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State v Noelo [2023] PGNC 474; N10631 (21 December 2023)

N10631

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 386 & 387 OF 2019

THE STATE

-V-

AUSTIN NOELO

Alotau: Toliken, J.
2020: 08^th July, 06^th November, 3^rd December
2023: 21^st December

CRIMINAL LAW – Sentence – Sexual penetration of a child – Guilty plea – stepfather/stepdaughter relationship – Child 15 years old – Penile penetration of vagina – Relationship of trust – Serious breach thereof – Mitigating and aggravating factors considered – customary compensation including 2 hectares of land paid while prisoner was in custody – Effects of abuse on children considered – sentence of 15 years less time in pretrial detention – Suspension – whether appropriate – general principles governing exercise of discretion – principles for suspension in child sex abuse cases – need to protect interest and welfare of child survivors – partial suspension with conditions including execution of contract to transfer land already given as compensation to victim – Criminal Law (Compensation) Act considered – Criminal Code, ss 19, 229A (1)(3), Criminal Law (Compensation) Act .

Cases Cited:
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Tardrew [1986] PNGLR 91
Aihi v The State (No.3) [1982] PNGLR 92
The Acting Public Prosecutor v Umane Aumane [1980] PNGLR 510
Goli Golu v The State [1979] PNGLR 653
Kevin Moses Ivaninga v The State (2023) SC2512
Stephanie Konia v The State (2020) SC2122
Public Prosecutor v Don Hale [1998] SC564
Utieng v The State; SCR 15 of 2000 (Unnumbered judgment dated 23^rd November 2000)
The State v Bobby (2022) N9557
The State v Maik Thomas (2018) N7746
The State v Tapin (2017) N6626
The State v Patapata (2016) N6422
The State v Paina (2014) N5621
The State v Rousela (2013) N9033
The State v Henry Morris; CR 393 of 2019 (unreported and unnumbered judgment dated 03^rd December 2020)
The State v Bate Kabasi; CR No. 81 of 2018 (unnumbered and unreported judgment of 10^th March 2020)

Other Sources Cited:
www.qld.gov.au/community/getting-support-health-social-issue/support-victims-abuse/child-abuse/what-is-child-abuse/child-abuse-effects)

Counsel:
R Luman, for the State
N Wallis, for the Prisoner

JUDGMENT ON SENTENCE

21^st December 2023

1. TOLIKEN, J: Austin Noelo, on 08 July 2020, the State indicted you with one count of sexually penetrating your 15year old biological daughter, Nina Austin by inserting your penis into her vagina on 01^st June 2018. Since the child was under the age of 16 years and you also stood in a position of trust authority and dependency you were charged under Section 229A (1)(3) of the Criminal Code. (the Code)
   

FACTS

2. The brief facts put to you on arraignment were that in 2016 when the child was doing Grade 5 at Iloilo Primary School, Suau RLLG, Alotau District, Milne Bay Province, you started sexually abusing her. On 01^st June 2018, between 4.00p.m and 5.00p.m. after the child returned from school, you took her along a small track into the bush. There you undressed her and was sexually penetrating her with your penis when her mother (your wife), who had gotten suspicious and followed you, caught you red-handed having sex with your own daughter. The child was 15 years old at that time. Three months after the incident, the child was taken to the Alotau General Hospital for examination and was found to be 3 months pregnant.
   

PLEA

3. You pleaded guilty to the offence. After perusing the depositions, I was satisfied as to the safeness of your plea and accordingly convicted you.
   
4. I heard submissions and reserved. However, a judgment in your name was inadvertently sent off to the Judgment Editor at the National Court Library for numbering. It was numbered and subsequently published on PacLII where it was reported as Noelo v The State (2020) PGNC492; N9220 (3 December 2020) That judgment was, however, for a different person. The mistake was only known after you enquired with the Registry after awaiting in vain for your sentence. The mistake has now been rectified. Your judgment will be renumbered soon after I deliver it today.
   

THE OFFENCE

5. The offence of sexual penetration of a child under the age of 16 years with circumstances of aggravation such as where there is an existing relationship of trust, authority and dependency between the child and the offender (as was in your case) carries the maximum penalty of life imprisonment subject to the Court’s discretion to impose a lesser or an alternative penalty under Section 19 of the Code.
   

ISSUE

6. You are therefore liable to be sentenced to life imprisonment. What falls to be determined there is what an appropriate sentence for you ought to be.
   

CHILD SEXUAL ABUSE - SENTENCING RATIONALE

7. In The State v Henry Morris; CR 393 of 2019 (unreported and unnumbered judgment dated 03^rd December 2020) I said the following regarding the sentencing rationale behind child abuse cases:
   

The protection of children from all forms of sexual abuse underscores the legislative intention behind child protection legislation such as those under the Criminal Code. Children are the most vulnerable members of society and therefore need to be protected. The primary responsibility lies with parents and guardians. Unfortunately, the safety of the family home has not insulated or protected children from sexual abuse. In fact, sexual predators target the most vulnerable members of society – children - who deserve to be loved, nurtured and guided by parents and guardians so that they grow into stable and morally upright members of society. Homes are supposed to provide security for children. Unfortunately, most of the abuse happen in the safety of the family home. Abusers are usually persons who are known or related to victims, persons who in most cases stand in positions of trust in respect of these children. When abuse happens in the safety and sanctity of the home or other places where children are raised, educated, or offered spiritual guidance for instance, perpetrators must be severely punished for this grave dereliction of moral and legal duty and obligation.

Sexual abuse is a global issue hence the United Nations Convention on the Rights of the child (CRC) obligates member countries to legislate for the protection of children from sexual abuse, among others. Our Parliament had ratified the Convention and accordingly introduced new offences into the Criminal Code, one of which is offence you pleaded guilty to. (Criminal Code (Sexual Offence and Crimes Against Children Act 2002). This amendment to the Code provided very stiff penalties for sexual abuse that are committed by persons who stand in positions of trust - life imprisonment. This reflects Parliament’s intention, which is clearly that persons who abuse children, more so, those who stand in positions of trust and abuse that trust must be severely punished.

To that end, it is well worth repeating what the Supreme Court said in Stanley Sabiu v The State (2007) SC 866 (Mogish, Manuhu, Hartshorn JJ) when dismissing the appellant’s appeal against a sentence of 17 years for sexually penetrating his 6-year-old nephew. The court said at paragraph 10 –

... In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that the sexual penetration of children under the age of 12 years is the more serious, hence the larger maximum penalty. ... We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than 15 years imprisonment.

8. While the Court there was dealing with an appeal against sentence involving a child victim under the age of 12 years, the point is that persons who abuse children in general must be visited upon with stiff punitive sentences in the first instance to protect these vulnerable members of society. It is against that backdrop that I must determine an appropriate sentence for you.
   
9. Whatever sentence you get will, however, depend on whether yours is a worst case because the maximum penalty is usually reserved for worst cases. I will also have to consider the circumstances and facts of your own case when deciding what an appropriate sentence for you ought to be. (Goli Golu v The State [1979] PNGLR 653; Aihi v The State (No.3) [1982] PNGLR 92; Lawrence Simbe v The State [1994] PNGLR 38)
   

ANTECEDENTS

10. You come from Iloilo Village, Suau RLLG, Alotau District. You were 35 years old when you committed the offence. You are now 40 years old. You are married with two biological children of your own and a stepdaughter, the victim. She is your wife’s daughter from a previous relationship. You are the second born in a family of five. Both your parents are still alive but are now along in years. You are a member of the Seventh Adventist Church, was educated up to Grade 5 only and are a first-time offender. You have been in custody for a period of 5 years and 1 month since your arrest on 22^nd November 2018.
    

ALLOCUTUS

11. You apologized to the Court for giving in to temptation and committing this heinous crime against the victim. You apologized to her and her mother (your wife), their family and relatives and the Iloilo community. You said you were willing to reconcile with the victim, her mother and family and compensate them. Your family, you said, are willing to assist you. You asked if you could be placed on probation so you could care for your wife and children. Your children are now in school, and your wife is finding it extremely difficult to provide for them and herself. You finally promised never to reoffend.
    

PRESENTENCE REPORT

12. A presentence report (PSR) was filed in your behalf. Those interviewed were yourself and your father Noel Nipoga. The victim and her mother or any community leaders were not interviewed due to the remoteness of Iloilo Village. However, a signed customary compensation report by Village Magistrate Rita Eric was appended to the PSR. It showed that compensation was paid on 16^th October 2020 by your biological parents Noel Nipoga and Lotty Noel and your adoptive parents Andrew Nadile and Alice Andrew to the victim, her mother Carolyn Koleni and her brother Hebelu Koleni. It was witnessed by Ward Councilor Pansol John, Village Magistrate Rita Eric and Pastor George Koleni. The compensation consisted of store goods, garden food, 2 pigs and K300.00 in cash totaling K3426.25. On top of that, 2 x hectares of customary land were also given as further compensation. The land was valued by the Provincial Valuer Mr. Copeland Sumani at K40,000.00. A full Valuation Report was appended to the PSR as well.
    
13. The author of the PSR Mr. Billy Joel was of the view that you are a “risky man” because you will pose an immediate danger to the victim should you be placed on probation. Restraining orders will therefore be required to stop you from associating with the victim. When asked how you will avoid repeating your criminal behaviour you said that you will send her away to her maternal aunties and uncles so you can stay freely with your wife and biological children.
    
14. Despite his concern the Probation Officer recommended that you be considered for probation with additional conditions to restrain you from having any contact with the victim and that you perform unpaid community work.
    

SUBMISSIONS

15. Your Lawyer Mr. Wallis submitted that yours is not a worst case hence you should not receive the maximum penalty, which is life imprisonment. Rather an appropriate sentence for you ought to be 10 – 15 years. While he acknowledged that there are serious aggravating factors against you, there are also good mitigating factors in your favour which he said slightly outweighed the aggravating factors. I accept most of the mitigating factors advanced in your favour and will return to them shortly.
    
16. Counsel conceded that what you did cannot be excused nor can your reason for defiling your step-daughter – temptation – be accepted or condoned.
    
17. Mr. Wallis submitted finally that the Court may, in its discretion, suspend a portion of your sentence and place you on probation.
18. Mr. Luman submitted on behalf of the State that an appropriate sentence for you ought to be 25 – 30 years. This counsel said is a very serious case because of the existence of a relationship of trust, authority, and dependency. He said you are the biological father of the victim which is not entirely correct because she is your stepdaughter. You also persistently sexually penetrated her, impregnated her, and subjected her and her mother to threats of violence and aggression. I can accept that the victim got pregnant, however, the facts you pleaded guilty to did not allege that you subjected the victim or her mother to threats of violence and aggression let alone persistently abuse the victim. Maybe you did, maybe not, but these are not facts that are open to me to consider in passing sentence on you. (Kevin Moses Ivaninga v The State (2023) SC2512; Stephanie Konia v The State (2020) SC2122) There is, however, some concession by your lawyer that you used some force and violence to subdue the victim into submission.
    
19. Both counsel cited comparable cases to me to assist me in arriving at an appropriately just sentence for you.
    
20. At this juncture, I would say that yours is not necessarily a worst case. Hence, I will not impose the maximum penalty on you.
    

APPROPRIATE SENTENCE - CONSIDERATIONS

(i) Mitigating Factors

21. The following factors mitigated your offending:
    • You pleaded guilty to the charge thus saving court time and money for the State had you forced a trial.
    • You have no prior conviction.
    • You were of prior good character. I find the Probation Officer’s characterization of you as a “risky man” to be without basis because there is nothing in his report to support such view, especially when neither the victim and her mother nor any community leader were not interviewed.
    • You expressed remorse which to me appeared to be genuine.
    • You did not use any weapons against the victim.
    • You acted alone.
    • You did not inflict physical injuries on the victim.
    • You did not infect the victim with a Sexually Transmitted Decease (STD).
    • The victim was 8 months and 21 days shy of the age of consent (16 years). She was, according to her mother, born on 22^nd February 2003.
    • Your family has paid customary compensation to the victim and her mother and relatives in the sum of K3426.25 in cash and kind and gave 2 hectares of customary land to the victim.
    • You have waited for over 5 years for your sentence which would have affected you psychologically.
      
      • (ii) Aggravating Factors
22. Against you, however, are the following aggravating factors:
    • The victim was your stepdaughter hence there was a very serious breach of a duty of trust.
    • The victim got pregnant though it appears from the PSR that she did not give birth to a child. If so, the most probable and logical explanation would be that she either miscarried or aborted the child.
    • There is some concession by your lawyer that you used some force and violence to subdue the victim into submission.
    • It goes without saying that you inflicted emotional and psychological harm on the victim.
    • There was a huge age difference of 20 years between you and the victim.
    • The prisoner most likely lost her virginity to someone whom she regarded as her father. This will weigh heavily on her for the rest of her life.
    • The offence is prevalent.
      
    • (iii) Comparable Cases
23. For comparison counsel cited several cases to me. Only two of these are like your case. These are:
    
24. The State v Bate Kabasi; CR No. 81 of 2018 (unnumbered and unreported judgment of 10^th March 2020); the offender there pleaded guilty to sexually penetrating his 15-year-old stepdaughter contrary to s 229A (1)(3) of the Code. The prisoner lured the victim into their family house and enticed her into having sexual intercourse with her. She agreed and they had consensual sexual intercourse. There was a serious breach of trust involved. I sentenced the offender there to 11 years.
    
25. The State v Tapin (2017) N6626 (Lenalia J); the 38year old offender pleaded guilty to sexually penetrating his 13-year-old adopted daughter with his penis on three separate occasions within a period of one month in their family home when the wife was absent. It appeared that the acts were consensual. The offender there was sentenced to 12 years, two of which were suspended with conditions including payment of compensation. He was ordered to serve the balance of 10 years less the period spent in pre-sentence detention.
    
26. The following cases were not cited to me, but I find them relevant.
    
27. The State v Paina (2014) N5621; the offender there pleaded guilty before me for sexually penetrating her 15-year-old stepdaughter contrary to Section 229A (1)(3) of the Code. On a date unknown in June 2012 the victim’s mother had gone to Dogura to do her market and did not return home to Gadovisu. That night, around midnight, as the victim was sleeping in their family home the offender went up to her and removed her clothes. The victim woke up, when she felt what he was doing and told the offender that she would report him to her mother. The offender, however, threatened to stab her with a knife and proceeded to insert his penis into her vagina and had sex with her. The offender was a first-time offender, pleaded guilty and co-operated with the police. The offence was extenuated by the fact that the victim was privately and openly hostile to the offender because she refused to accept the offender’s marriage to her mother. She even went to the extent of even getting angry and preventing him from sleeping with her. The victim was a month shy of the age of consent. Aggravating his offence though were the prevalence of this type of offence, breach of trust and threats of violence. I sentenced the offender to 11 years.
    
28. The State v Bobby (2022) N9557 (Salika CJ); the offender pleaded guilty before the Honourable Chief Justice to an indictment charging him with sexually penetrating his 13-year-old stepdaughter. The offender had entered the victim’s room when she was asleep, cut a hole on her shorts and sexually penetrated her with his penis. The girl’s mother was not around that time. His Honour considered the prisoner’s mitigating factors such as his guilty plea, nil priors, expression of remorse and cooperation with the police. He also considered aggravating factors which included the prevalence of the offence, the victim was a minor and a relative, and the 25 years age gap between the offender and the victim.
    
29. Speaking of the Court’s duty to give effect to Parliament’s intention and punish child abusers appropriately his Honour said:
    
    14. The Court’s duty is to deal with persons offend against the laws and to give full effect to the intention of Parliament. The intention of Parliament is the intention of the people. The Court’s duty is to consider the circumstances of the commission of the offence and to impose appropriate penalties on the offenders. It is important for offenders of such serious crimes to know and understand that they will be punished severely for such crimes. The Courts have a duty, legal and moral to protect [our] vulnerable children [from] predators such as this prisoner.
        
30. His Honour then sentenced the prisoner to 15 years IHL less time in pretrial custody.
    
31. The State v Thomas (2018) N7746 (Koeget J); there the victim, a stepdaughter of the offender, went with her mother and a younger brother to harvest their garden. While there the victim told her mother that she’d go into the bush to forage for greens. As she was collecting the greens, the offender, who had followed her pushed her to the ground from the back. Surprised she asked him what he was doing but he harassed and threatened her, removed her clothes and sexually penetrated her vagina with his penis. The victim struggled to free herself, but the offender was too strong and continued to penetrate her, stopping only when he saw her bleeding from her vagina. The victim later reported the matter to her aunt in the village resulting in the offender’s arrest.
    
32. The offender was indicted under Section 229A (1)(3) of the Code for sexual penetration of a child under 16 years of age with circumstances of aggravation. He pleaded guilty. After considering the offender’s mitigating and aggravating factors, his Honour sentenced the prisoner to 15 years IHL.
    
    • (iv) Current Case
33. Coming back to your case, you must not be under any illusion that you will not be punished – and punished adequately at that – for your offence. You defiled your stepdaughter in the most degrading way a father could of a daughter whether biological, adopted or step at a time when she was most vulnerable. Chances are that you took away her innocence - her virginity. There is no evidence that she has had sex with anyone else, as a lot of girls in her age increasingly do nowadays, before you degraded and defiled her. This experience has and will continue to affect her all her life in a lot of different ways as often generally happens in survivors of child abuse.
    
34. In The State v Henry Morris (supra.) where I sentenced the offender to 11 years for sexually penetrating his 12-year-old sister-in-law, I cited an excerpt from the Queensland Government Website which summarizes the negative effects of child sexual abuse on survivors which I will again cite here. It says:
    

“... while children respond differently to abuse, the effects on them can be very significant and long lasting. And while it should be noted that the impact of abuse will not be noted in some children, most may experience a range of emotional, psychological and physical problems including –

• low self esteem
• increased fear, guilt and self-blame
• distrust of adults or difficulty forming relationships with others
• disrupted attachments with those who are meant to keep them safe
• mental health disorders such as anxiety, attachment, post-traumatic stress and depression disorders
• self-harming or suicidal thoughts
• learning disorders, including poor language and cognitive development
• developmental delay, eating disorders and physical ailments
• permanent physical injuries or death
• violent, aggressive or criminal behaviour or other behavioural problems
• drug and alcohol abuse and high-risk sexual behaviour.
  

(See www.qld.gov.au/community/getting-support-health-social-issue/support-victims-abuse/child-abuse/what-is-child-abuse/child-abuse-effects)

We can therefore appreciate the devasting effects sexual abuse can have on children and the intention behind child abuse legislation such as those introduced into our Criminal Justice System and Criminal Law.”

35. I must add here that most Melanesian girls do dream of marrying a good man and having children. Unfortunately, a girl who is sexually abused by his father (whether biological, step or adoptive) stands to suffer or lose the prospect of a good stable marriage. She suffers a social stigma in her society, even from her relatives. Unfortunately, these are the things your victim will have to contend with for the rest of her life.
    
36. No amount of apology, reconciliation, or compensation can ever undo the harm you have caused her. The fact that she got pregnant from you added an extra load on her. She was but a child and had to suffer the utter humiliation among fellow villagers, relatives and family members including siblings, and school mates. The fact that she may have miscarried or aborted is of no consolation because the emotional and psychological damage had already been done.
    
37. You have asked for probation so you can go home and reconcile with the victim. You offered to send her away to her maternal aunts and uncles so you can live a peaceful life with your wife and biological children. And it suddenly dawned on you that you have a wife and children to care for and who have been struggling since your arrest. You did not think about them when you gave in to your primal instincts or temptation to defile the victim who looked up to you as a father. You have no one else to blame but yourself for the situation your wife and children are now facing, and unfortunately, all thanks to you, they will continue to suffer because you are now starring down more time in jail. (Utieng v The State; SCR 15 of 2000 (Unnumbered judgment dated 23^rd November 2000).
    
38. I have often said when passing sentence on paedophiles and sexual predators like you who take advantage of defenseless and vulnerable children, more so their very own, that once you have had sex with a child or daughter, you will never, ever again look at her the same way. You will lust after her. The pure father/daughter relationship and love that you once had for your daughter will have changed completely and replaced by evil desire. You should therefore not delude yourself into thinking that your relationship with the victim will be a normal one ever again.
    
39. And talking about sending the victim away, the only person who needs to be sent away is you. You should be kept away from the victim for as long as is necessary because you will be an immediate and continuing danger to her, and other girls for that matter. And who knows, you may even turn your diabolic attention to your own biological daughters.
    
40. I have considered your plea in mitigation, your mitigating and aggravating factors, submissions by counsel and comparable cases. I will pass a sentence which will be appropriate to your offending while ensuring that a message is sent out to those who prey on vulnerable children out there in our homes, villages, and communities that they will be severely punished and incarcerated for sufficiently long periods so victims can grow up with some level of security and comfort that justice has been done for them as well.
    
41. Sexual abuse of children in this province is rampant. You are not the first one nor the last to be sentenced by this Court. I have dealt with numerous such cases here in Milne Bay in my 9 years here before I got transferred out. Three of these cases are cited in this judgment. They all attracted sentences of 11 years which in hindsight may be on the low side. That must now change because as the Honourable Chief Justice said in The State v Bobby (supra.) the Court will be failing its duty to give effect to the will of the people through Parliament – that sex offenders against children must be severely punished. A failure to give effect to this is a failure and dereliction of our moral and legal duty to protect our children – more so our girls who are the victims of almost all sexual abuses.
    
42. When the abuse happens in the sanctity of the family home by a father or a close relative, this calls for a harder stance by the Court. Such offenders must be put away sufficiently so that abused children can grow up in a safe, secure and loving environment without having to be subjected the real risk of further abuse.
    
43. I am fully aware and accept that your family has reconciled with and compensated the victim and her family for your offence in your absence. I am also aware that your family has given 2 hectares of customary land to the victim as part of the compensation. Land is precious in our Melanesian societies and is not given away quite freely or easily. So, what they did is a very significant customary gesture. The giving of land has been part of our tradition as compensation for wrong done to others or as a gratuitous gift for past good deed to the benefactor.
    
44. Compensation though is not a legally sanctioned penalty in criminal law. (The Acting Public Prosecutor v Umane Aumane [1980] PNGLR 510) However, the Criminal Law (Compensation) Act 1991, s 5, does provide that the Court may in its discretion award compensation (in cash and kind) not exceeding K5000.00 in addition to but not in substitution for a sentence be it imprisonment or a fine.
    
45. This has not stopped perpetrators and/or their relatives from paying huge amounts of compensation to victims and their people amounting to several hundreds of thousands of Kina in certain parts of the country such as up in the Highlands.
    
46. While the courts are constraint by the Criminal Law (Compensation) Act, citizens are not. Unless Parliament legislates against extra-judicial payment of compensation for criminal wrongdoing, citizens will continue to pay and accept compensation as a means of correcting wrongs, bringing about peace, and restoring damaged relationships.
    
47. When this happens, criminal offenders should, however, not think that the mere payment of compensation (however, large) will insulate them from judicial punishment. They will be punished. Their liberty will be taken away and they will face long prison terms.
    
48. Your immediate family and relatives have stepped in to compensate the victim in your behalf without any contribution at all from you. Unfortunately, you will have to receive your just dessert as they say. You must be held personally responsible for your crime with an appropriate custodial sentence – that the law demands of you.
    

SENTENCE

49. Having considered all the above, and with the view of giving effect to the will of Parliament for the protection of children from sexual abuse of all sorts, and to punish you and for personal and general deterrence, I am of the view that an appropriate sentence for you ought to be 15 years imprisonment IHL. This should bring it in line with the sentences imposed in The State v Tommy (supra) and The State v Thomas (supra.) The time you have spent in pretrial detention which is 5 years, 1 month and 1 day, will be deducted from your sentence which you will serve at Giligili Corrective Institution.
    

SUSPENSION

50. Now should I suspend a part of your sentence as urged upon me by your lawyer, the Probation Officer and of course yourself?
    
51. Suspension of a sentence is a matter of discretion by the Court. While the discretion under Section 19 (6) of the Code is unfettered, it must be exercised according to law and principle. The principles on suspension are borne out in the Supreme Court authorities in Public Prosecutor v Tardrew [1986] PNGLR 91 and Public Prosecutor v Don Hale (1998) SC564. Essentially, suspension will be considered –
    
    • Where it will promote personal deterrence, reformation or rehabilitation of the offender.
    • Where it will promote the repayment or restitution of stolen money or goods.
    • Where imprisonment will cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. (Public Prosecutor v Tardrew)
    • Where there is a favourable presentence report and a willingness to assist in supervising and rehabilitating the offender from the offender’s community. (Public Prosecutor v Hale)
52. These principles are of general application. However, when it comes to sex offenders against children, additional considerations must apply before a sentence can be suspended. In The State v Rousela (2013) N9033, a case of sexual touching, I commented that there is no guarantee that abuse will not be repeated. Expressions of remorse cannot guarantee that the offender will not re-offend and that an isolated incident may be the beginning of a long chain of abuse that can often follow a child even up to his or her adulthood. [36]
    
53. I then continued at paragraphs 44 – 47:
    
    44. While there are many reasons that can be advanced to justify the suspension of a sentence, generally, in sexual offences against children, the over-riding consideration should and must be the welfare and safety of the child. The protection of our children from sexually abusive adults undergirds the enactment of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. That being the case suspension of sentences for this type of offence should be exercised sparingly, if at all.
    45. The question for me then is: Will I be promoting the protection of the victim and her welfare if I were to suspend the sentence whether wholly or in part or place the offender on probation?
    46. I guess the answer to this question will depend very much on the circumstances of each case. However, I would like to think that when considering whether 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.

(v) the genuineness or otherwise of any remorse expressed by the offender.
(vi) whether such remorse has been demonstrated by clear evidence of turning about (a complete change) by the offender.
(vii) the possibility or likelihood of re-offending by the offender.

47. I strongly feel that where the relationship is that of stepfather/stepdaughter 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 a 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.
    
54. Then in The State v Patapata (2016) N6422, where the 74-year-old offender persistently abused his 15-year-old biological granddaughter over a period of one month I said when sentencing him to 10 years which I wholly suspended on condition principally because of his advanced age, I said:
    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.
        
55. I reiterate and adopt what I said there in Rousela and Patapata. Patapata is relevant for another reason. Part of the compensation he paid to his granddaughter was 40 hectares of customary land. Like here, the land had already been given away to his granddaughter and her family before the offender was sentenced. Technically the demised land was not part of an order under the Criminal Law (Compensation) Act. All that I did there was to ensure that the transaction was legally binding on the parties. Hence, I ordered the parties to enter into a contract of transfer and made this as an additional condition for probation.
    
56. So, should any part of your sentence be suspended? You have already spent 5 years and 1 month in pretrial custody. Is that sufficient punishment for you? Will you pose an imminent danger to the victim? How old is the victim now? Does the victim still live with her mother in their family home, or has she moved in with her aunts and uncles? Does she have a good support system from her immediate family, the extended family and clan?
    
57. I pose these questions because if I am to suspend a portion of the sentence then I must be certain that the victim is not put in harm’s way or that you will not resume your abusive behaviour on her.
    
58. I have no doubt that the action taken by your family, albeit in your absence, was a genuine step towards restoring the rift between your people (and to a large extent yourself) and the victim and her family. The relationship here is that of stepfather/stepdaughter. In a typical Melanesian setting the victim will not be left destitute because her relatives including her biological father (if he is still alive) will stand ready to support her. That they will not allow a girl to be subjected to sexual abuse without redress is evident from the very fact that you were handed over to the law to deal with.
    
59. The victim would now be 20 years old, not quite an “adult” in our Melanesian worldview where adulthood is not measured in chronological age. Your early release will most likely expose her to real risk and danger. The victim must therefore be allowed to grow and mature to full adulthood and if she had continued her education to pursue that as far as she can. But if she has not, then she should be allowed to live her life freely for some time. She may find a partner to marry eventually who can protect her as well.
60. I am of the view therefore that the principles in Tardrew and Don Hale have been met. I am also satisfied the considerations in Rousela have been satisfied also.
    
61. Be that as it may, if I am to suspend a part of your sentence, I must allow enough time for the victim to grow up into adulthood so the risk of further abuse by you is minimized.
    
62. I propose therefore to order that you serve 2 years of his resultant sentence. The balance shall be suspended upon your entering into a period of probation for 5 years, with additional conditions that you shall perform 200 hours of unpaid community service for Iloilo Primary School and that your family and the victim enter into a contract for transfer of the land given away to the latter as compensation within a specific time frame. There will be other conditions as well.
    

ORDER

63. The sentence and order of the Court is therefore as follows:
    1. The prisoner is sentenced to 15 years IHL less the period of 5 years and 1 month he had spent in pretrial detention, leaving a resultant sentence of 9 years and 11 months.
    2. Of the resultant sentence the prisoner shall serve 2 years while the balance is suspended upon the prisoner entering into probation for a period of 5 years with the following additional conditions –
       
       • (i) He shall upon release from Giligili Corrective Institution, report to the Provincial Community Based Correction Officer (Probation Officer) at Alotau within 5 working days.
       • (ii) Subject to condition 2 (iii) below, he shall keep the peace toward the victim Nina Austin, and he shall not have any contact whatsoever with her.
       • (iii) Within 1 month from his release, he shall personally reconcile and apologize to Nina Austin in the presence of the Village Magistrate, Village Pastor and Community Leaders and people of Iloilo Village after which he shall immediately cease all contact with her.
       • (iv) He shall perform 200 hours on unpaid community service for Iloilo Primary School under the joint supervision of the Provincial Community Based Correction Officer or a Volunteer Community Based Correction Officer appointed for that purpose and the Headmaster of Iloilo Primary School.
       • (v) The Public Solicitor, through his employed Lawyer Mr. Chester Namono, shall draft a Contract for Transfer of 2 x hectares of customary land at Iloilo Village, Suau RLLG, Alotau District, Milne Bay Province which has been given or ceded to Nina Autin as compensation, between the prisoner’s family or clan (as the case may be) as Transferors, and the Victim Nina Austin as Transferee. The Instrument shall specify the name of the land and describe the boundaries with sufficient detail accompanied by a map of the boundaries and shall further stipulate that the said land is transferred in perpetuity to the Victim Nina Austin.
       • (vi) The Contract shall be executed in the presence of the Village Magistrate, Land Mediator (if any) and the Village Pastor of Iloilo Village and supervised by Mr. Namono or his nominee and the Provincial Community Based Corrective Officer of Milne Bay Province no later than 6 months from today.
       • (vii) The victim Nina Austin may thereafter be at liberty to either convert the land to freehold under the Land Tenure Conversion Act 1963 under her sole name or with 5 others as provided under the said Act, or deal with it as she pleases.

(3) The Provincial Community Based Correction Officer of Milne Bay Province shall within 7 months from today file a Progress Report with the National Court Registry in Alotau, the Offices of the Public Prosecutor and Public Solicitor in Alotau.

(4) The prisoner may appeal to the Supreme Court within 40 days if he is aggrieved by his sentence.

Ordered accordingly.

________________________________________________________________
R Luman, Acting Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner