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State v Dominic [2016] PGNC 78; N6290 (13 April 2016)

N6290

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1400 OF 2015

THE STATE

V

PAUL DOMINIC

Palmalmal: Lenalia J.
2016: 6^th, 11^th& 13^th April

CRIMINAL LAW – Sexual offence – Persistent sexual abuse of victim under the age of 16 years for over a period of time – Victim age 15 at time of

offence – Accused was 22 years of age – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.s.229D (1) (6).

CRIMINAL LAW – Persistent sexual abuse the victim under the age of 16 years – Victim age 15 plus years or even before this age – Serious consequences –Appropriate penalty – Term of imprisonment fully suspended.

Cases cited:

Maima v Sma [1972] PNGLR 49
Stanley Sabiu v The State (2007) SC866
The State-v-Biason Benson Samson (2005) N2799
The State v Kila Depit (19.6.2015) Cr. No. 456 of 2015
The State v Melton Moses (22.3.2016) Cr. No.641 of 2014
The State-v-Ndrakum Pu-Uh (2005) N2949
The State v Paul Save (11.7.2014) Cr. N0. 1096 of 2013
The State-v-Penias Moke (No.2) (2004) N2635

Counsel:
Mr. L. Rangan, for the State
Ms. J. M. Ainui, for the Accused

13^th April, 2016

1. LENALIA J: The prisoner pleaded guilty to one count of persistent sexual abuse of the victim under the age of 16 years contrary to s.229D (1) (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.
   

Facts

2. The facts to which the prisoner pleaded guilty to are that, at Pomai village, West Pomio, East New Britain Province, during the month of August 2015, the prisoner in three separate occasions, he sexually penetrated Irene Michael. The prisoner revealed in his confessional statement dated 2^nd September 2015, that on the date charged on the indictment that was 26^th of August 2015 was not the first time for the two of them to have sex. Their relationship had been on for some time and sexual intercourse had occurred several times before she reported. The terms of the confessional statement is such that, the acts of sexual intercourse were consensual. He was arrested and charged for persistent sexual abuse.
   

Addresses on Sentence

3. In his address on allocutus, the prisoner said, he is sorry to the victim and their community. He said sorry to the court. He asked for leniency on sentence.
   
4. The defence counsel, Ms. Ainui addressed the court on following mitigations and asked the court to consider them on sentence:
   
   • ✓ The prisoner’s guilty to this serious charge.
   • ✓ His co-operation with the police investigating officers and the admission on the record of interview.
   • ✓ He showed remorse in allocutus.
   • ✓ His previous good character.
     
5. Counsel submitted, this was a case where the victim was under the age of 16 years and the court should consider such factors on sentence. She submitted that this is appropriate case where the court should consider a non-custodial penalty with orders for compensation.
   
6. Mr. Rangan submitted that the offence committed by the prisoner is serious as it carries the maximum penalty of life imprisonment. He addressed the court on the issue of compensation saying that, compensation should be considered. On this case, submitted that the victim was at the age 15 years while the offender was about 22 years. Mr. Rangan referred to one or two cases where terms of imprisonment imposed were high because of the breach of trust.
   

Applicable Law

7. Persistent sexual abuse is an offence against s.229D (1) (6) of the Criminal Code Sexual Offences and Crimes Against Children) Act. The crime is punishable by the maximum of 15 years. If the crime is committed with circumstances of aggravations as defined in Subsection (6), of the section charged, the maximum penalty is life imprisonment.
   
8. The facts reveal that, the sexual intercourse took place more than two occasions. Pursuant to s.229D (6) of the Code. Sex took place more than two occasions. I refer to the definition provided under the section charged. The Criminal Code defines the crime of persistent sexual abuse of underage victims. The above Section states:
   

“(1)A person who, on two or more occasions, engages in conducting relation to a particular child that constitutes an offence against this Division, is guilty of the crime of persistent abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) For purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(a) the court must be satisfied beyond reasonable doubt, that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and

(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be satisfied about the dates or the order of those occasions.

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and liable, subject to Section 19, to life imprisonment.”

(Emphasis added).

9. There are a number of serious aggravating circumstances involved on this case. They include:

• the victim was under the age of 16 years, and
• it was a case where one or more occasions of involved sexual penetration, in terms of sexual intercourse,
• there was the age gap of 17 or so years,
  

10. The prisoner’s case falls under the above definitions. He committed the crime of persistent sexual abuse by sexual penetration on the Grade 6 girl studying at Kaiton Primary School, West Pomio.
    
11. The concern law does not prescribe the death penalty but instead places the maximum at life. The offence that you committed was not a one off incident. You abused the victim for a period of time. In considering circumstances of a particular case, the court must consider the circumstances under which the crime of sexual nature was committed.
    
12. In The State-v-Biason Benson Samson (2005) N2799 Cannings; J restated a list of considerations for sentencing in respect of sexual abuse of children either by penetration or otherwise. He set such guidelines earlier in The State-v-Penias Moke (No.2) (2004) N2635.

13. I re-sate those considerations and they include issues such as:
    

(a) Is there only a small age difference between the offender and the victim?
(b) Is the victim not far under the age of 16 years?
(c) Was there consent?
(d) Was there only one offender?

(e) Did the offender use a threatening weapon and not use aggravated physical violence?

(f) Did the offender cause physical injury and pass on a sexually transmitted disease to the victim?

(g) Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?
(h) Was it an isolated incident?
(i) Did the offender give himself up after the incident?

(j) Did the offender cooperate with the police in their investigations?

(k) Has the offender done anything tangible towards repairing his wrong such as offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?

(l) Has the offender caused further trouble to the victim or the victim’s family since the incident?
(m) Has the offender pleaded guilty?
(n) Has the offender genuinely expressed remorse?
(o) Is this his first offence?

(p) Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?

(q) Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

14. I adopt the above considerations and apply them to the circumstances of the instant case. The above considerations are useful guidelines to be considered on sentencing for child abuse cases. On the instant case, the offender was 22 years while Irene was at the age of 15 years. There was the age difference of 17 years between the two of you. The court is vested with discretion to impose a term of years on the offender after considering all the merits or demerits of each case.
    
15. On the sentencing discretion of the National Court, the Supreme Court in Stanley Sabiu v The State (2007) SC866 reviewed suggested guidelines for sexual penetration cases in the cases of The State-v-Pennias Mokei (No 2) (2004) N2635 and The State-v-Ndakum Pu-Uh (2005) N2949 the Supreme Court in Stanley’s 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.”

16. This court has referred to such warnings in many cases. For instance, in The State v Paul Save (11.7.2014) Cr. N0. 1096 of 2013, this court sentence the prisoner to 18 years for a similar crime committed against his step daughter who was at the age of 13 years. It was aggravated by breach of trust, authority and dependency and a great age difference.
    
17. In The State v Melton Moses (22.3.2016) Cr. No.641 of 2014, just last month the offender lured the victim with money. On the first time, he produced a K50.00 note to the victim. He took her into a banana patch and sexually penetrated her. On the second time he did the same thing using K100.00. After sexually penetrated her, he never gave any money to the victim. He sexually penetrated the victim four times. It was a case of persistent sexual abuse. He was sentenced to 14 years.
    
18. In The State v Kila Depit (19.6.2015) Cr. No. 456 of 2015, a case in Kibil-Molot Patrol Post, the offender was charged for persistent sexual abuse of a 9 year old victim. The prisoner was found guilty after a trial. He has abused the victim for some time until the victim’s brother and elder Oscar Mano and an elderly person Tommy Irima found them out. He was sentenced to 20 years imprisonment.
    
19. The prisoner’s case falls into that category. The maximum penalty prescribed by s.229D (1) (6) is life imprisonment. As I have stated earlier, the Court has discretion to impose a term of years. Anyone caught committing such crime with underage child is subject to law. In cases where there has been prior relationship between a victim and an accused like on the instant case, it is not a defence in law. Legislature has spoken because the Parliament decided to protect young victim from any form of abuse which is now reflected in the Amendments to the Criminal Code. This applies even in cases where two parties have had affairs, and sex had occurred, they are caught by the above Section.
    

Pre-Sentence Report

20. I consider the terms of the Pre-Sentence Report. The Ward Member for Pomio, Mr. James Lutkal, commented that the offender has never committed any crimes before. He said, he is an active youth member who involves himself in community work and he confirmed that the offender and the victim have had a long time affair which was not known by members of the offender’s and the victim’s families.
    
21. An Elder of the Catholic Church, Mr. Lukas Omli expressed similar comments as the Ward Member and suggested that, if the offender is sentenced to do community work, he is willing to supervise any community work orders if given to the prisoner.
    
22. The victim was contacted but she was really evasive. She denied three times having any sexual intercourse with the offender. On the third time she admitted sex. She said, she is responsible for what happened because she usually sent texts messages to the offender after which they used to meet and tell stories. The parents of the victim Mr. Michael Telelea and Catherine Laukalrea commented that the two had been having a relationship before they were found out. They asked for compensation.
    
23. I consider the prisoner’s guilty plea, he had expressed remorse, he is a first time offender and he is a youthful offender. I consider the fact that sexual intercourse was consensual. It had continued for some time before it was found out. I consider a term of imprisonment ought to be imposed. I consider the principle that the maximum penalty ought to be reserved for the worse type case: Maima v Sma [1972] PNGLR 49.
    
24. On the circumstances of the instant case, I consider that the appropriate penalty should be a sentence of 6 years imprisonment. The prisoner is sentenced to 6 years imprisonment. The court suspends the whole sentence of the following conditions:
    
    1. He shall pay compensation in the sum of K1, 000.00.
    2. K600.00 of that sum shall be paid to the parents of the victim.
    3. K400.00 of the sum ordered shall be paid to the victim.
    4. He shall also pay One (1) fathom shell money to the parents of Irene.
    5. He shall keep the peace & be of GBB for 2 years.
       

_____________________________________________________________

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