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State v Talvat [2013] PGNC 71; N5112 (21 March 2013)

N5112

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 895 OF 2011

THE STATE

V

JOHN TALVAT

Kokopo: Maliku AJ
2013: 21st March

CRIMINAL LAW - Sexual Penetration – Section 229E - Criminal Code (Sexual Offences and Crime against Children) Act.

CRIMINAL LAW - Prisoner pleaded not guilty but was found guilty after a trial - Prisoner is first offender - Prisoner was a teacher at the time he sexually penetrated the victim, and there existed a relationship of authority, trust and dependency between the prisoner and victim – the victim was a student at the time she was sexually penetrated by the prisoner

Cases Cited:

Goli Golu-v- The State [1979] PNGLR
Avia Aihi-v-The State (NO3) [1982] PNGLR 92
Rex Lialu - v - The State [1990] PNGLR
The State-v-Penias Mokei (No 2) (2004) N2635
The State –v- Joseph Ureap CR. 292 OF 2010
The State –v- Jonathan Sepo CR No. 196 of 2012

Counsel:

Mr. Lukara Rangan, for the State
Mr. Trevor Potoura, for the Accused

SENTENCE

21st March, 2013

1. MALIKU, AJ: The prisoner John Talvat was convicted of sexual penetration of one Kelina Kivung, a girl under the age of 16 and 18 years, an offence contrary to Section 229E of the Criminal Code (Sexual Offences and Crimes against Children) Act, and there existed at the time between the prisoner and the victim a relationship of authority, trust and dependency.
   

The Issue:

1. The issue after I have convicted the prisoner is: What is the appropriate sentence in this case; and
   
2. Does the offence fall in the category of worst sexual penetration cases.
   

Personal Background of the Prisoner:

• The prisoner is John Talvat.
  
• The prisoner was born on the 19th April 1984.
  
• The prisoner was 27 years of age at the time he committed the offence.
  
• The prisoner comes from Pilapila village, North Coast, East New Britain Province.
  
• The prisoner attended Kokopo Secondary School in 2003.
  
• At the time the prisoner committed the offence he was in his 3rd year of teaching at Billy Memorial Primary School, Watom Island in East New Britain Province.
  
• At the time the prisoner committed the offence he was on a salary of K270.00 per fortnight.
  
• The prisoner is married to one Hosila and has 3 children.
  
• The prisoner is a member of United Church.
  

Allocutus of the Prisoner:

2. When administering the allocutus, the prisoner said:
   
   1. I am very sorry for what I did and would like to apologise to the victim, her parents and those that were affected by what I did while teaching at Billy Memorial School.
      
   2. I have a young family of three children. The first child is 4 years old. The second child is 1 year 6 months old, while the third child is 2 months old.
      
   3. I ask this Court to have mercy on me and to be lenient with me.
      
   4. I promise before this Court that I will not repeat or commit the same offence in the future.
      
   5. I am asking the Court to place me on Good Behaviour Bond and also to consider placing me on Probation Order with supervision by the Probation Office.
      

Mitigating factors:

1. The prisoner is a first offender – no prior convictions records.
2. The prisoner has apologised to the victim and her relatives.
3. The prisoner has also apologised to the Court.
4. The prisoner promised not to repeat or commit the same offence in the future.
5. The prisoner acted alone.
6. It was a one off incident.
7. The prisoner in the early part of his appearing in the Committal Court proceedings paid to the victim a sum of K2, 500.00 as compensation.
   
3. Beside the mitigating factors which I set out above, Mr Potoura drew the Court's attention to a number of cases which he submits this Court should consider in considering the appropriate sentence for the prisoner. The latest case Mr Potoura referred this Court is the case of The State v Jonathan Sepo CR No. 196 of 2012 by Lenalia J.
   
4. In that case the prisoner pleaded guilty to one count of sexual penetration pursuant to Section 229A (1) an offence under the Criminal Code (Sexual Offences and Crimes against Children) Act, and the offence were aggravated by the age of the victim who at the time of the commission of the offence was 13 years old.
   
5. There are a number of factors that distinguishes that case from the present case.
   
6. First; the prisoner in that matter pleaded guilty and the matter proceeded without a trial. In the present case the prisoner entered a plea of not guilty and a trial has proceeded and subsequently he has been convicted. The prisoner in the present case denied what was really true. This is against the prisoner.
   
7. The second is the age. In that case the victim was 13 years old while the prisoner was 29 years old, a difference of some 16 years. In the present case the victim was between 16 and 18 years while the prisoner was 27 years old at the time he committed the offence, a difference of about 9years.
   
8. The third is the prisoner Sepo was convicted under Section 229A (1). In the present case the prisoner was convicted under Section 229E. In both cases, at the time the prisoners committed the offences there existed between the prisoners and their victims a relationship of trust.
   
9. The fourth factor is the prescribed maximum penalty under Section 229A which is 25 years imprisonment under Subsection (1) and life imprisonment under Subsection (2) if the child is under 12 years old. In the present case the prescribed maximum penalty is 15 years imprisonment.
   
10. The similarity in that case to the present case is that the both prisoners invited their victims to go to their houses. Both victims in the present case and the Sepo case went up to the veranda. In the Sepo case the victim chewed betel nuts on the veranda on the prisoner's house. In the present case the victim had conversation with the prisoner about a rumour that they were in love with each other.
    
11. The other similar fact in both cases is that in the Sepo case the prisoner took the victim into his house and sexually penetrated the victim. In the present case the prisoner took the victim into his sleeping room, sat her on his sleeping bed and later sexually penetrated her.
    
12. In both cases both prisoners had one thing in common in their minds which was to sexually penetrate their victims. They both achieved their intention.
    
13. In the case of Sepo the prisoner admitted to that in his plea of guilty. In the present case it was established by the evidence adduced during the trial.
    
14. The manner in which the prisoners in both cases took charge of their victims were almost identical.
    
15. In both cases, there was an existing relationship of trust between the prisoners and their victims. In the case of Sepo (supra) the relationship was of a father and daughter. In the present case the relationship was of teacher and student.
    

Submission on appropriate sentence

16. Mr Potoura for the accused made lengthy submission on the appropriate sentence to be imposed on the prisoner.
    
17. Mr Potoura submitted a sentence to be imposed on the prisoner should be based on the peculiar facts of the case.
    
18. Mr Potoura urged the Court to consider a non custodial sentence taking into account that the prisoner was a first offender, had paid compensation in the sum of K2, 500.00 to the victim.
    
19. Mr Potoura also urged the Court to take into account the Pre Sentence and the Means Assessment Reports of the prisoner which I have read and noted the prisoner is financially sound because he has savings with the Teachers Savings and Loans Society and would have no difficulty to pay a fine or further compensation if ordered by the Court.
    
20. I noted with great care on what the victim and her father said in their statement where they say that they do not seek a custodial sentence but rather that the prisoner be ordered to pay further compensation. I noted this with great care because the prisoner had violated the law of the State and the Court has discretion to accept such proposal.
    
21. Mr Potoura submits that should a custodial sentence be imposed on the prisoner the Court should suspend the sentence wholly taking into account the mitigating factors and the remorse expressed by the prisoner, the prisoner being a first offender, no physical injuries sustained by the victim, no weapons used and also the victim and her parents pleaded for a non custodial but for more compensation to be paid to the victim.
    
22. Finally Mr Potoura submits the Court should exercise its discretion in Section 19 of the Criminal Code.
    

Responses by State

23. Mr Rangan referred the Court to the case of The State –v- Joseph Ureap CR. 292 OF 2010. Sawong J. This is a case of a 40 year old man who sexually penetrated his own daughter who was at the age of 14 years. He repeatedly continued the offence over a period of three years.
    
24. The similarity in both cases is the existence of a relationship of trust between the prisoner and their victims. In the present case the relationship between the prisoner was of a teacher and student.
    
25. In Joseph Ureap (supra) it was a father and daughter relationship and falls in the case of The State-v-Penias Mokei (No 2) (2004) N2635 where the relationship is very close.
    
26. In my view the present case does fall in the serious case as well because the prisoner being a teacher knew that such a relationship existed between him and the victim as well as the other students of Billy Memorial Primary School. It was a relationship between a professional teacher and a student.
    
27. Sexual penetration of children under the age of 16 and 18 under Section 229E attracts a maximum sentence of 15 years imprisonment.
    
28. The Criminal Code (Sexual Offences and Crimes against Children) Act was enacted by the Parliament to protect children under the age of 12, 16 and even 18 years.
    
29. Sexual penetration offences have been committed with or without violence. It is even committed in the homes by known and close relatives and appears to be creeping out into our schools and must be deterred.
    
30. The prisoner was not a stranger to the victim. They knew each other very well. The prisoner was a teacher and taught at the school where the victim was a student.
    
31. I agree with his honour Canning J in the case of The State-v-Penias Mokei (No 2) (2004) N2635 where he says: "If relationship between the accused and the victim is very close then the most serious breach of trust, authority and dependency it becomes and the higher the penalty should be."
    
32. Where the relationship of trust exists between a teacher and a student and abused by the teacher, it calls for tougher punitive sentences as deterrence because this relationship of trust also exists between the parents who send their children to school each day.
    

Guideline on sentencing

33. The guideline on sentencing is well settled in our jurisdiction in the case of Rex Lialu v The State [1990] PNGLR and is: "Sentence in any given case will depend on its own peculiar facts.... the Court ought to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty". I am bound to follow this principle.
    
34. I have agreed on matters that have come before me and again in the present matter that maximum prescribed penalties are reserved for the worst category of cases and for our purpose is reserved for the worst type of sexual penetration cases.
    
35. This was settled in the case of Goli Golu v The State [1979] PNGLR at page 653 and re stated in the case of Avia Aihi v The State (NO3) [1982] PNGLR 92 at 96 and on a number of cases after where the issue that whether an offence falls in the worst type of case and sentences have been put before the courts for consideration.
    

Address to the Prisoner

36. You admitted that you sexually penetrated Kelina Kivung however you told the Court that at the time you sexually penetrated Kelina Kivung you reasonably believed that the victim Kelina Kivung was over 18 years old.
    
37. Having heard the evidence, I found you guilty and convicted you of sexual penetration of Kelina Kivung. I did so because I did not believe your story. I believed the evidence of Kelina Kivung as well as the documentary evidence tendered to the Court which contained evidence against you. I found the defence you raised was never had by you at the time you sexually penetrated Kelina Kivung. You made that up later. It was a recent invention.
    
38. You told the Court in your statement which was tendered to the Court that when Kelina Kivung came to your house she was very upset about the rumour about you and her being in love with each other.
    
39. You told the Court that you comforted her and treated her like a professional teacher would do. You lied because you did the opposite.
    
40. You did not do that; instead you took her into your room and on to your bed and sexually penetrated her.
    
41. I heard what you told me in your allocutus which I have heard from others who have been convicted of the same crime that you were convicted of.
    
42. I also heard what your lawyer told me to take into account in order to consider the appropriate sentences for you which were the mitigating factors and your personal background. I also heard what the State lawyer said about the sentence this Court should impose on you.
    
43. You sexually penetrated Kelina Kivung on the 8th of April in 2010 when she was under 18 years old. She was one of your students at Billy Memorial Primary School. There is no doubt that there existed between you and Kelina Kivung a relationship of trust, a teacher and student relationship. You abused that trust she had in you. It's gone.
    
44. I agree with his honour Canning J in the case of State-v-Penias Mokei (No 2) (2004) N2635 where he says: "If relationship between the accused and the victim is very close then the most serious breach of trust, authority and dependency it becomes and the higher the penalty should be."
    
45. In the present case the prescribed maximum penalty is 15 years imprisonment. I can sentence you to 15 years or less. I also have wider powers under Section 19 of the Criminal Code to consider other penalties such as a fine or place you on Good Behaviour Bond. Although the offence you committed is not the worst category of sexual offences, it is still a serious crime. I consider a custodial punitive deterrence sentence is appropriate for your case.
    
46. The prisoner is sentenced to 10 years imprisonment less the pre trial period of three (3) weeks and four (4) days.
    
47. I deduct 2 years from the balance of 9 years 11 months 3 days, taking into account the prisoner had paid K2, 500.00 as compensation to the victim and family thus leaving the balance of 7 years 11 months 3 days.
    
48. I further deduct 2 years from 7 years 11 months 3 days on condition that the prisoner shall pay 50 fathoms of Tolai traditional money and K 500.00 in cash to the victim on the 30th of April 2013 thus the balance is 5 years 11 months 3 days.
    
49. The prisoner shall serve 5 years 11months 3 days.
    
50. Should the prisoner fail to pay the 50 fathoms of Shell Money and K500.00 on the 30th of April 2013 he shall serve 7 years 11months 3 days.
    
51. I order that the payment of the 50 fathom of Tolai traditional money and K500.00 cash shall be witnessed by Ms Miriam Ronald of Probation Office, Kokopo on the 30th of April 2013.
    

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Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Prisoner