The State v Tiama Esrom (2006) N3054

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J
• Judgment Date: 13 April 2006
• Citation: (2006) N3054
• Docket Number: CR.NO.254 OF 2006
• Court: National Court
• Year: 2006
• Judgement Number: N3054

Full Title: CR.NO.254 OF 2006; The State v Tiama Esrom (2006) N3054

National Court: Lenalia, J

Judgment Delivered: 13 April 2006

N3054

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.254 OF 2006

THE STATE

-V-

TIAMA ESROM

Kokopo: Lenalia, J.

2006: 10 & 13 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.

Cases cited.

The State v Penias Mokei (2004) N2635

The State v William Patangala CR.NO.800 of 2004 (22.2.06)

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

Counsel

Mr. L. Rangan, for the State

Mr. M. Peter, for the Accused

13 April 2006.

1. LENALIA, J: The accused pleaded guilty to one count of sexual penetration pursuant to s.229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 aggravated by an existing relationship of trust, dependency and authority and that at the time of the offence, the victim was age nine (9) years.

2. The brief facts of this case is yet another very sad example of how sexual abuse of a little child at the hands of an elderly person who was at the time of this offence between 50 and 60 years whilst the victim was only nine (9) years old.

3. In her statement dated 23rd December 2005, the victim Salome Watutia states that on a date in September 2005, about mid-day, the accused called the victim into the kitchen owned by Leonard Martin and when she came, he asked the victim to lie down on the floor. She obeyed the accused and once she was on the kitchen floor, the accused got on top her and opened her legs and sexually penetrated her.

4. A villager by the name of Waula Martin says in his statement that, about 12 midday on an unknown date in September of 2005, he was scratching coconut for purposes of cocking when he heard the accused called out to the victim. After he had seen the victim walking into the kitchen, he got suspicious that the accused might do something bad to the prosecutrix. Martin knows that the accused has an history of sexual abuse of other children in the village including the accused’s own daughters.

5. Martin came to the kitchen where the accused and the victim were and peeped through a hole on the wall to see what the accused doing with Salome. To his surprise, it was like watching a movie when he saw the accused penetrating the victim. After he had seen them, he walked over to his wife and told her about the sad story of what the accused was doing to Salome.

6. Martin’s wife Catherine Tita immediately called out to the victim. The call came straight after the accused had released his sperm. She immediately got up and attended to the call by answering and walked to where Catherine Tita was calling. When she was asked what the accused had done to her, she revealed to the couple that, the accused had had sexual intercourse with her. She was sobbed when she was talking. The matter was reported to the parents, community leaders and later to the Police.

Law

7. The accused is charged with one count of having carnal knowledge of an underage girl pursuant to s.229A (2) & (3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The offence is aggravated by two factors. First the victim in this case was only nine (9) years when the accused sexually abused her. Under Subsection (2) of the section charged, the prisoner may be sent to life imprisonment. Similarly if the offence is committed with someone with whom, there is an existing relationship of trust, dependency and authority, the penalty is the same as for Subsection (2). That is a life imprisonment can be imposed subject to s.19 of the Criminal Code.

8. The relationship of the accused to the victim bothers this court very much. The victim is the daughter of the accused’s own first born daughter. That is to say, she is the accused’s grand - daughter. For the sake of clarity, I set out s.229A (1) (2) (3) in the following terms:

“(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 prisoner’s case involves the abuse of trust, authority or dependency, a separate offence created by s.229E which carries the maximum term of not exceeding fifteen (15) years imprisonment. The prisoner abused the trust because, the victim is your grand-daughter whom the law expects you to look after and provide care and protection to in time of need and trouble.

10. The accused breached the trust existing between him and his grand daughter. In time of trouble and danger the accused could safeguard the victim and the breach he caused is severe indeed. As already noted the accused is very closely related to the victim. The definition of “relationship of trust, authority and dependency” is defined in s.6 (1) and (2) (a) to (h) in the following words:

“(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 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. Sexual abuse of our young children in this country and particularly in this Province is very prevalent. Very young girls are being abused at very early ages as was the case in the instant case. A child at the age of 9 years is merely a child of very tender age is not capable of having sexual relations with anyone. The courts must view these kinds of abuses to be very serious. There are more then several forms of child abuse such as physical, mental, emotional and sexual abuse.

12. In my view sexual abuse is the most severe kind and I think this form of abuse is what the Criminal Code (Sexual Offences and Crimes Against Children) Act is trying to address. Other types of child abuse are taken care of by other legislations such either the Criminal Code itself or the Summary Offences Act or what it used to be the Child Welfare Act.

13. The next aggravation is that, there was a very big gap age difference between the victim and the prisoner. According to the case of The State v Mitige Neheya [1988-89] PNGLR.174 where there is a substantial age difference, it is an aggravation. I adopt the principles stated in that case and also say that, the breach of trust involved in the circumstances of the present case was severe in nature as the victim is the grand – daughter of the accused. As you were having sex with the little victim, she was calling out for you by saying ‘granny, granny, but you took no notice and continued until you reached orgasm.

14. Under-age children, all youths be they girls or boys alike and even our women are protected by law. They have the right to the protection of law as much as the adults have. Children deserve to be treated with all courtesy due to them just like what is due to any other human beings. Although there is evidence that the prisoner has the habit of molesting very young girls on Watam Island and even his own daughters that is not a consideration before the court.

15. There are many cases either in this Province or elsewhere which show that, under-age children have been subjected to persistent sexual abuse by members of their own families or very close relatives as the facts of the instant case reveals. As the victim shows in her statement, she will have to live with the trauma, guilt and fear.

16. In The State v Penias Mokei (No.2) (26.8.04) N2635 Cannings, J. set out certain considerations which should be considered as a guide to sentencing...