamed the crime on the mother of the girls and the girls themselves. He said they were heavily dependent on the prisoner for their survival as he observed.
53. PW former husband of RT and biological father of the two girls expressed disappointment and sadness for what happened to the girls but blamed the mother and said that court consider non custodial sentence for the prisoner and a reduced amount of compensation. He said K150,000 was far too excessive.
54. Both Chairman of Amanab Timber Landowners Association Kevin Yehiura Muriki and Jones Kromo, the new Chairman of Amgrim holdings Ltd say that the prisoner be given non-custodial punishment so that he can complete the projects he had started with them. He has been quite an asset to the landowners since he became involved with them and that they were prepared to help him pay compensation that was demanded by the family.
55. I appreciate the views expressed by all those persons who made time when contacted to take part in this process of judicial decision making in assisting me to reach a result that is fair and just to the prisoner. I note that all the views expressed are centred on the prisoner and how good a person he is from his humanitarian perspective in helping many people who came into contact with him and to those around him in the community where he lives. This is a good report and if such a report is prepared for and on behalf of an offender who is charged with a stealing offence or even homicide involving unintentional killing or even sexual offence involving a mature adult victim on a one-off forced encounter, that should be good enough to warrant a more lenient punishment on the offender.
56. The difference between those cases and this case is that this is an offence that involved a child who became victim of sexual abuse when she was not even 12 years and continued after she turned twelve years and persisted over a period of two years with penile penetration of the vagina taking place in July 2009 and continued into 2010. In this type of cases the court's paramount consideration is the protection of the child. FT turns 17 on 12 September, 2013 and she is still 16 this year and by legal definition of child, for all intents and purposes, she is still a child. Not one comment or statement from any of those interviewed expresses how this child is going to be protected from her molester, if he is to remain at large with open access to her and her family any time he or she or the family wants. Or, is it enough, as some seem to be suggesting, that he can continue to enjoy himself or satisfy his sexual lust with the victim as long as he keeps her and the family happy with cash he has been pouring to them in return for defiling this poor child? This is where, as the defender of the weak, meek, oppressed and suppressed, impoverished and struggling and particularly child victims, in the discharge of my sworn duty to uphold the judicial oath of office, I will not even blink an eye in invoking my powers to defend this child victim from further arm from this prisoner or even from her own parents. Parents have been known to sexually abuse their own children, it is happening all the time. I refer to some of those cases in my judgment. It's happening between close relatives, the strong overcomes the weak and has his or her way with the weaker.
57. RT, FT and VT are missing the support that has been flowing to them from the prisoner. Their desire for non-custodial punishment for him is not based on the well-being and future interest of the two girls; it is for their selfish reasons, particularly financial support and sustenance. RT has lost all her moral virtue that she will sell her daughter's young body to the prisoner to keep those goodies coming and there is money for them to spend from her daughter's sexual exploitation. If there is any sanity prevailing in this family anymore from anyone, it is the foster father, FT who wants to see justice done for the crime committed against his daughter.
58. The feeling that RT, FT and VT have for the prisoner now is the emotional link that the prisoner had built into the relationship with the two girls for him to execute his evil purpose which is always hard to wear out easily. RT is already sucked in by this tide of emotion that she is no longer exercising her parental role in a more responsible manner and heavily influenced by the material needs benefitting her and her views to me are biased and unreliable. The views from the two girls are unnecessary in this interview for purpose of this report. They care not about their future like all children all over the world black or white except what makes them tick in today's fast life, money and plenty of money and fun in the sun. They are the victims and have already been indoctrinated to support the prisoner. They will do anything to save him, protect him and come to his beckoning so that he is available for them always all the time they want him
59. How do you sever this attachment in order to save the victim and her small sister from further harm? The victim does not realise the harm upon herself so it falls upon this court to take that first step for her recovery process. And the first step is physically separate the victim from the assailant immediately. In this case, that did not happen, and because of that the prisoner and the victim and her sister continued to maintain regular contact. That continuing relationship must now terminate with immediate effect by a custodial punishment as the only effective way of separating the victim and her sister from the prisoner.
60. This case is about child sexual abuse or persistent sexual abuse of a child. An article on Child Sexual Abuse in a publication Bulletins for Teens: Bullying and Harassment says this on the subject:
"Child sexual abuse refers to any sexual contact with a child or teen. It includes many different acts. Some of these are touching the vagina, penis, or anus of a child; having a child touch the abuser's vagina, penis, or anus; putting an object, penis, or finger into the vagina or anus of a child; and showing a child pictures or movies of other people undressed or having sex.
There are also other forms of child sexual abuse. Sexual abuse can happen to boys or girls of any race, ethnicity, or economic background. Sexual abuse is not a child's fault. The only person responsible for this kind of behavior is the abuser.
People who sexually abuse children usually know the victims before making sexual contact. Abusers can be anyone, even someone the victim used to look up to, like, or trust, such as a neighbor, babysitter, friend, or member of the family or household.
Most of the time, because abusers are often older, bigger, or more powerful than the victims, children are afraid of what will happen if they don't cooperate with the abuse or if they tell someone. Sometimes abusers will threaten or hurt victims in other ways to make them do what they want.
The age of children protected by child sexual abuse laws is different from state to state. In most states, sexual contact between an adult (18 years or older) and someone under 16 years old is child sexual abuse and is against the law, even if the abuser believes the young person agreed to the sexual activity. Children and young teens are protected from any sexual contact by adults and older teens because, when there is such a difference in power, sexual contact is harmful."
61. The law on the protected age of child is the same here as it is in the United States and most countries around the world. Children all over the world are the same regardless of their skin colour, ethnicity, race and religion, often careless, big-headed and difficult to manage. That is why children are the most protected human species in the world with so many laws including a United Nations Protocol on the rights of children imposing duty on parents and Member States to protect children. That is why, what the law is in the United States of America, Japan, England, Australia, New Zealand, Canada, Belgium or anywhere in the world, for the protection of the child, almost one hundred percent guaranteed that the same law would be just as useful and applicable here, if it is consistent with the UN Convention or Treaty on the Protection of the Rights of the Child.
62. The evidence presented in this case clearly demonstrated the very patterns that expert studies into child sex abuse have written about and I have articulated those facts in both my judgment on verdict and even in this judgment on sentence, the progressive trend of sexual behaviour of the prisoner in his intimate contact with the victim from showing of pictures and movies of other people naked or having sex to touching of the breasts to finally full sexual intercourse with the victim which took time to happen.
63. There is therefore no other option but immediate custodial punishment for this offence. This is the type of offence that the employer's
interests or loss is immaterial and an irrelevant consideration. Compensation is therefore out of question. Punishment here is retribution
and deterrence.
64. From all those cases I cited above in the judgment involving men aged fifty and above, non-custodial sentence is not an option.
Not even an eighty year old man decorated with war medals was spared from jail term in The State v Francis Molean (supra) which was decided only last year. It shows where the court's primary and paramount concern and duty lies, protection of the
child.
65. This is a request the court cannot entertain in a very serious case like this at the expense of a very young girl whose whole life is now devastated at such an early age, without proper education her future is bleak unlike the prisoner's own, stable family life is destroyed by the actions of the prisoner and she is now struggling to maintain a steady relationship she was forced to enter into with a young boy in 2012 while so young and below 16 years and a wasted investment by the parents on their daughter on her education that the prisoner ruined for life.
66. As Mr FT quite rightly said, what the prisoner has done to his daughter is like imposing a life sentence on her as she has to live with the stigma of being a victim of sexual abuse for the rest of her life.
67. Those unblemished years of service to the government from the time of colonial administration to self government and independence and thereafter and to the landowners of Amanab Block 1-4 from 1993 to date, in the last four years as their company secretary that the prisoner gave, and the generous support he provided to everyone are now wasted and lost for no good reasons because of the prisoner's own stupidity.
68. I note from the cases I have cited where the offenders were given lenient considerations and sentences were mitigated to lower end of the spectrum were cases where evidence was tendered of the prisoner's old age as well as adverse medical conditions. The prisoner in this case has not complained of any health problems in contrast with those cases as confirmed by the PSR. The sentences I have alluded to clearly set out the range from which the court can decide the most appropriate one.
69. As the maximum sentence is life imprisonment and the range of sentences for persistent sexual abuse sits between 12 and 28 years, appropriate sentence for the prisoner would be fifteen years in view of the seriousness of the offence committed and bearing in mind its long term consequential effects on the victim. However, as I said, parents Mr and Mrs FT are also not without blame, and they share some of the responsibility for what happened as they opened the door for this crime. Considering that I sentence the prisoner to thirteen years imprisonment.
70. In the light of the prisoner's breach of bail conditions in continuing to maintain contact with the victim while this case was pending before the court as he alluded to this fact in the trial on allocatus and confirmed by his lawyer while addressing me on sentence, I also order his bail money be forfeited to the State. Call it what you like, continuing support to the victim's family even after this case was before the court or after hearing of the evidence was clearly in breach of these conditions as per the court order made on 2 November 2010 which was very specific when bail was extended:
71. Court issues warrant for the prisoner's commitment to imprisonment for thirteen (13) years and orders forfeiture of the prisoner's cash bail of K300.
Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Prisoner
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