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State v Moses [2018] PGNC 507; N7608 (21 November 2018)

N7608


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 1374 OF 2015


THE STATE


-V-


CAMILO MOSES


Alotau: Toliken, J.
2018 : 21 June, 24 August, 21st November


CRIMINAL LAW – Sentence – Abuse of trust – Step-father/step – daughter relationship – Pregnancy ensued – Mitigating and aggravating factors considered – Appropriate sentence – 8 years less time in pre-trial detention – Criminal Code Ch. 262, s 229E (1).


SENTENCE - Suspension – Whether appropriate – Favourable pre-sentence report – Prisoner intends to marry victim – Idea rejected as being an attempt to escape punishment, or being seen as condoning abuse of children - Offer for compensation – Offer included 1 hectare of customary land – No evidence that clan members support transfer of a portion of their land to victim as compensation – Principles on suspension considered – Suspension inappropriate.


Cases Cited:


Public Prosecutor v Don Hale (1998) SC 564
Public Prosecutor v Tardrew[1986] PNGLR 91
Avia Aihi v The State (No.3) [1983] PNGLR 92
Golu Golu v The State [1979] PNGLR 653
The State v Fong (2016) N6418
The State v Anton Tugumar (2013) N5377
The State v Billy Paulo (2013) N5286
The State v Auduwa (2012) N5169
The State v. Esorom Asupa (2011) N4540
The State v Daniel Latu Bun (2007) N4494
The State v Ephraim Kasinove; CR 1397 of 2014 (Unnumbered judgment of 21st October 2016)
The State v Donigi Mesihol: CR 930 of 2016(17.05.16).
The State v Joe Benoni; CR 1144 of 2016 (Unnumbered and unreported judgment dated 28th October 2017)


Counsel:


J. Apo, for the State
P. Palek, for the Prisoner


SENTENCE


21st November, 2018


  1. TOLIKEN J: Camilo Moses, on 21st June 2018 you pleaded guilty to one count of Abuse of Trust, Authority and Dependency, an offence under Section 229E (1) of the Criminal Code. This offence carries a maximum penalty of 15 years imprisonment.
  2. Your charge was that on a date between 01st October 2013 and 31st October 2013 at Wahiya village, Suau, Milne Bay Province you sexually penetrated your step-daughter Betty Alewai, who was then 17 years old, by inserting your penis into her vagina.
  3. The State brief supporting facts are that the victim is your step-daughter in that you married her mother. She was born on 10th December 1995. On a date unknown in the month of October 2013 the victim went to husk coconut in the bush. You met her there and asked for sex. She complied out of fear and lied down on the ground. You removed your clothes and pulled the victim’s skirt up, removed her shorts and then inserted your penis into her vagina and had sexual intercourse with her. The victim’s mother arrived at the scene catching the two of you in the act. She screamed out and the victim ran away. Your wife scolded you for having sex with her daughter. In having sex with your 17 year old step-daughter you abused your position of trust and authority over her and her dependency on you.
  4. As I said the maximum penalty for this offence is 15 years imprisonment. However, I can only impose the maximum on you if I find that this is a worst case of abuse of trust. That is because maximum penalties are usually reserved for worst cases. Your sentence will also depend very much on the circumstances of your case so that your punishment fits your crime. (Golu Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92)
  5. My task now is to determine an appropriate sentence for you. But at this juncture it is instructive to survey a few decided cases to show the kind of sentences which have been imposed for this offence.
  6. The State v Fong (2016) N6418 (Anis AJ as he then was): The offender was sentenced to 15 years for abuse of trust against his own biological daughter, a relationship that was punctuated with threats and actual physical violence, against the victim, threats against family members, and resulted in pregnancy and transmission of a sexually transmitted infection.
  7. The State v Daniel Latu Bun (2007) N4494 (Cannings J): There the 31 year old offender pleaded guilty to one count of abuse of trust by sexually penetrating his 16 year old niece. The victim and her younger sister had gone to their garden to harvest greens when the offender found them. He took the victim into the bush and sexually penetrated her vagina with his penis. The offender was sentenced to 7 years less time in pre-trial detention.
  8. The State v Anton Tugumar (2013) N5377 (Geita AJ as he then was): There the 51 year old offender pleaded guilty to one count of abuse of trust by sexually penetrating his 16 year old adopted daughter. The offender lured the victim into the bushes under the pretext of cutting some bamboo poles. He threatened her with a small pocket knife, undressed her and sexually penetrated her vagina amidst her protests and cries. After penetrating her, the offender threatened the victim, telling her not to tell anyone including her mother. The victim, however, report the matter to her biological mother. The offender was sentenced to 10 years imprisonment less time in pre-trail detention.
  9. The State v. Esorom Asupa (2011) N4540 (Kawi J): There the offender was sentenced to 13 years for sexually abusing his sister-in-law who was between 16 – 18 years of age. The victim would often visit and spend time at the home of her sister and her husband the offender. One time the offender abducted the victim and took her into the forest and kept her there. He repeatedly had sexual intercourse with her before releasing her. The prisoner was sentenced to 13 years imprisonment less time spent in custody.
  10. The State v Ephraim Kasinove; CR 1397 of 2014 (Unnumbered judgment of 21st October 2016): There the 38 year old offender pleaded guilty before me at Esa’ala to one count of abuse of trust by sexually penetrating the 17 year old victim on several occasions. The victim was the offender’s cousin brother’s daughter (even though the exact relationship was not clear). The victim had been living with the offender’s family for some time after she had arrived from Buka some time earlier to re-unite with her biological father. She was 17 years old at the relevant time. There was some element of consent and the relationship was not a very close one. I sentenced the offender to 6 years imprisonment.
  11. The State v Donigi Mesihol: CR 930 of 2016(17.05.16). There the victim was fast asleep in her room when the prisoner entered the room. He removed her clothes and then had sexual intercourse with the victim. The victim was the offender’s step-daughter. I sentenced the offender to 6 years.
  12. The State v Joe Benoni; CR 1144 of 2016 (Unnumbered and unreported judgment dated 28th October 2017): There the offender pleaded guilty to an indictment charging him with one count of persistent sexual abuse and one count of abuse of trust. The offender was the victim’s step-father. The victim and her mother had moved in with the offender at Padipadi Estates, Alotau, Milne Bay Province, where he was employed. Between the 01st day of April 2015 and 29th August 2015, the offender sexual penetrated the victim on numerous occasions when the victim was 15 years old. Then between the 30th of August 2015 and 01st of March 2016, by which time the victim had turned 16 years but under 18 years of age, the offender sent the victim’s mother away to the village. While his wife was away the offender continued to have sexual intercourse with the victim. The victim became pregnant but miscarried due to the offender’s physical abuse on her. I found that there was an element of consent on the part of the victim and like the current case there was suggestion by the offender (which the State did not negative) that the victim promised on the Bible to marry him. For the charge of persistent sexual abuse I sentenced the offender to 16 years and for abuse of trust I imposed a sentence of 6 years for a total of 22 years. I ordered the sentences to run concurrently and deducted time spent in pre-trial detention. I then ordered the offender serve 7 years of the resultant sentence and suspended the balance on condition.
  13. I do not lose sight of the intention of Parliament when it amended the Criminal Code to create offences against abuse of children. (Criminal Code (Sexual Offences and Crimes Against Children) Act 2002). The creation of these offences was Parliament’s response and prescription against a scourge against the most vulnerable members of our society – the abuse and exploitation of children by adults. And sadly most abuses are perpetrated by those known to and related to children, a fact that was not lost to Parliament, resulting in the prescription of higher penalties to offenders who stood in positions of trust, authority or dependency in respect of children. In the words of His Honour Kawi J in The State v Esorom Asupa (supra) –

28. Parliament passed this Legislation amidst growing concerns over the need to protect women, girls and young children in our country. Parliament then was of the view that this category of our population were rather defenceless and more prone and vulnerable to sexual exploitation and sexual abuse at the whims and desires of sexual predators such as the prisoner here. Furthermore it was concerned that penalties being imposed on offenders by the courts were rather too lenient. It wanted the Courts to impose heavier penalties upon offenders who prey upon defenceless females and commit various sexual crimes upon women and children. Parliament has now confirmed just how serious it is to abuse a position of trust, authority or dependency. This can be gauzed by making reference to the various penalty regimes created for the various sexual offences. For instance section 229E, now carries a maximum sentence of 15 years demonstrating just how serious Parliament was when it made amendments to the Criminal Code.

  1. So with that in mind I must impose a sentence on you that must give effect to Parliament’s clear intention. Such a sentence must principally be for personal as well as general deterrence. But another important purpose of sentencing for this type of offence is that of separation - separating the offender from the victim in situations where the parties are in a close or family relationship so that the victim is not exposed to further abuse. (The State v Billy Paulo (2013) N5286).
  2. So coming back to your case, you were 30 years old when you committed this offence but you are now 35 years old. You come from Waihiya village, Suau, Alotau District of Milne Bay. You are married and have 2 children from the victim’s mother and you also have a child from the victim herself. You are a member of the United Church, illiterate and a first time offender.
  3. You delivered your address to the Court by way of a written statement. You pleaded for mercy and asked essentially for a non-custodial sentence so that you can reconcile with the victim and her mother. You said you have been in custody for 3 ½ years and have missed your children. Hence you asked for probation.
  4. Your lawyer Mr. Palek submitted that yours is not a worst offence and therefore ought to attract a sentence between 4 – 7 years. Counsel submitted that you pleaded guilty to the offence, are a first time offender, have expressed remorse and unsophisticated and illiterate. He, however, conceded that this case involved a serious breach of trust on your part, which resulted in the victim getting pregnant and that this offence is very prevalent. Counsel also asked that a part of your sentence be suspended and that you be placed on probation with conditions including compensation. He also asked that the period you spent in pre-sentence detention beginning from 08th May 2015 be deducted from your sentence.
  5. Your Presentence Report recommends a partial suspension. And you have expressed your willingness to customarily compensate the victim in the Report. The compensation will include 2 x live pigs valued at k900.00 each, 3 x baskets of taro at K70.00 each, 1 x 1m long Bagi traditional money valued at K500 and 1 hectare of customary land.
  6. It also appears from the Pre-sentence Report that you had decided to marry the complainant and she was in fact already living with you when you were arrested for this offence. This was not verified by the complainant because she was interviewed for the report, but she did say in her statement to the police that she had been with him for about three weeks at the time of his arrest.
  7. I had to order a second report to verify whether it was the victim’s desire to marry you. The supplementary report has been filed but the author was, unable to interview the victim as it was difficult to travel to her village. He was, however, able to interview two village elders, namely Kaladi Willie, the Ward Councillor for Koukou Ward and Joshua Aule, the Ward Councillor for Iloilo Ward in the Suau Rural LLG. Both men expressed their disapproval of any attempts by you to marry the victim. And they vouched for the general disapproval the victim’s relatives and the community have towards the idea of you marrying the victim.
  8. Mr. Apo submitted on behalf of the State that because your case involved a serious breach of trust, the prevalence of the type of offence and the fact that the victim fell pregnant, made worse by the emotional effect of the offence on the victim an appropriate sentence ought to be in the range of 5 – 10 years.
  9. Now your case is not necessarily a worst case, but it is nonetheless very serious. Your culpability is quite high because of the serious breach of your position of trust toward the victim as your relationship is very close. There is also a high degree of harm involved – your impregnation of the victim. In the circumstances I would set a starting point for your case at 7 ½ years.
  10. I accept the mitigating factors submitted by Mr. Palek on your behalf; that you are a first time offender and that you pleaded guilty to your offence, albeit belatedly after 3 ½ years. You are unsophisticated and illiterate, but not devoid of any moral sense to not know that you cannot abuse a girl under your care and responsibility whether she is your biological daughter or not.
  11. I accept that you are genuinely remorseful for your offence and that can be demonstrated by your offer to reconcile with the victim and her mother and compensate the victim customarily. You offered 1 hectare of customary land as part of the compensation.
  12. Against you I, however, find the following aggravating factors. First, the victim was your step-daughter. You married her mother voluntarily, knowing full well her situation. You thus willingly assumed the responsibility of taking in her child and caring for her as your own. And the victim on her part looked upon you for support – physical, financial and emotional – and for protection. You thus placed yourself in a high position of trust. It is a very close position of trust and therefore your breach of that trust and authority is very serious indeed. Your abuse consisted of penile penetration and that to me is a worst form of abuse.
  13. Your pre-sentence report reveals that yours was a revenge crime. You admitted that you abused the victim in retaliation against her mother having an affair with another man whom you said was her lover or boy friend. That to me is despicable for the simple reason that you picked on a totally innocent person. You were therefore not merely overborne by uncontrolled sexual passion or lust, but accentuated by malice which you unfortunately directed at a totally innocent victim. That to me is a serious aggravating factor.
  14. The victim in this case became pregnant and now has a child from you. You deprived her of the prospect of marrying someone of her own choice and tried to force her into marrying you after you impregnated her. The victim will live with the shame and stigma of your invasion into her privacy and dignity as a human being. Her innocent child will likewise suffer ridicule from other children and adults alike and will live with the unpleasant knowledge of being illegitimate and of having been brought into this world in a most humiliating and shameful manner.
  15. Finally this offence is a very prevalent offence in this province and right across the country.
  16. So what should be an appropriate head sentence for you? There is no question that you will be punished for your offence and that you will go to gaol. The only question is; for how long?
  17. The sentences that I have imposed for offenders here in Alotau have been all for 6 years as we have seen. The circumstances of your case are quite similar to those of The State v Joe Benoni (supra). Both you and Benoni had abused your step-daughters and impregnated them. Both of you had expressed the desire to marry your victims, a trend I must say, should be quickly condemned and not given any serious consideration. Abusers of children and more so those who stand in positions of trust such as step-fathers and adoptive fathers and others who are not related by blood to victims or any child abuser for that matter, should not think that they can easily get away or escape punishment or get lenient treatment by the courts, if they express a desire to marry their victims. To accede to such an idea would be to down play the gravity and seriousness of offences against children, engender in the minds of abusers that the courts condone and approve such a course and run counter to Parliament’s intention.
  18. Benoni got 6 years for his trouble and you may perhaps be thinking that you should get a similar sentence. Given the prevalence of this and other sexual offences against children and in keeping with the sentencing trend elsewhere, I would like to think that sentences should now increase. So you should not think that you will be given a similar sentence.
  19. I have set a starting point for you at 7 ½ years. Taking into account those factors that mitigate your offence such as your guilty plea and the fact that you are a first time offender and considering these against your aggravating factors, particularly the fact that you stood in a very close relationship of trust in respect of your step-daughter, and that she became pregnant from you and must now care for her child, ideally an appropriate head sentence for you ought to be 8 - 10 years. I should think that an appropriate sentence for you should be 8 years.
  20. I therefore sentence you to 8 years imprisonment less time spent in pre-trial detention which is 3 years 6 months and 18 days counting from the date of your initial detention on 08th May 2015.
  21. Now should any or part of your resultant sentence be suspended? Suspension of a sentence is discretionary on the part of the Court, but it must be done in the proper exercise of such discretion and on proper principle. Essentially a suspension may be considered if it will promote deterrence, reformation or rehabilitation of an offender; promote restitution of stolen property; or if imprisonment will cause excessive suffering to an offender because of bad physical or mental health, and also if it is recommended by a favourable pre-sentence report. (Public Prosecutor v Bruce Tardrew [1986] PNGLR 91; Public Prosecutor v Don Hale (1998) SC 564. In The State v Auduwa (2012) N5169, I said that suspension may also be considered if it will achieve reconciliation and restoration of damaged relationships between parties.
  22. Your case appears to qualify for a suspension. You have a favourable pre-sentence report which recommends a partial suspension and that you be ordered to pay compensation as you suggested to the victim. A suspension may then very well promote reconciliation and restorative justice.
  23. That may very well be the case. However, I must not lose sight of the need to deter you personally and others as well and of the need to protect the victim of your crime. Ward Councillor Kaladi said in his statement in the supplementary pre-sentence report stated that he had personally witnessed on two occasions where you had gone and forcibly took the victim away, and on both occasions her relatives went and brought her back to their home. That to me does not augur well or bespeak of a desire by the victim’s relatives to reconcile with you. Chances are that you will try to forcibly get the victim to marry you against her will. In any case, there is no guarantee that you will marry her at all now that you have been incarcerated.
  24. You also offered to pay compensation to the victim and you named no less than 9 of your close relatives as people who will assist you. However, none of these people were interviewed and it remains unclear whether they will be willing to assist you.
  25. Part of the compensation or settlement package you proposed included the transfer of 1 hectare of customary land to the victim. I am not usually keen in awarding compensation in sexual offences particularly where the victim is very young or of tender age because such victims never personally benefit. However, in this case you have brought an innocent child into this world as a result of your illicit union with its mother the victim. This child and its mother stand to benefit greatly as a result and this is something that needs to be seriously considered in your favour. If I am to give your offer favourable consideration, then the land must be legally transferred by written agreement with the full agreement of your clan members and duly witnessed by community leaders.
  26. There is, however, one serious problem with this offer. Land in Melanesian society is owned by the clan, and more so in a matrilineal society such as Suau. The disposition of land to non-clan members is generally not done unilaterally nowadays, though it may have been the case in the past. Hence the decision to transfer land to the victim is not yours and yours alone to make. It needs the full concurrence of your clan leaders and fellow clan members. There is nothing in your pre-sentence report which shows that your clan has agreed to part with a portion of their land to compensate for your crime. There is therefore no weight to your offer to give a hectare of land to the victim.
  27. And so having considered these things against relevant principles, particularly the recommendation for a partial suspension, I am of the view that a suspension is not appropriate in the circumstances.
  28. You will serve the balance of sentence at Giligili Corrective Institution. And finally you have the right to appeal against your sentence to the Supreme Court within 40 days from today.

Ordered accordingly.
________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner


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