The State v George Taunde (2005) N2807

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 March 2005
• Citation: (2005) N2807
• Docket Number: CR No 1064 of 2004
• Court: National Court
• Year: 2005
• Judgement Number: N2807

Full Title: CR No 1064 of 2004; The State v George Taunde (2005) N2807

National Court: Cannings J

Judgment Delivered: 22 March 2005

N2807

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1064 0F 2004

THE STATE

V

GEORGE TAUNDE

BUKA : CANNINGS J

10, 22 MARCH 2005

SENTENCE

Criminal law – indictable offence – Criminal Code, Division IV.2A, Sexual Offences Against Children – Section 229A, engaging in act of sexual penetration with a child under the age of 16 years – sentence on plea of guilty – offender aged 33 years, child aged 13 – offender married to victim’s father’s sister – uncle/niece relationship – lack of consent – offender acted alone – no weapons used or aggravated physical violence – no physical injury – offender did not surrender – cooperated with police – no trouble caused with victim since the incident – nothing tangible done towards repairing his wrong – determination of maximum penalty – expression of remorse – first offender – not a youthful offender – limited educational background – starting point for head sentence – new law – few precedents – identification of relevant considerations – application of relevant considerations – no pre-sentence report available – not appropriate to suspend whole or part of sentence – sentence of 10 years.

Cases cited

Public Prosecutor v Don Hale (1998) SC564

The State v Eddie Trosty (2004) N2681

The State v Kemai Lumou (2004) N2684

The State v Pennias Mokei (No 2) (2004) N2635

The State v Peter Lare (2004) N2557

The State v Sottie Abusa [1988-89] PNGLR 170

L Rangan for the State

L Siminji for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to the offence of engaging in an act of sexual penetration with a child under the age of 16 years. The girl was 13 years old and was the niece of the man.

BACKGROUND

Incident

The incident giving rise to the charge took place at Hahon village, Kunua, Bougainville, on 3 March 2004. It was alleged that the accused engaged in an act of sexual penetration with a girl under the age of 16 years, who is referred to as the complainant.

Indictment

On 10 March 2005 he was brought before the National Court and faced the following indictment:

George Taunde of Hahon village, Kunua, Bougainville, stands charged that he … on the 3rd day of March 2004 engaged in an act of sexual penetration with Evodia Philip [the complainant], a child under the age of 16 years and that at the time of the act of sexual penetration there was an existing relationship of trust between [the complainant] and George Taunde.

The indictment was presented under Section 229A of the Criminal Code.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

At about midday on 3 March 2004 the accused and the complainant, a girl aged 13, were at their village at Kunua. The complainant went to a spot away from her house, near a creek, to go to the toilet. The accused followed her. Just after she finished relieving herself, the accused set upon her and had sexual intercourse with her. The accused knew that she was under the age of 16 years. There was an existing relationship of trust between him and the child. He is married to her father’s sister. He is her uncle.

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the prisoner.

ANTECEDENTS

The prisoner has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I just want to say that it is true that I did this thing. They took me home to sort it out. They got the home guard and they hit me and then told me that was the end of it. But the next day they got the police. I am sorry for what happened. I am sorry for my family. I am sorry I ended up here. This is my first time to be before the court.

SUBMISSIONS BY DEFENCE COUNSEL

Mitigating factors

Mr Siminji referred to a number of mitigating factors. The prisoner has pleaded guilty, saving the trouble and expense of a trial. He admitted to the police at the outset what he had done. He accepts responsibility for his actions. There was no aggravated physical assault on the victim.

Personal particulars

The prisoner is married with four children. His wife and children are at home. He is now aged 34. He attends the Catholic Church. He has no formal education or employment. He is a subsistence farmer.

Precedent

Mr Siminji submitted that the court should apply the sentencing guidelines in The State v Sottie Abusa [1988-89] PNGLR 170, National Court, Brunton AJ. These are:

· where the offender and the victim are of similar age or where the victim consents: up to 20 months imprisonment;

· where the offender is a mature man and there are no circumstances of aggravation: 20 to 40 months;

· where there are aggravating circumstances, eg a relationship of trust and dependency: 40 months to five years.

Mr Siminji submitted that the present case falls into the third category but because of the absence of aggravated violence a suspended sentence would be appropriate.

SUBMISSIONS BY THE STATE

Mr Rangan submitted that Sottie Abusa was of little use as a precedent. It was decided 17 years ago. It dealt with an offence that carried only five years as its maximum penalty. The court must pass a heavy sentence in view of the fact that the maximum penalty is life imprisonment. The penalty should reflect the intention behind the new law.

RELEVANT LAW

Section 229A

Section 229A makes the maximum penalty subject to two variables. It states:

(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.

The penalty regime

It is as follows:

· if, at the time of the offence, the child was aged 12 years or more AND there was not an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to 25 years imprisonment; but

· if, at the time of the offence, either the child was under the age of 12 years OR there was an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to life imprisonment.

Relationship of trust, authority or dependency

This term is defined by Section 6A of the Criminal Code, which states:

(1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where—

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care and control.

Present case

In this case the child who was sexually penetrated by the prisoner was over the age of 12 years. So the key issue is whether, at the time of the offence, there was an existing relationship of trust, authority or dependency between them.

Mr Rangan submitted that the prisoner was regarded as an uncle of the complainant. I accept the submission that there was an existing relationship of trust under Section 6A(2)(c).

Therefore the prisoner is liable to imprisonment for life, under Section 229A(3).

Discretion

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

· a shorter term of imprisonment may be imposed (Section 19(1)(a)); or

· a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or

· the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or

· the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or

· the court can...