N6422
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 48 OF 2013

THE STATE
V
ANDREW PATAPATA

Alotau: Toliken, J.
2016:24th June

CRIMINAL LAW – Sentence – Persistent sexual abuse – Plea – Abuse of grand-daughter by 74 year old grandfather – Abuse consisted of sexual penetration – Mitigating factors considered – First time offender – Guilty plea – Advanced age of 74 – No pregnancy or STI – Substantial compensation including 40 ha of customary land – Aggravating factors – Serious breach of trust – Penile penetration including ejaculation into victim’s vagina  – Disruption to victim’s education –  Huge age difference of 55 years – Prevalent offence - Criminal Code Ch. 262; s 229D(1)(6). 
SENTENCE – Objects of sentencing sexual offenders – Deterrence and punishment - Separating abusive adult from child victim an important object – Necessity to protect welfare and interest of child victim - Appropriate sentence – 10 years less time in custody –  Suspension – Whether appropriate – Whole suspension as offender no longer posed danger to victim who has since married.      

Cases Cited:
Avia Aihi v The State (No. 3 [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 615
Public Prosecutor v Don Hale (1998) SC 564)
Saperus Yalibakut v The State (2006) SC 890 
Stanley Sabiu -v- The State (2007) SC 866
The State -v- Biason Benson Samson (2009) N2799
The State v Billy Paulo (2013) N5286
The State v George Rousela; CR 260 of 2013 (unreported and unnumbered judgment dated 08th of August 2013) 
The State v John Taune ; CR No. 975 of 2015 (Unnumbered judgment dated 12th May 2016)
The State -v- Pennias Mokei (No: 2) (2004) N2635
The State v Willie (2012) N5170

Counsel:
H. Roalakona, for the State
P. Palek, for the Prisoner

SENTENCE

24th June, 2016

1.	 TOLIKEN J:	On 16th June 2016, the offender, Andrew Patapata, pleaded guilty to one count of persistent sexual abuse  of a child under the age of 16 years with a circumstance of aggravation, namely,  that the abuse involved  penetration, an offence under Section 229D (1)(6) of the Criminal Code Ch. 262.

2.	His charge was that –
“… between the 01st of March 2011 and the 31st of March 2011, on two or more occasions,  [he] engaged in acts of sexual penetration with AM, a child under the age of 16 years.”
3.	The following facts were put to him on arraignment.  On a Saturday, early in the month of March 2011, around midday, the offender and the complainant were working in the garden. The offender asked the complainant to have sex. She agreed and the offender sexually penetrated her by inserting his penis into her vagina.

4.	Two weeks later, still in the month of March, the offender sexually penetrated the complainant again in the garden. And finally, some days after the second incident, the offender met the complainant near a bridge close to their house and sexually penetrated her yet again by inserting his penis into her vagina. 

5.	At all material times the complainant was under the age of 16 years, having been born on 3oth of May 1996. 

6.	I perused the committal court depositions and was satisfied that the evidence was sufficient to support the charge and accordingly convicted the offender. 

7.	The offence of persistent sexual abuse of a child under the age of 16 years normally carries a maximum penalty of 15 years. However, where the abuse involves an act of penetration, the offender can be sentenced to life imprisonment. (Section 229D (1) (6) of the Code)

8.	“Penetration” is defined by Section 6 of the Code as the introduction, to any extent, by a person of his penis, or an object or a part of his or her body into the vagina, anus or mouth of another person.

9.	The maximum penalty though is usually reserved for the worst instances of a particular offence. Each case is to be treated on its own set of circumstances and facts. The court also has discretion under Section 19 of the Code to impose a sentence below the maximum penalty. So, where the maximum is life imprisonment the court can impose a term of years instead. These are well settled principles of sentencing. (Goli Golu v The State [1979] PNGLR 615; Avia Aihi v The State (No. 3 [1982] PNGLR 92)

10.	The offender is a 74 years old subsistence farmer and comes from Kelakela village, Alotau District, Milne Bay Province. He is married with six grown-up children, one of whom is the complainant’s father.  He was educated up to Grade 6 only, and is a Roman Catholic. Prior to being granted bail the offender spent 3 months in custody.

11.	When asked to address the court why he should not be punished for his offence, the offender had the following to say –
“I made kaikai with pig and gave 40ha of land including oil palm blocks [to the complainant]. And final one, I would like to make kaikai again and put K500 on top. That is all.” 
12.	Mr. Palek submitted for the offender that the complainant is the offender’s biological granddaughter – the daughter of one of his sons. Counsel said the three acts of sexual penetration were consensual, and no weapons or threats of violence were involved. Counsel conceded that there was a huge age difference between the offender and the complainant, and there was also a serious breach of trust. Despite that, Counsel submitted there are substantial mitigating factors which should warrant a sentence 10 – 15 years which should then be either wholly or partially suspended. 

13.	The offender’s Pre-sentence Report, which was well balanced, having incorporated the views of the complainant and her parents, recommended a term of probation for the offender. The report confirms that the offender had indeed reconciled with the complainant and had paid compensation comprising of the following:

1.	38 ha of customary land
2.	2 x ha of planted oil palm block
3.	2 x baskets of  taro @ K90.00 each 		-  K180.00
4.	4 x bunches of bananas @ K25.00 			-  K100.00
5.	1 x live male @ K500.00				-  K500.00
Total value apart from land			-  K780.00

14.	The report indicates that the offender intends to make a final reconciliation with the complainant in which he will make a cash payment of K500.00 to her. 

15.	The report, however, chronicles the effect of the offence on the complainant.  At the time of the offence she was doing Grade 5 at Hagita Primary School.  Her education was abruptly interrupted when she was withdrawn for school. The report does not say if she ever continued with her education. She suffered silently during the period of abuse and out of shame never reported the matter. She suffered shame when her incestuous relationship with her grandfather became known in the Kelakela and Hagita communities. And as a result she was forced to leave her parents and temporarily lived with relatives at Rabe and Magisubu. The complainant is now married and has started a new life. 

16.	The complainant and her parents have accepted the compensation, and have intimated their desire for the offender to be placed on probation because they are of the view that prison will not be good for him because of his advanced age.

17.	Ms. Roalakona, for the State, submitted that this is a case that should warrant an immediate custodial sentence of between 12 – 18 years. This is because there was a serious breach of trust, there was a huge age difference of 55 years between the offender and the complainant, and because of the prevalence of this offence. Such a sentence must primarily be for personal and general deterrence.

18.	The offence under consideration is among a string of offences that were brought into the Criminal Code by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, largely in response to increasing incidences of abuse of all sorts against children, but also in tandem with the country’s obligation to the United Nation’s Convention on the Right of the Child which our Parliament had ratified.

19.	 These amendments introduced very stiff penalties which include life imprisonment for cases where circumstances of aggravation are present. Abuse of children involving sexual penetration, is a deplorable and despicable act which is exacerbated when the abuser is someone who stands in a position of trust, authority or dependency in respect of the child. Children must be protected from all sorts of abuse so that they grow up in an emotionally stable, loving and protective environment.  That is the rationale behind this genre of offences.

20.	I now need to consider the objective seriousness of the offender’s offence, in other words, his degree of culpability.  This will not only assist me in assessing whether or not this is a worst instance of persistent sexual abuse, but also in setting a starting point. 

21.	In determining the seriousness or otherwise of the offence, I need to consider the harm done to the complainant or harm which the offender ought to have reasonable foreseen as being done to her and the offender’s level of culpability. 

22.	The Supreme Court in Stanley Sabiu -v- The State (2007)  SC 866, adopted what Cannings J. considered in The State -v- Pennias Mokei (No: 2) (2004) N2635 and The State -v- Biason Benson Samson (2009) N2799, to be relevant factors when considering an offender’s culpability. These include – 

(1)	The age difference between the offender and the victim;
(2)	How far below the age of 16 years the victim was;
(3)	Whether there was consent;
(4)	The number of offences;
(5)	Whether the offender used a threatening weapon or aggravated physical violence;
(6)	Whether the offender cause physical injury or infect the victim into a sexual transmitted infection;
(7)	Whether there was existing relationship of trust, dependency or authority and if there was, how close; 
(8)	Whether it was an isolated incident and from time to time in each particular case and whether the offender impregnated the victim;
(9)	Whether the offender surrendered after the incident; 
(10)	Whether he co-operated with police;
(11)	Whether he has done anything tangible such as offering compensation to the victim of her family or apologizing or reconciling with them personally or publicly;
(12)	Whether he has caused further trouble to the victim and her family since the incident;
(13)	Whether he has pleaded guilty;
(14)	Whether he has shown genuine remorse;
(15)	Whether he is a first time offender;
(16)	Whether he can be regarded as a youthful offender or his personal circumstances are such that they should mitigate the sentence;
(17)	Whether there are other circumstances of the incident or the offender that warrant mitigation of the head sentence.
23.	On the issue of harm to the complainant, I find the offence consisted of penile penetration of the complainant’s vagina. It also resulted in psychological injury to the complainant who had to live in shame because of the incestuous relationship. There was, however, no physical harm to the complainant.

24.	As to culpability, there was a huge age difference between the offender and the complainant. There does not seem to have been any pre-planning involved, but the offender took advantage of the complainant’s immaturity, particular so, at a time when she was experience hormonal changes in her body when sexual impulses brought on by puberty would have been coming on strongly. There was, however, no force, violence or threats of violence involved, nor was the complainant induced by alcohol or other substances to secure her submission to the act. The offender acted alone, but there was a close relationship of trust. The acts were consensual and the complainant was a mere two months away from the age of consent.

25.	The presence of these factors shows a medium to high level of culpability, but it cannot be considered as a worst instance of the offence. I would fix a starting point of 11 years. 

26.	Let me now consider the offender’s mitigating and aggravating factors. First, the mitigating factors:
•	The offender pleaded guilty to the charge
•	He is a first time offender
•	He did not use force, weapons or threats of violence to secure the complainant’s submission (Saperus Yalibakut v The State (2006) SC 890 applied to his benefit)
•	The acts of sexual penetration were consensual.
•	The complainant was two months shy of the age of consent
•	No physical injuries were suffered by the complainant nor did she become pregnant or get infected with a sexually transmitted infection.
•	The offender is remorseful and has demonstrated this by reconciling with the complainant and paying compensation which included 40 ha of customary land 2ha of which are planted with oil palm.
•	The offender of the advanced age of 74.
•	The offender is of previous good character, but this fact is vitiated by the seriousness of his offending and close relationship with the complainant. 

27.	Against him, though, are the following aggravating factors:
•	There was a substantial age difference of 55 years between the offender and the complainant.
•	There was a serious breach of trust, authority and dependency because of the closeness of the relationship. The offender is the paternal grandfather of the complainant.
•	The offence consisted of penile penetration, where, the offender obviously ejaculated into the complainant’s vagina, greatly increasing her changes of unplanned and unwanted pregnancy, not to mention the transmission of a sexually transmitted infection including AIDS.
•	The offence resulted in the premature end to the complainant’s education.
•	This is a very prevalent offence.
28.	It is appropriate at this point consider a few cases to see the kind of sentences which have been impose for this offence. I would venture to consider only a few cases of my own.

29.	In The State v Willie (2012) N5170, I sentenced the prisoner to 10 years imprisonment. The offender there pleaded guilty to persistent sexual abuse involving penile penetration. The indictment also pleaded abuse of trust. However, the facts did not show that the offender stood in position of trust and so this was abandoned by the prosecution. The prisoner was a first time offender, he did not force or use violence, he co-operated with the police, did not impregnate or infect complainant with a sexually transmitted infection, there was some element of consent and the complainant was not too far below age of consent. The aggravating factors were that the abuse consisted of sexual penetration and the prevalence of the offence. 

30.	The State v Billy Paulo (2013) N5286; There, the offender pleaded guilty to the persistent sexual abuse of his biological daughter. The abuse started with the manual manipulation of the child’s genital area when she was but 7 years old. The abuse continued until the child reached the age of 11 years when the offender first sexually penetrated her. The offender was 42 years old, and hence,  there was a huge age difference. The abuse went on for 4 years and whilst there was no use of violence or force, there was a serious breach of trust and I felt that the offence was serious enough to warrant a very stiff sentence. In that case I commented that while punishment or retribution and deterrence were important objects in sentencing sexual offenders, separating children from abusive adults, including parents and other relatives, is an import object for the protection of the children, which is of paramount importance. I sentence the offender to 20 years imprisonment. No part of his sentence was suspended.

31.	In The State v John Taune ; CR No. 975 of 2015 (Unnumbered judgment dated 12th May 2016), I sentenced the offender to 17 years imprisonment for persistently sexually penetrating his 13 year old step-daughter over 2 days. There was some element of consent, but since the offender and the complainant were basically living together in one house, I felt that it was necessary to separate the complainant from the offender, who had expressed a desire to be allowed a non-custodial sentence so that he can resume his life with the complainant’s mother. 

32.	Where an abused child runs the risk of being exposed to an abusive parent, relative or any adult for that matter, it is incumbent upon the sentencing Court to minimize exposure by first imposing a long enough sentence to allow the child to grow up without the offender around, and by not suspending any part of the sentence. 

33.	In The State v George Rousela; CR 260 of 2013 (unreported and unnumbered judgment dated 08th of August 2013), a case involving the sexual touching of an 8 year old girl by his step-father, I said in the context of  suspension of a sentence – 
4. When considering whether or not to suspend a sentence the court 	should, among other things, consider the following - 
(i)	the nature of the relationship between the victim and the offender;
(ii)	the comparative ages of the victim and the offender;
(iii)	the capacity of the child’s mother ( and other relatives for that matter) or State agencies to protect the child from further abuse by the offender;
(iv)	the genuineness or otherwise of any remorse expressed by the offender;
(v)	whether such remorse has been demonstrated by a clear evidence of turning about (a complete change) by the offender;
(vi)	the  possibility or likelihood of re-offending by the offender.
5. Where the relationship is that of step-father/step-daughter or between biological or adoptive father and daughter, the likelihood of repeated offending remains very real and high and the court would be failing its duty to protect an abused child if it 	suspends sentence without considering the above matters.  The best interest of the child would be best served if the offender were to be incarcerated for a sufficiently long period of time.
34.	So what should be an appropriate head sentence for the offender in the instant case?

35.	Well, the sentence must be one that, that should principally deter the offender and other as well. This offence, as well as other sexual offences, is too prevalent in this province. There seems to be a groundswell of sexual offences generally, but what is alarming is the increasing incidence of sexual abuse of girls. A disturbing trend is that these abuses are often perpetrated by adults who stand in position of trust in respect of these children.

36.	The offender here, is the paternal grandfather of the complainant, somebody whom the complainant and her siblings looked up to provide them guidance and filial love. Children do not normally expect their grandparents to abuse them in the manner in which the offender had abused the complainant. He took advantage of her, at a time when she was experiencing hormonal changes in her body, which, as a biological fact, spiked up her sexual impulses. The fact that the complainant may have consented does not exonerate the offender, because at that age, the complainant knew very little about the consequences of sexual intercourse let alone understand sexuality.

37.	I do take into account the fact that the offender has some strong mitigating factors which would justify some deduction. In particular, I take into account that he is advanced along in years and a long sentence would basically be a life sentence for him. Nonetheless, he deserves a sentence that will deter him so that he does not re-offend against any of his children relatives or any child for that matter.

38.	I take into account that he has reconciled with the complainant and had given away a substantial portion of customary land to the complainant by way of compensation. 

39.	So in the circumstances, I feel that a head sentence of 10 years would be appropriate.  I therefore sentence the offender to 10 years imprisonment. The three months which he spent in custody prior to being granted bail is deducted from the sentence. That leaves a balance of 9 years and 9 months. 

40.	Now, should any part of this be suspended? The offender has a very favourable Pre-sentence Report which recommends probation for him. He thus meets the qualification for the suspended sentence (Public Prosecutor v Don Hale (1998) SC 564)

41.	However, there is another issue - does the complainant need to be protected from the offender? Would a suspension unnecessarily expose her to further abuse by the offender in the terms of the consideration I mentioned in The State v Rousela (supra)?

42.	The complainant is now an adult. She has remarried and is now living a separate life, hopefully, in the solace of a man who genuinely loves and cherishes her. The danger of continued abuse to her is therefore not there, though, there is no saying that the offender may not re-offend against other children. 

43.	For those reasons and because of the offender’s advanced age I will suspend his sentence wholly, and place him on 3 years probation with the following additional conditions –

1.	He will conduct a final reconciliation with the complainant within 3 months from today to be witnessed by the Senior Probation officer, Community and Church leaders and the local Ward Member.
2.	At the said reconciliation he will –
a.	pay K500 compensation to the complainant
b.	he will conclude a written formal contract of sale of the 40ha of customary land which he had previously given as compensation, between his clan and the complainant and her clan, which contract shall be witnessed on his part, by his customary heir and successor in title and an elder from his clan, and on the part of complainant by the complainant and her clan chief or other elder of her clan. The contract shall be signed in the presence of those persons named in condition (1) above.
3.	During the period of probation, he will not remain alone with any girl under the age of 16 years, whether related to him or not.

4.	He will also keep the peace and be of good behaviour especially toward the complainant.
44.	I further order that the prisoner’s bail be fully refunded to him and further that any cash sureties paid by his guarantors be also refunded to them.
Ordered accordingly.  
___________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor    : Lawyer for the Prisoner