The State v Ilam Peter (2006) N3090

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 23 August 2006
• Citation: (2006) N3090
• Docket Number: CR No. 947 of 2000
• Court: National Court
• Year: 2006
• Judgement Number: N3090

Full Title: CR No. 947 of 2000; The State v Ilam Peter (2006) N3090

National Court: Lay J

Judgment Delivered: 23 August 2006

N3090

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 947 OF 2000

THE STATE

V

ILAM PETER

Kokopo: Lay J

2006: 21 and 22 June,

23 August

CRIMINAL CODE - s.349(1)(a) - sexual touching - s.347(1)&(2) - aggravated rape - breach of trust - one event - rape of daughter - prisoner aged 50 years - victim aged 20 years - plea of guilty after victim gave evidence - sentence of 14 years imprisonment - one event of sexual touching - touching of buttocks and

Breasts - 6 months imprisonment - sentences to be concurrent - s.349A(e) meaning of “position of trust, authority or dependency”.

Facts

Initially pleading not guilty, after hearing his daughter’s evidence the prisoner pleaded guilty to charges that on a date between 1999-2001 the prisoner pressed his daughter’s breasts and buttocks with his fingers contrary to s.349(1)(a) and s.349A ( e) of the Criminal Code. On a separate occasion he penetrated his daughter’s vagina with his penis without her consent contrary to s.347(1) in breach of a position of trust contrary to s.347(2) and s.349 A (e).

Held

1. The maximum penalty for the s.349 offence occurring prior to the amendments effected by the Criminal Code (Crimes Against Children and Sexual Offences) Act is the penalty of 2 years imprisonment applicable before the amendments. The maximum penalty on the rape charge is life imprisonment because, with the aggravated circumstances charged of breach of position of trust and authority, life was the maximum penalty before and after the amendments.

Section 11(2) of the Criminal Code, Section 37(7) of the Constitution, Baiza Tadu Avona v The State [1986] PNGLR 148, Kape Sulu v The State (2003) N2456; The State v Dibol Petrus Kopal (2004) N2778; The State v John Ritsi Kutetoa (2005) N2814; The State v Moses Jafisa Winga (No 1) (2005) N2952referred to.

2. Whether the accused, in relation to the victim, is in a position of trust, authority or dependency within the meaning of Criminal Code s.349A(e) is generally a question of fact for the trial judge, which is to be determined with regard to the actual relationship between the accused and the victim and not exclusively with regard to the legal relationship with the victim.

3. As a matter of law some persons hold positions in society which prima facie in relation to the particular victim, carry the characteristics which establish a position of trust, authority or dependency, without the need for further proof. The facts of a particular case may displace that presumption.

4. Criminal Code 6A, although not directly applicable to s.349A(e), provides a strong guide to a trial judge of the positions which our society considers prima facie are positions of trust authority or dependency without further proof; unless there is evidence to displace the presumption.

5. “Abuse” is not a separate element of aggravation to be proven. Once the elements of the offence charged and the position of trust, authority or dependency are established, it follows that the position has been abused.

R v Audet, (1996) 2 S.C.R. 171 referred to.

6. The appropriate sentence for the sexual touching is 6 months.

State v Jason Rihata (2005) CR No. 171 of 2005; State v John Ritzi Kutetoa (2005)N2814 referred to.

7. The appropriate head sentence for aggravated rape is 15 years.

The State v Flotyme Sina (No 2) (2004) N2541 referred to.

8. After allowing for the mitigating circumstances of first offender, plea of guilty, single event, no gratuitous violence and other matters submitted by counsel, and noting the head sentence takes into account the aggravating circumstances of the breach of a position of trust, the appropriate sentence for rape is 14 years imprisonment.

Lawrence Hindemba v State (1998) SC593; State v Dii Gideon N2335 (2002); The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi And Issac Sip (No 2) (2004) N2543; James Mova Meaoa v The State [1996] PNGLR 28; The State v James Yali (2006) N2989; State v Marcus Tongit (unreported CR451/2004 20/2/06) CR No.642 of 2003 The State v Albert Rarat 9th August 2006 (unreported). The State v Kaminiel Okole CR No.1033 of 2005 (18th April 2006 unreported, Kokopo); State v Eddie Sam (2004) N2521; State v James Donald Keimou (2001) N2295; State v Tiama Esrom (13th April 2006) CR No.254 of 2006- State v David Duna Burua CR. No.829 of 2005 referred to.

9. One series of events - Sentences to be served concurrently.

State v Sottie Apusa [1988-89] PNGLR 170 and D. A. Thomas; Principles of Sentencing referred to

Counsel:

L. Rangan, for the State

P. Kaluwin, for the Defendant

1. LAY J.: The prisoner was charged with one count of sexual touching contrary to section 349(1)(a) and one count of rape contrary to section 347 (1) and (2), the specified circumstances of aggravation being that he abused a position of authority, trust or dependency; with an alternate charge of incest contrary to section 223(1) of the Criminal Code.

2. When first arraigned the prisoner pleaded not guilty to all charges. At the conclusion of the evidence of his daughter, who was the victim, the prisoner requested to be re-arraigned when he then pleaded guilty to counts one and two, and the alternate charge to count two was struck out on the application of the State.

3. The statement of facts to which the prisoner pleaded guilty was that the prisoner is the natural father of Ilam Anastasia a female aged about 20 years of age at the time of the offence. Between 1999 and 2001 on an unknown date at Vunakabi, he was at home with Anastasia. He pressed the buttocks and breasts of Anastasia with his fingers. These parts are forbidden by law from being touched. Ilam Anastasia did not consent. He abused his position of trust and authority. He was Anastasia's father.

4. Also on an unknown date between 1999 and 2001 at the family home at Vunakabi village Anastasia was at home and went inside the house and was sitting on her bed. The prisoner went inside and ordered Anastasia to sleep on the bed. He spoke to her in a harsh way, he took off her laplap and pants and slept on top of her penetrating her vagina with his penis and released his sperm on the mattress. When he did this he abused his position of trust, authority or dependency because he was her father.

5. On his allocutus the prisoner had nothing to say. The antecedent report indicated no prior convictions.

6. The age of the prisoner was unknown. For purposes of the Evidence Act Section 63 I estimate his age at 50 years. He is married with three children, a United Church adherent, his mother is deceased, his father is alive. He has six brothers and two sisters being the first born in a family of eight. He has never been to school. At the time he was charged he was employed as a cleaner with Vunadidir Local Level Government. In mitigation it was submitted that:

1. He is a first-time offender;

2. he will have to live with the stigma of the crime against his own family ;

3. he made an early admission of count one and assisted the Police in that regard;

4. compensation has been paid;

5. he is no longer a threat to the family;

6. his daughter has made a plea for leniency, there has been some

reconciliation;

7. it is fortunate that the victim gave evidence because it has enabled the court to see the situation at the house;

8. the court should note the Section 96 statement in the record of

interview in lieu of the statement on allocutus;

9. the rape was one off, not repeated;

10. there is no evidence that the sexual touching took place prior to or after the date charged, a one-off incident, the prisoner could not be labelled a sexual predator;

7. It was submitted that the penalty for the section 349 offence should be less than two years because it occurred before this section was amended, it was submitted the sentence for the two offences should be cumulative and a total of four to five years would be appropriate.

8. The State Prosecutor drew to my attention the fact that the two offences took place before the amendment effected by the Criminal Code (Sexual Offences and Crimes against Children) Act. He also submitted that the prisoner did not cooperate to the extent that he forced his daughter to give evidence before changing his plea.

9. A pre-sentence report was submitted by the Community Base Corrections Service, Rabaul. That report revealed that the prisoner had left his family in 1984, leaving his wife to bring the children up on her own. He returned some 14 years later, having fathered three children from another woman in the meantime. The family were living together with the prisoner for four to five years before the offences occurred. The report confirmed that 400 fathoms shell money and K300 cash was paid by the prisoner and his relatives to restore peace before referring the matter to the Police. The victim pleads for leniency so that the prisoner can help out to his wife, the victim's mother. The prisoner owns three blocks of cocoa of which one has been given to his daughter, the victim, when she married. The other two blocks are retained by the family who have depended on them since he has been in custody.

10. The pre-sentence report also records that the prisoner appears to be slightly deaf in the right ear. A medical report dated 13 March 2006 was produced from the Nonga General Hospital. The medical report shows that the prisoner had surgery for hernia repair on the 21 February...