State v Binga Thomas (2005) N2828

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

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

National Court: Lay J

Judgment Delivered: 2 May 2005

PAPUA NEW GUINEA

(NATIONAL COURT OF JUSTICE)

CR416/2005

STATE

V

BINGA THOMAS

LAY J.

KOKOPO

2005: 11th and 21st April

PORT MORESBY

2005: 2ND May

Decision on Sentence

Counsel

Mr Rangan for the State

Mr Siminji for the prisoner

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.

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 N2635 State v Penias Mokkie applied.

The age of the accused is a relevant consideration: John Aubuka v State [1987] PNGLR 267,7(b) in the headnote. N2336 The State v Kenneth Peter; N1849 The State v Nivi Araba; N2278 State v Moke Lepe ; N2430 The State v Lohou Mau

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 p231

Circumstances of aggravation, being those defined as such in Section 1(1) of the 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 @ 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 State [1979] PNGLR 300 at 307 and Imiyo Wamela v State [1982] PNGLR 269 at 280 followed and applied.

The view that “it is not an element of the offence under Section 229A(1) that there was at the time of the offence an “existing relationship of trust, authority or dependency”: N2606 State v Pennias Mokei (No.1) dissented from, circumstances of aggravation proven but not charged may not be relied upon on sentence : Criminal Code ss1(1), 528(2); R v Dales [1995} QCA 329; R v De Simoni (1981) 147 CLR 383; Kingwell v The Queen[1986] 60 ALJR 17

_______________________________

This decision was originally published in Kokopo on 21st 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 the prisoner has been in the victim’s life from her birth.

The State Prosecutor submitted that a long term of years was appropriate because of the age difference of some 35 years, the breach of trust, the evidence of force and the fact that it was part of a pattern of 44 similar offences admitted to by the prisoner in his Record of Interview.

S229A reads as follows:

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) …

(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.

Prior to the amendment to the Criminal Code by the Sexual Offences and Crimes Against Children Act this crime was dealt with by ss216, now repealed, which provided:

1 A person who

a Has or attempts to have unlawful carnal knowledge of a girl under the age of 16 years; or

b

is guilty of a misdemeanor.

Penalty: Imprisonment for a term not exceeding five years.

(2)…

(3)…

(4)…

By amending the Criminal Code to repeal s216 and enact s229A Parliament clearly intended to provide for a completely new penalty regime with respect to this offence. Parliament wants to protect children by treating sexual offences against them much more seriously than in the past. No assistance can be gained from a review of sentences in s216 cases. The penalty for sexual penetration with a child under the age of 16 years in breach of trust is now the same as the penalty for sexual penetration of a child under the age of 12. I consider therefore that there must be some correlation between the sentences imposed for those two offences.

Both Kandakasi J and Cannings J have noted that where s229A(3) applies the maximum sentence is life imprisonment, the same as for aggravated rape and for murder and that there should be some correlation between the sentences imposed for these offences because they have the same maximum penalty.

1 The State v Pennias Mokkei (infra) at para 11.

1

A number of cases have been reported on sentencing under s229A .In the case of The State v Peter Lare

2 N2557 (20/5/2004) Kandakasi J

2, on a guilty plea, a sentence of 20 years was imposed where the victim was less than 12 yrs (actually 10 years) and the prisoner 40 yrs. The child was an adopted daughter and dependant on the prisoner for her upkeep, the fact of which the prisoner would often remind her. The prisoner had two wives and a number of children. The victim was infected with a venereal disease by the prisoner. There were multiple sexual acts of various types over a period of almost 4 years. There was a serious breach of trust. There was no genuine remorse....