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State v Tapin [2017] PGNC 23; N6626 (1 February 2017)

N6626

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.Nos.1086 & 1087OF 2015

THE STATE

V

KATU TAPIN

Kokopo:Lenalia, J

2016:2^nd, 9^th&21^st December

2017:31^st January &1^stFebruary

CRIMINAL LAW – Sexual penetration of the victim under the age of 16 years – Plea of guilty – Sentencing principles – Appropriate penalty – Term on imprisonment considered –Criminal Code (Sexual Offences and Crimes Against Children) Act s.229A(1)

CRIMINAL LAW – Factors for consideration on sentence – Breached of trust – Large age gap – Consideration on legislative intent on increasing penalties for sexual crimes – Victim’s age at time of offence 13 years –Range of sentencing– Principles of sentencing guidelines – Appropriate penalty term of imprisonment considered.

Cases cited:

Stanley Sabiu v The State (27.6.07) SC866
Tau Jim Anis v The State (2000) SC642
The State v EsromTiama (13.4.06) N3054
The State v HimsonLavu (14.7.2014) Cr. No. 1221 of 2013
The State v Peter Lore (20.5.04) N2557
The State v Robin Manuel (No.2) (5.8.2014) Cr. No. 182 of 2014
The State v Thomas Angup (21.4.05) N2830

Counsel:

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

1^st February, 2017

1. LENALIA J: The accused pleaded guilty to one count of sexual penetration of the victim K. R. T. (Keline Rodney Tapin). The offence was committed upon the victim when she was at the age of 13 years. The offender was age 37 or 38 years. The crime was committed while they were residing at Wairiki No. 3 Ward in the Gazelle District.
   
2. The indictment pleads aggravations saying that the offender breached the trust as there was existing relationship of trust, authority or dependency. This is an offence under s.229A (1) (3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act.
   
3. The section under which the prisoner is charged states:

“Sexual Penetration of a Child.

(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.”

Facts

4. The facts show that in the month of November 2014, the prisoner and his family were residing at Tamtavul village at Warongoi, Gazelle District, East New Britain Province. The offender and his family come from Aiwamba village in Menyamia District in Morobe Province Lae. The prisoner and his wife adopted the victim K. R. T while she was a baby because, the victim’s biological mother passed on, and was only survived by her biological father. The prisoner and his wife have been looking after the victim since then until the time the crime was committed.
   
5. During the above period, the victim’s adopted mother Susan Katu went to their home back in their village. In her absence, the prisoner sexually penetrated the victim three (3) times in three different nights during the month of November 2014. The offences were committed in their family house at Tamtavul village. The victim said in her statement that, the offender and the two children where the victim and her brother the offender’s son Paul Tapin were sleeping together in one matrass in their family house.
   
6. On the first night, the prisoner moved over to where the victim was sleeping and sexually touched her vagina and her breast. She protested but the accused was stronger than her and he sexually penetrated her. In those three nights the prisoner moved to where the complainant was sleeping and sexually touched her breasts then on to her vagina and he eventually sexually manipulated her until he sexually penetrated her by inserting his penis into her vagina. She objected but she said in her statement that you were stronger than her and on those three occasions, you overpowered her then inserted you penis into her vagina.
   

Addresses on Sentence

7. In allocutus, the prisoner said, he is sorry for what he did to the victim. He said, this is first time to appear in the National Court and he wants to be placed on good behaviour bond because he has a family to care for.
   
8. Ms. Ainui addressed the court about what should be the appropriate penalty. She asked the court to consider comments by those contacted by the Probation Officer like the prisoner’s wife, the biological father of the victim and the victim. Counsel asked the court to consider the offender the following factors:
   
   • His guilty plea to the serious charge.
   • The prisoner is first time offender,
   • The positive terms of the pre-sentence report,
   • The undertakings by the prisoner to care for his family,
   • The relationship may have been consensual sex,
   • The offender’s plea to pay compensation,
   • If the offender is sentenced, no one will pay for his children’s school fees.
   • A custodial penalty should not be too harsh
     
9. For the prosecution, Mr. Rangan submitted that sexual offences are so prevalent and the offender should be appropriately punished. He submitted that the court should consider the breach of trust involved and said, the court should consider the comments by Margaret Tete. This person is the offender’s sister who commented about the offender’s services to people in their community. He asked the court to consider an appropriate penalty.
   

Application of Law

10. The prescribed maximum penalty under s.229A (1) of the Criminal Code Amended Act is an imprisonment term of not exceeding 25 years. However, note a number of factors about this provision which came into operation in 2003:
    
    • ➢ First, where a child is under the age of 16 years, the maximum penalty available is 25 years,
    • ➢ Secondly, if the child is or was under the age of 12 years, the maximum is life imprisonment subject to s.19 of the Criminal Code.
    • ➢ Thirdly, where the offence is committed with existing relationship of trust, authority or dependency, the maximum penalty is life imprisonment subject to the Courts sentencing discretion under s.19 of the Criminal Code.
      
11. In criminal cases the Court has discretion to impose a term lower that the prescribed maximum penalty of life imprisonment. This authority comes from s.19 of the Criminal Code.
    
12. On the sentencing patterns, the Supreme Court in many cases has set down some general considerations for a sentencing judge to consider when sentencing an offender for sexual penetration of under-aged children: Stanley Sabiu v The State (27.6.07) SC866. The Supreme Court also said in the case of Tau Jim Anis v The State (2000) SC642 that sentencing tariffs in sexual cases ought to be done or approach progressively.
    
13. The sentencing patterns by Judges of this Court under the new Amended provision of the Criminal Code under the new Divisions IV. 2A&2B, and the repeal and replacement of s.347 and its definition show huge leaps in terms of sentences imposed. The issue is what approach ought to be taken when sexual crimes are so prevalent in our societies. In my view, the decision by the Supreme Court in Tau Jim Anis v The State (2000) SC642 for the progressive aspect or approach to sentencing in sexual crimes was made 17 years ago and it is good law.
    
14. Within that period, sexual crimes in this Province and national wide have increased drastically. Young victims as early as six months are being digitally sexually abuse and victims at ages of 6 years are sexually penetrated. (See cases of The State v Bernard Herman (No.2) Cr. No. 288 of 2011 the victim was age 5, The State v Amos SaimonTapi (31.7.2015 Cr. No. 996 of 2015 the victim was 6 years).
    
15. In The State v Taitus Ukil (8.2.2016) Cr. No. 888 of 2014, a case of digital penetration, the complaint was only 3 years. On that case, the crime was committed on 29^th January 2012 at Open Bay Timber yard, Gazelle District, ENBP. By that time the prisoner was working as a welder with Open Bay Timber Company. On the above date, the prisoner had been drinking beer with his friends including Joe Devin, the father of the victim (Melanie Joe). While the victim’s father was busy drinking with friends, the prisoner walked up to where the victim was standing and carried her away to Gaby’s house.
    
16. The father of the victim and other friends started to look for the victim. They came to Gaby’s house and found that the prisoner had put the victim down on the bed and she was naked with the prisoner inserting his fingers in and out of the victim’s vagina. His trouser was down below his knees. The father of the victim carried her away and the prisoner was reported to police and he was arrested and charged. Let me say there is no logic in the pattern of abuse done to young children in this country.
    
17. The present case is aggravated by a number of circumstances of aggravations. First there is an existing relationship of trust, authority and dependency. The maximum penalty that can be given for this crime is life imprisonment. The law protects children and particularly the under aged ones because they are weak and incapable of deciding for themselves what is the difference between good and evil. This is the reason why the amended portion of the Criminal Code particularly the new Divisions 1V.2A&2B that are from ss.229A to 229I and the later Division from ss. 229J to 229V. The old rape provision in s.347 was amended from life imprisonment to seven years.
    
18. In an earlier case that of The State v Peter Lore (20.5.04) N2557 before Kandakasi J; the victim in that case was under the age of 12 years. It was the case of persistent sexual abuse and there was a very big age difference between the victim and the offender. He was sentenced to a term of 20 years imprisonment.
    
19. On the trend of sentencing in sexual penetration of girls under the age of 16 years, sentences vary from case to case depending on the nature of each case. In The State v Melton Moses (22.3.2016) Cr. No.641 of 2014, a case in Kokopo, the offender lured the victim with money. On the first time, he produced a K50.00 note to the victim.
    
20. 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.
    
21. Earlier in another case before this court, in The State v EsromTiama (13.4.06) N3054, the prisoner pleaded guilty to one count of sexual penetration under s.229A (1) aggravated by an existing relationship of trust, dependency and authority. The victim was only 9 years the accused must have been 50 years. He was sentenced to 12 years. Two years were suspended with condition to be placed on bond after service of the total sentence.
    
22. In The State v Danny Tutuve (2011) N4400, it was a trial before; IpangAJ (as he then was) his appointment has now been confirmed, it was one count of persistent sexual abuse. There were two separate occasions of penile penetration of 9 year old child by the 55 years old prisoner. There was a huge gap age between the victim and the man. He was sentenced to 18 years.
    
23. In a similar case as that of the offender, in The State v Paul Save (11.7.2014) Cr. N0. 1096 of 2013, this court sentence the prisoner to 18 years for sexual penetration of his step-daughter. The offence was aggravated by breach of trust and the victim was 13 years with a very big age difference. In The State v KilaDepit (19.6.2015) Cr. No. 456 of 2015, a case in Kibil, Molot Patrol Post, Duke of York Islands, the offender was charged for persistent sexual abuse of a 9 year old victim. The prisoner was found guilty after a trial. 16. He abused the victim for some time until the victim’s brother and elder found them out. He was sentenced to 20 years imprisonment.
    
24. In The State v Martin Willie (7.12.2012) N5170, it was a case of persistent sexual abuse with breach of trust, authority and dependency. He pleaded guilty. He was sentenced to 10 years. In The State v Eremas Kepas (20.3.2007) N3192, a similar case. The offender was 60 years, while the victim was only 10. The penalty imposed was 12 years.
    
25. Sexual abuse of children is so prevalent. On this case, the victim was only 13 years of age. Throughout the country today, there is a very significant increase in sexual cases. The court does not know what would be the reason for such increase. In this case there was obviously breach of trust. The victim elaborated in her statement that you, your son and the victim were sleeping together in one mattress when you had sex with her three times in three deferent nights.
    
26. I have considered comments of those contacted in the pre-sentence report. The victim or complainant of this case does not want any compensation. She instead wants the offender to be sent to jail. The Prisoner’s wife Susan Katu, his sister Margret Tete, the victim’s biological father Rodney Keni say they wish for some compensation to be paid while the victim’s uncle Tete Mori expresses concern over the damage done to the victim and her future life.
    
27. I am of the view that a term of imprisonment must be imposed. The facts of this case have been fairly summed up earlier. The State pleaded circumstances of aggravations. This case involved breach of trust. When the Parliament amended the hold provisionsss.213&216 of the Code and replaced it with the Amended new section i. e s.229A, the legislators intended to provide more protection for under-age children.
    
28. In fact looking at the scheme of the Amended provisions, and the sentencing trends up-to-date, it reflects concern by our law makers. (See discussion of progressive rise in sentence in sexual crime in Tau Jim Anis v The State (supra).
    
29. The court considers the aspect of family relationship. I am of the view that compensation should be paid. The victim’s biological father wants the offender to pay a sum of K10, 000.00. Obviously unlike the in civil cases where the Court has power to order compensation for damages according to the merits of a civil case, compensation paid for criminal cases such as the current case is controlled by legislation.
    
30. The is the reason why s.5 of the Criminal Compensation Act states that, the National Court may order compensation up to only K5, 000.00 only. In the past and even on the instant case, relatives have often claimed very high compensation for sexual crimes. Let me quote s.5 of the above Act.
    
31. This section states:
    

5. Compensation orders.

(1)Upon receipt of the means assessment report or the Chief Probation Officer's advice under Section 4(2), the court may, after taking into account the factors specified in Section 3—

(a) order the offender to pay, within such period and in such manner as the court determines, compensation to a person or group of persons specified in the order; and

(b) direct the Chief Probation Officer to supervise compliance with the compensation order.

(2) Subject to Subsection (3), compensation may be ordered in the form of cash, goods, services or any other kind or method of compensation which the court considers appropriate.

(3) No compensation ordered under this Act—

(a) shall include the use or payment of alcohol; and

(b) whether in the form of cash, goods, services or any other kind or method of compensation shall exceed in value K5,000.00,

and the value of any form of compensation other than cash shall be as determined by the court.”(Emphasis added).

32. The aim of compensation to create some form of resolution or settlement between the parties in a criminal case like the instant one.
    
33. In deciding the sentence the court should impose, I have taken into account you guilty plea to this serious charge and what you have said on your allocutus asking for placement of probation as well as what your lawyer has raised in mitigation. But the court should make it clear to you that the matters you raised during the allocutus such as the welfare of your family and your concern for your children were matters that should have been on your mind before committing this offence and therefore would become a restraint towards sexually abusing your adopted daughter.
    
34. Now a days, offenders do not stand for one moment to think about the adverse effect of their standing in the community and the end result in imprisonment terms that may have on their jobs and their family tires and relationship before they commit serious crimes.
    
35. With regard to your concern that this matter should be settled amicably by compensation, let me make it clear to you and the public at large that when a serious offence such as wilfulmurder, murder, rape, robbery and crimes under the new Amended provisions of the Code earlier mentioned, where the Police and State are involved, they are matters that the State through the police and the Public Prosecutor has an interest in because the State has laws which prohibit such actions.
    
36. It no longer becomes a matter for the village people to settle and forget about. Papua New Guineans are no longer living in the days when tribal laws governed relationship between people and their relatives.
    
37. At the present time, until our laws are changed, when the police make a decision whether to lay a charge or not after a complaint is brought to it and an arrest is made. When the police charge a person for any crimes either prosecutable summarily or any indictable offence and where an offender is committed for trial by the committal court to stand trial in the National Court.
    
38. The Public Prosecutor has the general power to decide whether to proceed against an accused person or not after assessment of all evidence in the committal file. (See PART VI – PROCEEDINGS IN CASE OF INDICTABLE OFFENCES – Sections 93 – 103 District Courts Act).
    

Pre-Sentence & Means Assessment Reports

39. The following persons were contacted in the pre-sentence and means assessment reports:
    
    1. KatuTapin – the prisoner,
    2. Susan Katu - prisoner’s wife,
    3. K. R (victim)
    4. Margret Tete – the prisoner’s sister. (The reports do not show if she is the biological sister or otherwise).
    5. Rodney Keni – biological father of the victim.
    6. Tete Mori – the victim’s uncle.
       
40. Except for the complainant, those contacted want the court to order compensations. As alluded to, the victim is of the view that due to the serious breach committed by the offender, the prisoner should be given a term of imprisonment.
    
41. On compensation, I consider the terms of the pre-sentence report and means assessment report. I consider compensation should be paid. Under s.2 of the Criminal Law Compensation Act, 1991 compensation is not specified as a punishment but if it is ordered, it is in addition to any prescribed penalties imposed that are defined by the section offended against. The above section states:
    

“2. Compensation as punishment.

(1) Notwithstanding that payment of compensation is not specified as a punishment for an offence, a court may, in addition to any other punishments imposed, order an offender to pay compensation in accordance with this Act.

(2) When a court is considering the punishment or punishments to be imposed for an offence, it shall also consider whether in the circumstances of the case, compensation should be ordered.”

42. The court has had regard to the terms of the pre-sentence report and the terms of the above Act. Before this Act came into operation, customary compensation was considered according to s.4 (e) of the Customs Recognition Act (Ch.19) to be a relevant factor on sentence. I gather from the two provisions that the law authorizes the court to order compensation not as a punishment but just as a form of penalty against an offender for customary reconciliation.
    
43. Retribution is not a new concept to Papua New Guinea. The current law empowers the courts to consider custom and then consider an appropriate penalty. The Customs Recognition Act, Ch. 19 says that on consideration of a penalty custom may only be considered to determine the state of mind, the reasonableness of the act and considering other provisions of any other laws. Section 4 of the Act states:
    

“4. Criminal cases.

Subject to this Act and to any other law, custom may be taken into account in a criminal case only for the purpose of—

(a) ascertaining the existence or otherwise of a state of mind of a person; or

(b) deciding the reasonableness or otherwise of an act, default or omission by a person; or
(c) deciding the reasonableness or otherwise of an excuse; or

(d) deciding, in accordance with any other law whether to proceed to the conviction of a guilty party; or

(e) determining the penalty (if any) to be imposed on a guilty party,

or where the court thinks that by not taking the custom into account injustice will or may be done to a person.”

44. The court considers you guilty plea to this charge. I consider counsels’ submission on an appropriate penalty. Having considered all circumstances of mitigations and aggravations I consider a sentence of 10 years appropriate. The court also considers guardianship of the child you abused. The victim was adopted by you and your wife when she was a baby. But for you to turn around and have sex with her was a blow to her and the feeling of hopelessness will never leave her.

Court Order

45. In your case, KatuTapin, you are sentenced to 12 years imprisonment. The court suspended 2 years from the head sentence living the balance of 10 years for him to serve. The custody period shall be deducted from the ten (10) years and you shall serve the balance.
    
46. The court further orders that the prisoner shall pay and amount of K2, 000.00 compensation. Out of the overall total K1, 000.00 of this payment will be paid to the victim. The remaining balance of K1, 000.00 shall be paid to the victim’s father. Pursuant to s.6 of the Criminal Law Compensation Act, the court orders that,
    
    • ➢ The offender’s sister Mrs. Margaret Tete and the victim’s uncle Tete Mori shall ensure that this compensation is paid within 6 months by the wife of the prisoner.
      
    • ➢ Margaret and Mori shall after the specified period report to the Chief Probation Officer of this Province after payment has been made.
      
    • ➢ The Probation Office shall then report to the National Court Registry Office here at Kokopo and the Judge’s Associate after full payment has been done.
      
    • ➢ The compensation order shall be paid within six (6) months.
      
    • ➢ The condition of the suspended portion of 2 years is that after serving the balance, he shall be of good behaviour for 12 months. If he does not abide by this condition, the suspended portion of this sentence shall be reactivated.
      

____________________________________________________

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