State v Binga Thomas (2005) N2828

• Jurisdiction: Papua New Guinea
• Date: 02 May 2005
• Citation: (2005) N2828
• Docket Number: CR416 of 2005
• Court: National Court
• Year: 2005

Full Title: CR416 of 2005; State v Binga Thomas (2005) N2828

National Court: Lay J

Judgment Delivered: 2 May 2005

1 Criminal Law—Criminal Code s229A(1) and (3)—sexual penetration of a child under the age of 16—sentence—defendants version of events preferred—prisoner aged 50—victim aged 15 and some months—offence charged part of series of offences against same victim—breach of trust—prisoner treated like brother of victims father—plea of guilty—12 years IHL—indictment must contain any allegation of "circumstances of aggravation"—uncharged circumstances of aggravation cannot be taken into account.

2 The State v Pennias Mokei (No 2) (2004) N2635, The State v Pennias Mokei (No 1) (2004) N2606, The State v Lohori Mau [2003] PNGLR 213, The State v Moki Lepi (No 2) (2002) N2278, The State v Nivi Araba [1999] PNGLR 131, The State v Kenneth Peter (2002) N2336, The State v Miseal Butemo [1984] PNGLR 62, John Aubuka v State [1987] PNGLR 267, The State v Eddie Trosty (2004) N2681, R v Ebulya [1964] PNGLR 200, SCR No 2 of 1981; Re S19(1)(f) Criminal Code [1982] PNGLR 150, Koniel Alar and Hosea Biu v The State [1979] PNGLR 300, The State v Pennias Mokei (No 1) (2004) N2606, The State v Moki Lepi (No 2) (2002) N2278, Public Prosecutor v Tom Ake [1978] PNGLR 469, John Aubuka v State [1987] PNGLR 267, The State v Tobby Tani (1994) N2063, Imiyo Wamela v The State [1982] PNGLR 269, Koniel Alar and Hosea Biu v The State [1979] PNGLR 300, Simili Kara v State [1984] PNGLR 254, The State v Miseal Butemo [1984] PNGLR 62, R v Gabai Vagi [1973] PNGLR 30, The State v Peter Lare (2004) N2557, R v Dales [1995] QCA 329, R v De Simoni (1981) 147 CLR 383, Kingwell v R [1986] 60 ALJR 17, Law v Deed [1970] SASR 374 referred to

Facts

The prisoner pleaded guilty to one count of sexual penetration of a girl under the age of 16, The victim was 15 at the time of the offence charged. The prisoner in his Record of Interview said he had sex with the victim 44 times, all consensual and for money totaling K530 during, and after the middle, of 2003. The victim in her statement said there was some force used and several acts of penetration also took place in 2004.

Held

The proper sentence is 12 years IHL.

The 9 points for consideration in sentence set out in The State v Pennias Mokei (No 2) (2004) N2635 applied.

The age of the accused is a relevant consideration: John Aubuka v State [1987] PNGLR 267, 7(b) in the headnote. The State v Kenneth Peter (2002) N2336; The State v Nivi Araba [1999] PNGLR 131; The State v Moki Lepi (No 2) (2002) N2278; The State v Lohori Mau [2003] PNGLR 213

Where circumstances of aggravation are charged in the indictment they are admitted on a plea of guilty once the Court accepts the plea and enters a conviction: SCR No 2 of 1981; Re S19(1)(f) Criminal Code [1982] PNGLR 150 per Kearney J at p 156 and R v Ebulya [1964] PNGLR 200 per Smithers J at p 231

Circumstances of aggravation, being those defined as such in s1(1) of the Criminal Code, as distinct from those which are merely aggravating factors, which make the case one exposing the defendant to a higher maximum sentence, must be charged in the indictment: The State v Miseal Butemo [1984] PNGLR 62 at 64 and s528(2) of the Criminal Code). R v Dales [1975] QCA 329.

To resolve the conflict between the evidence of the defendant and the victim the version of events from the defendant should be preferred in the absence of sworn evidence from the victim and the defendant; Koniel Alar and Hosea Biu v The State [1979] PNGLR 300 at 307 and Imiyo Wamela v The State [1982] PNGLR 269 at 280 followed and applied.

The view that "it is not an element of the offence under s229A(1) that there was at the time of the offence an "existing relationship of trust, authority or dependency": The State v Pennias Mokei (No 1) (2004) N2606 dissented from, circumstances of aggravation proven but not charged may not be relied upon on sentence : Criminal Code s1(1), s528(2); R v Dales [1995] QCA 329; R v De Simoni (1981) 147 CLR 383; Kingwell v R [1986] 60 ALJR 17

Decision on Sentence

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Lay J: This decision was originally published in Kokopo on 21 April 2005. Since then I have had the opportunity of considering some authorities which were not available to me in Kokopo because of communication difficulties at that time. I am now re–publishing the decision with reference to those additional authorities.

The accused has pleaded guilty to a charge of sexual penetration of a child under the age of 16 years in circumstances of aggravation in breach of trust contrary to the provisions of s229A(1) and (3).

The facts to which the guilty plea was made are that in the middle of 2003 the accused was staying with the family of Antonia Tutu at Kadaulung No 2 Settlement, Warangoi. Antonia was a girl under the age of 16 years, having turned 15 in June 2003. The accused had sexual intercourse with Antonia. The accused, who is about 50 years old, would be looked upon by the victim as a person who would look out for her welfare.

The depositions contain the victim's statement that there was sexual intercourse on more than one occasion, that on each occasion the accused would trip her up so that she fell to the ground, have sexual intercourse then give her money. Then in the accused's record of interview he says he had sex with the victim 44 times during 2003 and on each occasion the victim asked for money beforehand.

The accused is 50 years old, single, his parents are dead, He has one adult sister. He comes from Simbai in the middle Ramu. He has resided at Warangoi since the late 1970's. He has no formal education nor formal employment. He works on his own vanilla, cocoa and betel nut block on which he has constructed a permanent material house. There is no one to look after the accused's block, his brothers live far away. He says he took the matter of the sexual intercourse with the victim to the village Committee to sort it out, but they took it to the Police.

Counsel submits that I should take into account as mitigating factors, the guilty plea, that the accused is a first offender, there was no physical injury to the victim, and that the victim did not become pregnant. The statement by the prisoner that there were 44 acts of sexual intercourse, it was submitted, should be weighed against the victim's claim of some force and the allegation that the victim asked the accused for money, and that I should prefer the prisoner's version that the penetration was consensual.

Counsel for the prisoner also submitted that I should view the evidence of a breach of trust with some suspicion. I pointed out to Counsel that he had allowed his client to plead guilty to a charge containing that element. Nevertheless Counsel submitted that on sentence I could take into account that the evidence to support that element was weak. In the depositions the victim speaks of the prisoner as being treated like a brother to her father. The prisoner had lived on the victim's fathers land for 30 years, even before the victim's father was married. I infer that...