N5767

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.645 OF 2014

THE STATE

V

NANAS LIBAI

Kibil-Molot: Lenalia, J.
2014: 25th June, 8th & 15th July, 15th August & 5th September
 
 CRIMINAL LAW – Sexual offences – Sexual penetration of a girl under the age of 12 years – Victim was age 11 years at time of sexual penetration with fingers – Guilty plea to one count of sexual penetration – Factors for consideration – Criminal Code (Sexual Offences and Crimes Against Children) Act 2000, s.229A(1) 

CRIMINAL LAW – Sentencing trends on charges of similar nature – Victim age 11 years at the time of sexual penetration – Prisoner was 67 years old – Sentence.

Cases cited.

Acting Public Prosecutor-v-Clement Maki and Tom Kasen (1981) SC 205
State-v-Pennias Mokei (No 2) (2004) N2635
State-v-Eddie Trosty (2004) N2681
State-v-Biason Benson Samson (2005) N2799
State-v- Ndrakum Pu-Uh (2005) N2949
State-v-Thomas Angup (21.4.05) N2830
Stanley Sabiu-v-The State (27.6.07) SC866

Counsel:

Mr. L. Rangan, for the State
Mr. P. Kaluwin, for the Accused

5th September, 2014

1. LENALIA, J: The prisoner is charged with one count of sexual penetration of an underage girl. This is an offence contrary to s. 229A (1) (2) (3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. After he was arraigned, he pleaded guilty to the charge. The following is the current status of the law on the Section charged.

2. For purposes of the following discussion, I quote the above section including subsection (3) which provides for the maximum penalty in cases aggravated by a victim who was by August last year (2013) was 11 years under prescribed limited age of 12 years old and where there was an existing relationship of trust, authority or dependency as defined by s.6A (1) and (2) of the Act. Section 229A (1) (2) and (3) states:

"(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime. 

 Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life." (Emphasis Added) 
 
3. The prisoner's case falls under Subsection (1) (2) and (3) of the above provision. This is because, the section provides for two circumstances of aggravations. First, Subsection (2) says that, where an offence under subsection (1) is committed with a girl under the age of 12 years, the highest penalty is life imprisonment. If such offence involves breach of trust, authority or dependency, it carries the same maximum as Subsection (2).
 
4. The brief facts to which the prisoner pleaded guilty to reveal yet a shocking experience of the little girl age of 11 years when she was sexually abused. The brief facts show that, on 28th March 2013 at Watara village, on the Duke of York Islands, Duke of York LLG, Kokopo District, ENBP, the prisoner called the victim into his fementry and there he sexually touched her by manipulating her vagina with his fingers. The victim, Sharon Allan said that after trying to push his fingers in and out of her vagina, the prisoner let her go.

5. The facts show that, the practice between the two had been on for some time. It is believed that the victim may have contributed to this crime according to the statement of the prisoner. When the victim was medically examined on 21st August 2013 at Molot Health Centre, the victim revealed that she had been abused nine times by the prisoner by the same process of sexual toughing. There is no explanation as to why there seemed to have been persistent sexual touching of about nine times. The facts reveal that the victim can be partially responsible for what occurred to her. 

6. The statement by the prisoner reveals the victim was partially responsible for what was done to her. The prosecution says that at that time, the prisoner breached the trust reposed on you a grandfather (bubu) of the victim. 

Addresses on sentence

7. In allocutus, the prisoner said, he is sorry for what he did to the victim. He said sorry to his community, police and court. He begged for forgiveness from the Almighty God. He asked the court to consider his previous good character and requested for mercy from the court. He said in his 67 years of his life he has never been to court and has been a community leader for over the past years. 

8. Mr. Kaluwin of counsel for the prisoner urged the court to consider the following mitigations:

•	The prisoner's guilty plea,
•	His previous good character,
•	He had paid compensation to the victim and her parents and the manner which almost the whole community was involved and was made to cooperate in arranging compensation which has been partially paid. 

9. Counsel submitted that the prisoner is an elderly person and any term of custodial penalty should not be too crushing on him.

10. Mr. Rangan submitted in the seriousness of the charge of sexual penetration of an under aged girl. A factor which aggravates this case is, the prisoner is an old man and the victim is his granddaughter. Thus the level of breach of trust on this case is very high.

Applicable Law

11. The maximum penalty for the offence of sexual penetration of an underage victim under s.229A (2) (3) of the Criminal Code is life imprisonment. The Parliament fully recognized PNG customs and correctly legislated to address the abuse of trust, authority and dependency by creating definitions for the terms such as "relationship of trust, authority or dependency", and "close blood relative", (see Sections 6A, and 223 (2) of the Act 

12. Sexual abuse in a family setting in this Province or elsewhere has grown out of proportion. I believe this is a direct result of the awareness campaigns carried out by the police and local communities out there who try to assist in making victims aware of the problems of domestic violence and sexual abuse. What is happening in our communities cannot be believed. 

13. Sex is meant to be an act of love between adults like a man and his wife. It can not extend to cover the daughter or son or it must not be something that can be exercised between siblings and adults. The law prohibits sexual abuse of young children. Breaches against the concerned legislation cannot be taken lightly. It is breached against the general will of the people of this country and our customs. Such practices must not be tolerated. 

14. Abusing children within the family circle is very prevalent. Incest and sexual penetration of children is so common and is becoming too prevalent. Little girls became victims of sexual molestation and are being abused at very early age as was the case in the instant case. Sharon Allan was then at the age of 11 years. She is not old enough to get married however she should not be abused by anyone like the prisoner whom the State say, is the granny of the victim. 

15. For a parent to sexually abuse a child of tender age is unimaginable and must not be tolerated in our communities. It is an evil practice that has caused a lot of problems in our societies and must be eradicated at all costs. This is the reason why maximum penalties for any sexual offences should be imposed. I commend both counsels for your worthwhile submission to assist the court decide on an appropriate penalty. 

16. There are three serious aggravations involved in this case. First there was abuse of trust, authority and dependency. There was and is an existing relationship of trust between the prisoner and the victim. That is to say, the breach you caused through the sexual relationship with your bubu (granny) is very severe and in law it is personal treason to your own family.

17. One of the those relevant considerations on cases involving breach of trust
 cases is in The State v Penias Mokei (No.2) (26.8.04) N2635 where if there is an existing relationship of trust, authority or dependency between the accused and the child victim, it is the level of breach of trust. Justice Cannings set out certain considerations which should be considered as a guide to sentencing offenders on charges of sexual abuse under the Act. I have covered some of those factors in this discussion. (See also The State v Sottie Apusa [1988-89] PNGLR 172). 

18. National Court Judges often say that, sexual intercourse with underage girls is so serious. That is why for instance in sexual penetration cases such as in The State-v-Kukubur Walia (17.3.09) Cr.No.883 of 2006, the prisoner pleaded guilty to two counts of sexual penetration of an underage girl, he was sentenced to 8 years for the first count and 6 years for the second count. Those sentences were ordered to be served concurrently. Five (5) years were suspended with conditions including compensation to be made by the parents of the offender. The above matter was a case in this Province as well as the next two following ones. 

19. In The State-v-Waira Nason Tomar (9.10.06) Cr.No.534 of 2005, the offender was charged for sexual penetration of the 14 year old victim. There were two acts of sexual intercourse. Four years were imposed for the first count and three years for the second. Sentences were ordered to be served consecutively. In The State v Thomas Tukaliu (2006) N3026, the prisoner was charged with one count of sexual touching under s.229B (1) CCSOCCA. He was sentenced to 5 years partially suspended. In The State v Pual Nelson (2005) N2844, the offender was charged with a similar offence. He was sentenced to 3 years with one year suspended with condition. So was the case of The State v William Patangala (2006) N3027. It was a case of one count for one act of sexual touching with breach of trust. He was sentenced to 4 years with 3 years suspended. 

20. In the instant case, it is sexual penetration by using fingers to insert into the vagina of the victim. Up to date, I have had a bit of reservation on the legality of sexual touching per se and sexual penetration by insertion of fingers into private part of a victim as was in this case. On the instant case, the prisoner is supposed to have inserted his fingers into the vagina of the victim. Noting the definitions of the term sexual penetration and sexual touching in the definition sections and where the prosecution chooses to lay charges under s.229A for sexual penetration. May be the difference can be highlighted in the next case where the prosecution choose to lay a charge under ss. 229A(1) and 229B of the Code. 

21. Then in The State-v-Paul Wakara (2006) Cr.No.914 of 2006, it was a case where the offender was charged for one count of sexual penetration of a ten year old child. The offender forced the victim into sex. Though no injuries were found, he was sentenced to 10 years imprisonment. In The State-v-John Ritsi Kutetoa (22.3.05) N 2814, the victim was 12 years. The offender was sentenced to 17 years for a similar offence.

22. In The State-v-Peter Lare (2004) N2557 a sentence of 20 years was imposed. The prisoner in that case was an uncle to the victim. The two had a long relationship for about four years over. There was substantial age difference, the prisoner was 40 years while the victim was only 12 years old. The prisoner did not express any remorse to the victim and her parents. The prisoner also infected the victim with a sexually transmitted decease. 

23. In the circumstances of your case, I find from the facts that what was done to the victim may have been consensual on the part of the little victim. If the victim knew of what bad thing was being done to her, why not report to her mother the sooner the better. 

24. On the part of the prisoner, old age would prompt him to be wise in types of situations like what happened between him and the victim. I accept the fact that, sexual intercourse by insertion of his finger into the victim's private part may have been consensual. I consider your guilty plea to this serious charge. I also considered your statement in allocutus and the submission by your lawyer on mitigation. I have also considered the submission by the State Prosecutor on the serious nature of this offence. 

25. The pre-sentence report is quite exhaustive. About 15 community leaders' representatives were available during the reconciliation ceremony. They included the Hon. Henry Libai, President of the Duke of York L.L, his Vice President Hon. John Mark. Ward Members of Nambual, Raputput, Pirtop, and Watara Messer. Magel Kono, David Kavanamur, Painemi Selton and, John Pitai. The Village Court representatives included the Vice Chairman of Mioko Village Court Mr. Kivung Rongot and the Chairman of the Nabual Village Court, Mr. Peter Tati. Watara Paramount Chief Mr. Jerry August was also present. 

26. The Church representatives included, Pastor Glean Tare, Elder Ben Libai, and Minister Ben Apet all of Duke of York SDA Church. Other community representatives were present like community elder Mr. George August, Youth Representative Kepas August the Kibil Nursing Sister In-Charge Mrs. Lait Amos. 

27. I have considered comments by those five who attached supportive statements. The pre-sentence report containing reports of those who commented show that an amount of K4, 538.00 was already paid as 'bel-kol' payment. The Ward Councillor of Watara Mr. John Pitai confirmed that on 24th October 3013, over 200 people gathered to witness the reconciliation ceremony at Watara village. Such ceremony took place between the family of the prisoner and those of the victim. 

28. The victim's father, Mr. Allan Waigoma confirmed on his statement dated 24th October 2013 that, he accepted part payment of K4, 528.00. The total compensation demand was put at K7, 000.00. The total cash and kind that was received by the victim's parents and family was K3, 528.00 cash, and shell money worth K890.00 and uncooked food worth K100.00. Mr. Waigoma said, he and his family members accepted this part payment. There remains an amount of K2, 472.00 still to be paid. 

29. I have considered the prisoner's guilty plea. I have also considered counsels submissions on mitigations and aggravations. I have also considered the terms of the pre-sentence report and the means-assessment reports. I thank the Community Correction office for preparing the two reports. 

30. I agree with the Supreme Court in Stanley Sabiu v The State (2007) SC866 that a trial judge determines an appropriate penalty in each case depending on the merits of each case. The Court in that appeal said: 

"We are of the view that the above are useful guidelines to be considered in sentencing for child sexual penetration cases. We emphasis however that it is for the trial judge to determine the sentence to be imposed after having regard to all of the circumstances of the particular case before him."

31. On all the cases that I have referred to above, they were cases where offenders' ages were below 50 years. On the instant case, the prisoner is 67 years of age. I take the age factor into account. A apart from that, I also consider that this case warrants a suspended sentence with conditions to be imposed. He is sentenced to 7 years imprisonment. This sentence is fully suspended on the following conditions:

1.	Today, you shall enter into recognizance and keep the peace and be of good behaviour for 2 years. 

2.	You shall further pay an amount of K K2, 472.00 to complete the compensation agreement reached between the family of the victim and you and your family. 

3.	You must not go near the victim and must keep away from her and abstain from talking to her unless members of the families are around with them. 

4.	You are given six months to pay for the outstanding amount.

5.	Such payment will be conducted in the presence of the community leaders including Ward Councillors, Village Court Magistrates and Church Representative. 

6.	In the event that you commit any offence, be it summary or indictable, the sentence shall be fully and automatically reactivated.

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