The State v Kaminiel Okole (2006) N3052

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J
• Judgment Date: 18 April 2006
• Citation: (2006) N3052
• Docket Number: CR.NO.1033 OF 2005
• Court: National Court
• Year: 2006
• Judgement Number: N3052

Full Title: CR.NO.1033 OF 2005; The State v Kaminiel Okole (2006) N3052

National Court: Lenalia, J

Judgment Delivered: 18 April 2006

N3052

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1033 OF 2005

THE STATE

-V-

KAMINIEL OKOLE

Kokopo: Lenalia, J.

2006: 11th & 18th April

CRIMINAL LAW– Sexual offences – Sexual penetration of minor – Aggravations – Existing relationship of trust, dependency and trust – Penetration of minor and underage child – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. s.229A (2) & (3) and s.229E (1).

Cases cited.

The State v Penias Mokei (2004) N2635

The State v Mitige Neheya [1988-89] PNGLR.174

Mase v The State [1991] PNGLR.88

Acting Public Prosecutor v Konis Haha [1981] PNGLR.205

Wari Mugining v R [1975] PNGLR.352

R v Kison (1976) N584

The State v Paul Nelson (2005) N2844

State v John Ritsi Kutetoa (2005) N2814

State v Thomas Angup (2005) Cr.414 of 2005

State v Tiama Esrom (2006) Cr.256 of 2006

State v Peter Lare (2004) N2557

Counsel

Mr. L. Rangan, for the State

Mr. M. Peter, for the Accused

18 April 2006.

1. LENALIA, J: The accused pleaded guilty to two counts of sexual penetration pursuant to s.229A (2) & (3) and a third count for abuse of trust, authority or dependency contrary to s.229E (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The offences were aggravated by an existing relationship of trust, dependency and authority and the abuse of trust reposed on the prisoner.

Relationship.

2. At the time of the three offences and prior to the time the offences were committed the accused was and is the step-father of the victim. It is clear from the statement of the mother and that of the victim that the victim is the accused’s step-daughter because the accused is married to the mother of the victim. It is clear that the victim’s father is different. This means, the mother of the victim had been married to another man before she got married to the accused in 1986.

Facts.

3. Since 1996, the accused started to sexually abuse the victim. By that year the victim might have been only 9 or 10 years. Although she says in her statement that she was 11 years, when the accused started to abuse her, she would have turned 20 by the date she made the statement to the police in 2005. The accused continued to sexually abuse the victim until late 2004 when she got pregnant.

4. The victim states in her undated statement that, the accused would often have sex with her in the house when her mother was at work during day time. Other times Linda James’ mother would send Lynda and her small brothers and sisters to collect firewood or food from the bush and gardens, but often, the accused would make the little children stay back in the village and he would go with the victim to the garden and he would have sex with her. Sex would often take place at the will of the accused whenever he whished it.

5. The accused became very possessive of the victim resulting in him being very aggressive as he physically abused her. The accused did not allow her to talk with her friends even her close cousins both boys and girls. Whenever the accused felt like having sex during day time when the mother was away at work, he would ask the victim’s brothers and sisters to do some work to keep them occupied and at a distance then he would have sex with Lynda.

6. In 1998, a sexual abuse awareness team came around to Raburua village to campaign against sexual and physical abuses. After such campaign, the accused came to the victim and apologized to her. He stopped abusing the victim for some three months but then renewed sexual abuse until 2004 when the victim got pregnant. The mother of the victim Betty James states in her statement dated 11th of March 2005 that, she got married to the accused in 1986. Before that, she was married to another man and she gave birth to Lynda James on 13th of November 1985. Then since she was working for A.D.N. Distributors Associates she got transferred to Lae. But in 1996, they returned to Rabaul with the accused and she became suspicious of him becoming so aggressive and possessive of the victim.

7. After completing her high school education at Kokopo Secondary in 2002, she scored good results and she was enrolled at Kabaleo Teachers’ College on this Province. Despite being accepted at that college, the accused could not allow her to enter the college. In March of that year, Lynda secured employment with Tropicana Ltd in Kokopo. Whenever Lynda was late from work, the accused would belt her up so much so that, the accused put the victim out from her work.

Law.

8. The accused is charged with three counts. Two of those charges are laid pursuant to s.229A (1) (2) & (3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. Those charges are aggravated by the fact that the victim was under the age of 12 years and secondly, there was an existing relationship of trust, dependency and authority between the accused and the victim. The above section states:

“229A. SEXUAL PENETRATION OF A CHILD.

(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.”

9. The third count is brought pursuant to s.229E (1) of the above law on the abuse of trust. I also set out that section which provides:

“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.

Aggravations.

10. On the first two charges, the accused could be sent to goal for life imprisonment. The rationale behind the legislature fixing life imprisonment for Subsections (2) & (3) is that a child under the age of 12 years is not capable of being sexually abused. Secondly, where a person commits an offence of either sexual penetration or sexual abuse of a child with whom there is an existing relationship of trust, dependency or authority, it is the abuse and breach of trust that children have in their immediate family members such as fathers, mothers, brothers, sisters and all those characters defined in s.6A (1) & (2) of the Act. This section 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

(f) the accused is a counselor 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 or control.”

11. There are other aggravating factors which the court must consider. A part from the fact that, the accused is the step-father of the victim, there was a substantial age difference between the accused and the victim. This fact is an aggravation: The State v Mitige Neheya [1988-89] PNGLR.174, see also The State v Penias Moke (2004) N2635. A man who has sexual penetration with his daughter or step-daughter as was in the instant case commits a grievous morale and social offence against the girl because the victim and the community see the man as the father of the victim.

12. As the facts show the relationship between the victim and the accused is very close and not a distant one. He is the “step-parent” of the victim. Sexual abuse in the instant case continued for a long period of time. It is an offence under s.229D the Act to persistently abuse a particular child and the section carries the maximum of 15 years subject to Subsection (6) of that Section, life imprisonment. You also restricted her education by not allowing her to attend Kabaleo Teachers’ College. Article1. (1)-(6) of the Preamble of the PNG Constitution says that every person should be involved in the process of freeing himself or herself from “every form of domination or oppression” so that each person will have the opportunity to develop himself or herself as a whole person. Education is supposed to be based on mutual respect and dialogue with the motivation to achieve our goals through self-reliant.

13. Coupled with sexual penetration, you abused the victim...