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State v Kiliu [2019] PGNC 61; N7791 (5 April 2019)

N7791

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1432 of 2017

THE STATE

V

SAMUEL KILIU
Kimbe: Miviri J
2019: 7^th & 18^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – persistent sexual abuse S229D (1) (6) CCA– Not Guilty – No evidence offered – Not Guilty – Acquitted and discharged.

CRIMINAL LAW – PRACTICE AND PROCEDURE – amendment of Indictment – S229A (1) CCA – insertion dates of allegation – S535 Amendment of Indictments – variation material to case – not objected to by defence – defence of accused not prejudiced – amendment allowed.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Sexual penetration of a girl under 16 S229A (1) CCA – Plea – 42 year old man – 12 year old Step daughter – Repeated acts of sexual intercourse – serious breach of trust –PSR and MAR considered – first offender – strong deterrent sentence.
Cases Cited

Public Prosecutor v Bruce Tardrew [1986] PNGLR 91
The State v JB [2007] PGNC 66; N3224
The State v John Elipa Kalabus [1988] PGNC 120; N604
The State v Jonathan [2008] PGNC 31; N3315
The State v Kepas [2007] PGNC 77; N3192
The State v Lare [2004] PGNC 218; N2557
The State v Peter (No 2) [2001] PGNC 8; N2297
The State v Yalibakut [2006] PGSC 27; SC 890

Counsel

C, Sambua & E Kave, for the State

D Kari & B Takua, for Defendant

SENTENCE

05^th April, 2019

1. MIVIRI, J: This is the Sentence of a step father aged 42 years old who repeatedly did sexual penetration of his 12 year old step daughter contrary to Section 229A (1) of the Criminal Code Act.
   
2. The section reads:

(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 Subsection (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.

3. By Section 229A (1) prisoner was looking at imprisonment not exceeding 25 years because she was 12 years old at the time of sexual penetration. Her clinic book evidences that she was born on 26^th August, 2004. At the clock of the last act of sexual penetration on the 12^th July 2017 she was 12 years 11 months old. It was not specifically pleaded that a breach of trust authority dependency occurred aligning subsection (3) of the section. But the definition of relationship of trust, authority or dependency under section 6A explains subsection (1) that proof is complete where there was an existing relationship of that between the accused and the victim at the time of the offence. And by that section includes the situation here of step father and daughter. It is undisputed fact and facts to which the prisoner has pleaded guilty to before me by evidence that the prisoner and the complainant are step father and daughter. In my view therefore it follows that the maximum penalty here against the prisoner would be the maximum of life imprisonment. Which would befall in the case of worst case as in John Elipa Kalabus v The State [1988] PGNC 120; N604 (27 October 1988). By the facts and circumstances a determinate term of years is in order for the prisoner.
   

Persistent Sexual abuse

4. Initially the charge of persistent sexual abuse under Section 229D (1) (6) of the Code was preferred. He entered not guilty pleas in respect of both charges defence counsel applied for adjournment to further speak with the accused. State also sought adjournment to amend the indictment. Though not pointed out by counsel, section 535 amendment of Indictment was the basis. There was no prejudice and the variation sought was material to the case, the dates when the allegation eventuated. Defence did not object and amendment was allowed. It was clear that there was a change of heart by the accused in that he was pleading guilty to the alternate count of sexual penetration of a minor under 16 pursuant to Section 229A (1) of the Code. There were no circumstances of aggravation pleaded. But credit is due to the prisoner for making this bold decision to account for what he did. He saved the step daughter the embarrassment and trauma of reliving what he did to her. It would be reflected in the sentence determined at the end.
   

Short Facts

5. The material facts which must be set out and to which the prisoner pleaded guilty are important as from them will be sourced the sentence due to him: Yalibakut v State [2006] PGSC 27; SC 890 (27 April 2006). He is the step father of the complainant step daughter having married her mother. Between the 1^st February 2016 and the 12^th of July 2017 at Bebere Division 2 Kimbe prisoner sexually penetrated RRK a girl under 16 years old. He inserted his penis into her vagina and had sexual intercourse with her. She was 12 years old at that time having been born on the 26^th August 2004 evidenced by her clinic book.
   
6. Around midday in June 2016 She came home from School took a shower and went into the room to change when prisoner was in the room. He closed the door and told her to take the towel off then threatened her that he would kill her with her mother if she screamed or told anyone about him. He proceeded to touch her on her breast and vagina then told her to lie down whereupon he inserted his penis into her vagina and had intercourse with her. Then took out his penis and ejaculated outside. He then used a rag cleaned up the place and left.
   
7. On another occasion in that same month he came into the room where Complainant was with her younger brother watching TV. He was asleep so he went and touched her breasts and then her vagina. He told her that he would kill her together with her mother if she told anyone. She complied.
   
8. Yet on another occasion he took her with her brother on a fishing trip at the river. There they were at different locations fishing. After awhile prisoner went and took the Complainant into the bushes and sexually penetrated her by inserting his penis into her vagina and had sexual intercourse with her. The brother of the Complainant called out to them and he threatened her not to tell anyone. He then pulled out his penis and ejaculated outside then left her. The abuse continued until July 2017 when the Complainant told a security officer at the Plantation that the prisoner was sexually abusing her. That led eventually to the present.
   

Issue

9. He has pleaded guilty to these facts upon arraignment. The issues posed for my determination are as follows;-
   

What is the appropriate sentence given these facts upon the prisoner?

Aggravation

10. This was a repeated offence over a year and half from 1^st February 2016 to 12^th July 2017; it was not a one of situation. It was persistently committed without heed that she was his step daughter. She became nothing less than an object to satisfy his sexual urges, even though his wife, mother of the girl was alive and he could have easily satisfied his sexual urges with her maintaining their trust and confidence as husband and wife and as a family. He seriously breached that trust in the way that he acted. He could not be termed a father in the way that he acted. No father would do what he did systematically over a period of a year and a half. He was intent on his own sexual gratification which could have easily led to pregnancy for a 12 year old child in school. She was venerable and needed to be protected from the father and any other like minded person. The amendment of the criminal code was specific because the offence was a very prevalent offence. It was primary that young children were protected from adults who abused and sexually used them for their own satisfaction. The protection of the family was paramount as it was the basic unit of society. This was the intent of the people through the legislature that the court was heeded to in any sentence passed.
    

Mitigation

11. But against that fact was the guilty plea of the prisoner saving the complainant step daughter from living out that trauma in court. Pleading guilty also meant that the prisoner accepted that he was wrong and willing to take responsibility for his actions.
    

Presentence and Means Assessment Reports

12. Defence counsel applied for a presentence and means assessment reports under section 13 and 25 of the Probation Act 1979 to be furnished to court. It was important because of the relationship and the long term effects if any of the conduct of the prisoner towards the complainant. He was originally from Vunadavai Livuan, East New Britain Province. He was educated to grade 4 only and is of the United Church and had employment history with Guard security services since 2006 to 2015. He has not paid any compensation. Matter came to light when prisoner and wife mother of complainant had conflict over her alerting security personal at the plantation who investigated questioning the complainant. By this fact it aggravates as it would not have come out had it not been for this fact. The presentence report sums that the crime is serious and the offender is seen as a potential danger to the community. And recommends serious punishment for the wrong.
    

Comparable cases

13. It is indeed a very serious case for the reasons pointed out above including its prevalence. And demonstration of similar cases that have come before this court for example in State v Kepas [2007] PGNC 77; N3192 (21 March 2007) the 60 years old prisoner pleaded guilty that he inserted his fingers five times into the vagina of victim 10 years old. On the last occasion he had sexual intercourse with her. Circumstances of aggravation were pleaded he was sentenced to 12 years IHL. The offence was of his adopted daughter and committed over four months. Here the complainant is 12 years 11 months old and it was not digital but penile penetration over a year and half from 1^st February 2016 to 12^th July 2017. It was of a step daughter which is a serious breach of trust, authority and dependency.
    
14. The age gap here is 27 years and a month - he being 40 year old man against a 12 years 11 months old step daughter. Which is itself a serious and aggravating feature demonstrated in State v Jonathan [2008] PGNC 31; N3315 (12 March 2008) where it was a persistent sexual abuse of a 16 year old leading to pregnancy by 22 year old single man accommodated by the parents of the victim in their house. Prisoner initially used a knife to threaten and to attain sexual penetration after which he persisted until she was pregnant. The court sentenced him to 18 years imprisonment. There the age is not the same as here and a weapon was used to attain penetration leading to pregnancy, which isn’t the case here. That case would be more serious than the present.
    
15. The contrast is State v JB [2007] PGNC 66; N3224 (20 September 2007) where prisoner persistently sexually penetrated his two daughters, one 15 years old and the other 13 years old over 10 months six weeks. It was a very serious breach of trust between father and daughters. The 13 year old daughter was infected with sexually transmitted disease in the process. Prisoner pleaded guilty. The court imposed a cumulative term of 26 years imprisonment but reduced on totality to 20 years IHL. Here in my view it is a stepdaughter but in Papua New Guinea for all intent and purposes is a daughter and therefore a serious breach of trust aligned coupled with the repeated acts of sexual penetration unheeded that he had his wife the mother of the step daughter to satisfy his sexual desires. The sentence here will not exceed that sentence as that was a more serious case than the present.
    
16. The present will be likened to State v Lare [2004] PGNC 218; N2557 (20 May 2004) where the victim was 10 years old adopted by the prisoner as his daughter when the natural parents passed. He was in a very serious breach of trust when he committed the acts upon her. And it was three years running in which the offence was perpetrated upon her. Victim as a result contracted sexually transmitted disease from that encounter. He pleaded guilty and the court imposed 12 years imprisonment upon him. The victim here is 12 years 11 months old but the offence is repeated. Here there is no father- adopted daughter relationship. This is not the same situation as in State v Peter (No 2) [2001] PGNC 8; N2297 (12 October 2001) where that was rape of a school pupil as she was on her way to school. This is not the same given those facts.
    
17. It is a very prevalent offence and prisoners in your age should know better and lead by example to deter but you abused that trust in you to repeatedly commit this offence upon her. It would have continued its spiral and web had it not being for the alert security that picked up from the complaint of the mother with you. On your side you have pleaded guilty saving her the embarrassment and trauma to come to court and to testify. It is a genuine plea made out of the goodness of your heart. For that you will be accorded favour in the sentence that is passed upon you. I consider that like offences must be treated alike, excerpts I have set out above. You will be treated likewise hence the sentence I now pass upon you.
    
18. I have considered part suspension of the sentence but the gravity of the offence outweighs those in Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91 (2 April 1986). Applying this there are no bases for suspension because of the reasons I set out above. You are a grown man who ought to have known what is right and what is wrong. You simply had no excuse to commit the offence. You were intent on self-satisfaction at the demise and misery of your step daughter.
    
19. Young children must be protected. I consider in the light of all these that the proportionate sentence upon you for the crime of engaging in sexual penetration of your step daughter contrary to Section 229A (1) of the Code from the 1^st February 2016 to 12^th July 2017 at Bebere Division 2 Kimbe is 15 years imprisonment in hard labour. And I so impose that upon you.
    
20. I order that any time in custody will be deducted forthwith.
    

Orders Accordingly.

__________________________________________________________________

Public Prosecutors: Lawyer for the State

Public Solicitors : Lawyer for the Defendant