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State v Pokas [2011] PGNC 106; N4375 (9 September 2011)

N4375

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO. 1126 OF 2009

THE STATE

V

GARRY POKAS

Lae: Sawong, J
2011: 5, 15 August, 9 September

CRIMINAL LAW- Sentence – Particular offence – Sexual touching – Using penis to rub around the victims anus and vagina area – no bruising or injury – age disparity – Victim 8 years old whilst offender 16 years – Victim & offender are related – Breach of trust – Sentence of 3 years – wholly suspended – S. 229 B(1)(a), (4) & (5) of the Criminal Code Act.

Case Cited:

State v. Brady Meki, CR 1478/2006 (unreported & unnumbered judgment delivered on 17/11/06)
State v. Kidoli Sorari (2004) N2553
State v. William Patangela (2006) N3027
State v. Joe Putubu, CR 1042/2006 (unreported & unnumbered judgment delivered on 23/08/06)
State v. Wasa David Warifa (2008) N3308

Counsel:
J. Done & H. Simon, for the State
David, for the Accused

SENTENCE

09th September, 2011

1. SAWONG J: You pleaded guilty to a charge of sexual touching of a child under the age of 12 years old and that there was an existing relationship of trust, authority or dependency. You were charged pursuant to s 229 B(1)(a), (4) and (5) of the Criminal Code Act, as amended to date.
   
2. After hearing submissions on sentence and in the course of preparing my decision, I realized that I needed to gather more relevant information. In particular I noted that the Pre Sentence Report did not contain any view of the local Parish Priest, who had acted as a guarantor. I therefore recalled the matter the next day. The next day, I was given a copy of an Affidavit by Fr. Bai who was present in Court. Counsel, were invited to make any additional submissions on that aspect. And so after hearing them, I adjourned sentencing you to today. You are now being considered for sentence.
   
3. The relevant facts are these. You and the victim had been living with your grandfather and other relatives at your grandfather's house at East Taraka in Lae City. You and the victim are cousins, as your mothers are blood sisters. On the night of 29th April 2007, your cousin sister was fast asleep on the cushion in the living room. She was then aged 8 years old. As she was sleeping, you approached her, removed her clothes and proceeded to rub your penis around her anus area and also around her vagina. When you did that, the girl woke up and saw what you were doing to her and she called your name. You then quickly got off her, put on your clothes and went into your room. Soon thereafter the victim reported the incident to her mother, who questioned you, and you admitted what you did. At that time you were 16 years old.
   
4. In your allocutus, you said sorry to the Court and to your cousin. You said that you now realize that what you did was wrong and asked the Court to place you on probation. You also promised before the Court that you have now learnt a lesson and that you would not commit any offence in the future.
   
5. At the application of your counsel, Ms. David, the Court directed that a Pre-Sentence and Means Assessment Reports be compiled and filed with the Court. This, was done by Mrs. Nablu, the Senior Community Base Corrections Officer. I thank her for the report as it has made my task a little easier. I will refer to the contents of the reports in the course of my judgment a little later.
   

6. Your counsel told me about your personnel particulars and also made submissions on what the appropriate sentence ought to be in your case. It appears that you were 16 years old when you committed the offence. You are now about 18 years old. You completed grade 7 and you were attending first year of joinery and carpentry course at the St. Francis Catholic Church until you were convicted and remanded in custody awaiting your sentence. You were originally apprehended on 15th June 2009 and was remanded in custody until 06th August 2009. You have now been in custody from 15th August 2011 to 09th September 2011. Thus you have spent a total of 2 months and 24 days in custody. This will be taken into account.

7. The issue for consideration is what is the appropriate sentence that should be imposed upon you. Before I refer to the submissions made by the respective Counsels, it is necessary to set out the relevant legal principles on sentence. There are number of pertinent and important legal principle involved in sentencing. It is not necessary to refer to all of them. It is important to bear in mind that it is trite law that each case must be decided on its own facts and circumstances. Another equally important principle is where the offence involves a youthful first offender, the Court should consider all sentencing options in the exercise of its sentencing power.

8. You have been convicted of sexual touching of a girl under the age of 12 years old when there was an existing relationship of trust, authority or dependency, an offence contrary to s. 229 B(1)(a), (4) and (5) of the Criminal Code Act, as amended. It reads:

"229b. Sexual Touching

(1) A person who, for sexual purposes –

• (a) Touches, with any part of his or her body, the sexual
  

parts of a child under the age of 16 years; or

(b) Compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person's own body,

is guilty of a crime.

Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.

(2) For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.

(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

(5) 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 to imprisonment for a term not exceeding 12 years".

9. And so the maximum sentence that could be imposed is 12 years imprisonment. There have been many National Court decision on sentencing offenders who have been convicted of this offence. Your lawyer has referred me to some of those cases. These include cases such as State v. Joe Putube [2006] (unreported & unnumbered judgment delivered 23/08/06). I have considered this and other relevant cases on this subject in considering your sentence.

10. In State v. Brady Meki, CR 1478/06 (unreported and unnumbered judgment delivered on 17/11/06), Kandakasi J, imposed a sentence of 3 years imprisonment on a youthful first offender who had pleaded guilty to sexually touching the victims vagina with his finger. There were no aggravating factors such as breach of any existing relationship of trust, authority or dependency. No injuries were caused to the victim. The victim was 6 years old and the offender was 19 years old.

11. In State v. Joe Putubu, CR 1042/06 (unreported and unnumbered judgment delivered on 23/08/06), Cannings J, sentenced a mature aged man who pleaded guilty to sexually touching a 14 year old girl to a term of imprisonment. The girl was the offender's niece. He touched or held her breasts. No physical injury was caused to her. The learned trial Judge imposed a head sentence of 3 years imprisonment but suspended 18 months of it.

12. From these and other authorities, it appears to me that the sentencing trend for this offence ranges between either wholly or partially suspended sentences to terms of imprisonment. It really depends on the facts and circumstance of each case, the mitigating and aggravity factors, the extenuating circumstance, if any and any other relevant material that goes to their exercise of the Courts sentencing discretionary powers.

13. Counsel for the State, Mr. Simon submitted that there were several aggravating factors the Court should bear in mind. These were that, there was a big age disparity between the victim and the offender, and there was a serious breach of trust and that the offence is a prevalent one. He urged the Court not to rely or give any weight or consideration to the pre-sentence reports. He also submitted that compensation should not be used as substitution of the punishment prescribed by law.

14. In her submissions, your lawyer has urged the Court to take into account in your favour several mitigating factors. These are:

1. Your plea of guilty
   
2. That you had co-operated with the police and readily made admissions.
   

100. That you had expressed genuine remorse for your behavior.
     

4. That you are youthful offender
   
5. That you are first-time offender
   
6. That the victim did not suffer any physical injuries, such as bruising to her genitals
   
7. That you are not a dangerous or hardened criminal.
   

15. As I understand her submissions, it was that the mitigating factors far out-weigh any aggravating factors, such that in the facts and circumstances of this case, the Court should impose a sentence of 3 years imprisonment. She submitted that for the reasons she had advanced, she urged the Court to wholly suspend any sentence that may be imposed and place you on probation.

16. For the purposes of determining an appropriate sentence for you, I have taken into account your personal background and your family background as told to me by your lawyer and your antecedent report. Then in mitigation, I have taken into your favour that you have pleaded guilty. Further you have said sorry for what you have done. The girl did not sustain any injury, though I am sure she must have been really frightened by what you did to her.

17. I also note from the Means Assessment Report that your aunty has forgiven you and that she and her family are prepared to accept K1,000.00 in compensation. The Pre-Sentence Report sets out in great detail all relevant information and it contains a recommendation that you be given a wholly suspended sentence.

18. However, there are aggraviting factors against you which I can not simply ignore. These are that there is big age disparity between you and the girl at the time of the offence. The girl was 8 years old and you were 16 years old, a disparity of 8 years.

19. Secondly, what you did is a serious breach of trust. You molested your own cousin sister. What you did is both morally and legally wrong. It is an unacceptable behavior. I don't know how she will look up to you since this incident.

20. Thirdly, the offence is a prevalent one. Whilst it is a prevalent one, it does not mean that the Court should automatically send such an offender to jail. To do so, would be, in my opinion, a wrong exercise of the sentencing discretion. As was said by Andrew, J in Acting Public Prosecutor v. Clement Maki & Tom Kasen [1981] SC 205:

"Should we then send young people simply because they have committed a prevalent offence and therefore must receive the wrath of the public as well as the Courts? Young people are in the main not too sophisticated in the ways of adults. They are easily led astray. Not too many are hardened criminals or have set on a determined path of life of crime. Where the Courts are able, they have a responsibility to ensure that young people do not offend again. One way to do this is not to incarcerate them but to give them a chance to mend their ways and become responsible citizens, unless it becomes apparent that the young person will not change no matter how many chances he or she is given..."

21. Accordingly, and for the reasons, I have given, I propose to impose a wholly suspended sentence on you. The suspension of the sentence is not a sign of leniency on my part, but it is designed to help you to be a good law abiding citizen in the future. I am giving you a chance to change your ways. The sentence, I am about to pronounce is going to punish you but hopefully becomes your beacon of light in your future. I hope that the short time you have spent in custody, has taught you a lesson and that you realize that committing an offence can send you to jail. I am sure you now realize that jail is not a very nice place to be in. I have taken the risk and responsibility of the way I have sentenced you. Now it is up to you to either take advantage of that or ignore it. Ignoring any of the conditions that I am about to impose upon, may mean you would go to jail and serve the entire 3 years imprisonment.

22. You are convicted and sentenced to three (3) years imprisonment in hard labour. However, pursuant to s.19 of Code and sections 16 & 22 of the Probation Act the Court hereby:

(a) suspends the sentence of imprisonment imposed on you of 3 years.

(b) releases you on Probation from the date of this Order,

with effective from the day you are released from detention with the conditions below:

AND ORDERS THAT YOU BE PLACED ON PROBATION for a period of 12 months from the 09th day of September, 2011 with the conditions below.

1. You shall go and remain at East Taraka until you are contacted by Probation Officer; and
   
2. You shall report to a Probation Officer as and when required by the Probation Officer; and
   
3. You shall keep the peace and be of good behaviour; and
   
4. You shall not change address unless you have given a Probation Officer reasonable notice your intention to do so, and the reasons for the proposed changed; and
   
5. If you move to an area outside the Province, you shall report to Probation Officer of that area within 48 hours of arrival and advise that Officer of the nature and place of your employment and your new address; and
   
6. You shall give your Probation Officer reasonable notice of any intention to change your employment and advise him of nature and place of your proposed employment; and
   
7. You shall, for the purpose of the Probation Act, allow a Probation Officer to enter your home during reasonable hours; and
   
8. You shall not drink or take any alcoholic drinks or dangerous drugs.
   
9. You shall perform 2 hours of community work every fortnight Saturday at St. Francis Catholic Church, West Taraka under the supervision of Fr. Bai or his nominee/delegate during the term of your probation, commencing on 10th September 2011.
   
10. You shall attend Church service every Sunday at the St. Francis Catholic Church, West Taraka, during the probation period.
    
11. You must not commit any criminal offence whilst you are on probation.
    
12. Father Patrick Bai of St. Francis Catholic Church, West Taraka, shall provide a written Report to the Court and Mrs. Nablu every quarter on the progress of the offender.
    

____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused