The State v Esorom Asupa (2011) N4540

• Jurisdiction: Papua New Guinea
• Judge: Kawi J
• Judgment Date: 08 November 2011
• Citation: (2011) N4540
• Docket Number: CR 451 of 2010
• Court: National Court
• Year: 2011
• Judgement Number: N4540

Full Title: CR 451 of 2010; The State v Esorom Asupa (2011) N4540

National Court: Kawi J

Judgment Delivered: 8 November 2011

N4540

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 451 OF 2010

THE STATE

-V-

ESOROM ASUPA

Kawi J: 2011

Tinputz: 22nd July

Buka : 7th – 8th November

CRIMINAL LAW PRACTICE- Sexual penetration of a young girl under 16 years- Sentencing principles- Victim only 15 years old at time of offence-Criminal Code (Sexual Offences And Crimes Against Children’s) Act. Section 229E (1) - case of an uncle by marriage sexually penetrating the younger sister of his wife- Offence committed in breach of trust situation- Prisoner pleaded guilty- Existing relationship of trust, authority and dependency – Repeated acts of sexual penetration of the victim by the prisoner-Guilty plea by a first offender- Sentence must reflect the sentencing objectives of deterrence. Sentence must be punitive and a custodial sentence must be imposed upon the prisoner- custodial sentence of ten (10) years appropriate

Facts

The accused pleaded guilty of one count of sexually penetrating a girl between the ages of 16 and 18 years contrary to section 229E(1) of the Criminal Code (sexual Offences and Crimes against Children’s Act 2002. The victim would often visit his elder sister and her husband and spend time with them. She would stay with the prisoner and his wife, she being the younger sister of the wife of prisoner. At the time of the commission of the offence, there was an existing relationship of Trust, Authority and Dependency between the accused and her daughter in law. The prisoner abducted the victim and the two took off for the forests where they spent several nights together with the prisoner sexually penetrating her as he pleased.

On sentence:

HELD: (1) The offence of sexual penetration of a girl between the ages of 16 and 18 years committed by a person whom she would refer to as an uncle by marriage constitutes a serious breach of the existing relationship of Trust , Authority, or Dependency, that it calls for an immediate deterrent and punitive custodial sentence.

(2) Sexual offences are becoming prevalent here on Bougainville. Accordingly the Courts must impose strong deterrent, and punitive and custodial sentences upon offenders.

(3) In the circumstances, a deterrent custodial sentence of 12 years will be imposed. To impose a sentence in the range of 3-5 years is to seriously undermine the gravity and seriousness of sexual crimes and offences.

Cases cited

The State –v- Damien Maigawi [2002] N2419

The State –v- Tioti Malana; Unnumbered and Unreported judgement of Lenalia J given on the 12th July 2010.

The State –v- Peter Lare (2004) N2557

The State v- Joseph Ureap; Unnumbered and Unreported judgement of Sawong J dated 12th July 2010

The State –v- John Ritsi Kutetoa (2005) N2814

In The State –v- Siro Waida (2008) N3311

The State –v- Bensa Siovoro; Unreported Judgement of Kawi J dated 15th July 2011 2011.

Counsel

Mr. Philip Kaluwin, for the Accused

Mr. Lukara Rangan, for the State

14th November, 2011

1. KAWI, J: The accused pleaded guilty to one count of sexual penetration of a young girl between the ages of 16 and 18 years contrary to Section 229E(1) of the Criminal Code (Sexual Offences and Crimes Against children) Act 2002. At the time of the commission of the crime, the victim was the younger sister of the wife of the accused. She would often spend time with her sister and her husband the accused in their household. I am therefore satisfied that there was an existing relationship of trust, authority and dependency between the accused and the victim.

1. THE FACTS

2. The brief facts to which the prisoner pleaded guilty are that the victim is the younger sister of the wife of the prisoner. She would often spend time with her sister, (the wife of the prisoner). He abducted her (ie the victim) and took off for the forests where he spent some time in the forests with her, sexually penetrating her and satisfying his own sexual lusts and carnal desires for flesh as he pleased .

2. THE LAW

3. The relevant provision to which the accused pleaded guilty is section 229E (1). This provision is stated in these terms.

229E. ABUSE OF TRUST, AUTHORITY OR DEPENDENCY

(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years.

(2) It is not a defence under this section that the child consented unless, at that time of the alleged offence, the accused believed on reasonable grounds that the child was 18 years or older.

4. I am quite satisfied that going by the medical evidence that the victim is no more 15 and 18 years. Sentencing is a discretionary process guided by several legal principles.

5. One of these principles is that the maximum penalty prescribed by Legislation is usually reserved for cases falling into or described as belonging to the worst category of cases.

6. The facts of this case to which the accused pleaded guilty cannot in my view be described as a case falling in the worst category. That being so, I cannot impose the maximum prescribed penalty of 15 years imprisonment upon you. But that does not mean that this case is less serious than other cases. In my view all sexual offences are very serious simply because they are all aimed at protecting moral decency in a society, sexual offences are also very serious because they seek to protect and promote the dignity of women in a society

7. Another principle which guides the count in the sentencing process is that the courts will usually take into account factors which operate in favour of the accused person and factors which operate against the accused person. These are known as mitigating and aggravating factors. Some mitigating factors are strongly mitigating while other may be mildly mitigating. The same is true for aggravating factors.

I am unable to record any extenuating circumstances here.

8. I record the following mitigating factors in your favour:

· Your early plea of guilty. By pleading guilty very early you saved the court a lot of time and expenses in conducting a full trial.

· You are married with two children of your own who are now attending elementary school.

· You are a follower of the Baptist Church.

· There was no violence and the victim suffered no injuries to her body especially vaginal injuries when the crime was perpetrated upon her. There was some indication of consent from her. And I note that by law, consent is no defence to a charge. See section 229E (2) and section 229F.

· Some form of compensation was paid and peace restored between the family of the prisoner and the victim.

· The prisoner expressed remorse for the crime that he committed and apologized to the victim and her family. He further apologized to the court

9. Operating against you, I record the following:

· You were the uncle of the victim by virtue of your marriage to her elder sister.

· Being her uncle by marriage the victim and you had an existing relationship of trust, authority or dependency. She looked up to you for strength and guidance just as her elder sister, your wife, looked up to you for strength and support,

· Despite all these good moral values, you lusted for her flesh more than

anything else and it was your evil desires for her flesh which led you to do what you did.

· As a result of your sexual lusts and carnal desires for her, you hijacked her and the two of you then eloped into the forest where you spent the night sexually penetrating her as you wished until your sexual lusts and gratification were satisfied and you came home.

· She will now live forever with the social stigma and the shame and embarrassment of being sexually penetrated by her own uncle, the husband of her elder sister.

· The psychological trauma, anxiety and stress of being sexually abused by her uncle will remain with her for the rest of her life.

· You cared little and showed no respect at all for your wife and your other two children. You were more interested and lusted for the flesh of your wife’s younger sister.

· The single biggest aggravating factor against you is that this offence was committed in a breach of trust, authority and dependency situation.

10. In these circumstances, I do not find the presence of any mitigating or extenuating circumstances, which would have significantly reduced the gravity of the crime you committed.

11. The sentencing process and the eventual sentence are all aimed at attaining one or more objectives of sentencing. The final sentence I arrived at must reflect and feature one or more of these objectives. And these objectives of sentencing are:

(a) Deterrence, (b) Rehabilitation; (c) Restitution; (d) Retribution.

3. PRE SENTENCE REPORT.

12. A pre sentence report was carried out for the prisoner. Owing to time constrains the community based Corrections officer could only manage to do the report based on information collected from Police. The Prisoner was...