N4649

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 344 OF 2011

THE STATE

V

JOE TOMIGITA MAILAI

Alotau : Batari, J
2011 : 19 November

CRIMINAL LAW – sentence – indecent dealings involving 11 year old victim by adult accused - seriousness of – plea - mitigation – considerations of – 4 years appropriate. 

Cases Cited:

No cases cited.

Counsel:

J W Tamate, for the State
D. Kipa, for the Accused

SENTENCE

19 November, 2011

1.	BATARI, J:	You pleaded guilty yesterday to a charge of indecent act directed at the victim I will refer to only as CJ, a child under the age of 12 years. The incident occurred on 14 October 2008. CJ was then aged 11 years. This is your punishment.

2.	The common facts supporting your charge are that, on the date in question, at Kabulula village, Losuia, Trobrian Island, CJ and her brother were going to their mother in the garden when you called her from the bushes offering her bananas. When she came to where you were, you instructed her to remove her clothes and lie down. You then unsuccessfully attempted penetration so you rubbed your penis against her vagina. You only desisted from your repulsive, callous act when CJ's mother, called out to her.

3.	In your admissions to the police in the record of interview, you defiantly spoke of JC's willingness and a self-serving belief you were not breaking any law. I think the opposite is true. At this day and age when religion, government influences, civil and economic services have permeated the length and breadth of Trobrian Island and for that matter this country, you no doubt know the immorality and illegality of your conduct. 

4.	You no doubt would know what you set out to do against CJ was and is against the law. It is also common sense that young children are incapable of understanding and consenting to sexual activity with adults. And in law, it is immaterial whether a child under 16 years consents to such act. 

5.	Young girls are entitled to feel free, safe and trusting whenever they come across or are in the company of older persons or adults. Because of their susceptibility, they have the right to feel protected and safe when in the company of adults anywhere and at anytime of the day. You breached that trust. You took advantage of CJ in her tender age to sexually violate her.

6.	The facts also showed that it was not a simple act of indecent dealing. CJ came to you, trusting you will deliver on a genuine offer of kindness. It is reasonable to assume that she knows you and trusted you. You lured her into a secluded spot and instead of delighting her with real bananas, you sexually abused her. She may have not responded had she read your real intentions.

7.	Your case is also properly described as sexual touching. From the record of interview and medical reports, the more serious offence of sexual touching should have been preferred. You are lucky to have escaped an offence which carries 12 years maximum imprisonment instead of 7 years.

8.	I take into account, your plea of guilty. This has saved the Court and the State time and expenses to prove your guilt. It has also saved the child victim the trauma of having to relate what you did to her, in court. 

9.	A further consideration for pleading guilty is in principle, the incentive to plead guilty which must be seen in a sentence that adequately represents the fact of a plea supported by other factors like remorse and contrition, young or old age, good background, early admissions, restitution, or compensation.

10.	You were a first offender at 38 years. This implies a trouble free life. However, I do not accept that contention because at your age, you should have been the wiser. You should have known better not to exploit and sexually violate young children for your own sexual gratification. You should be supportive and not pretentious to innocent children. 

11.	Further, the community view is not in your favour as seen from the police witness statement of Paramount Chief Pulayasi Daniel. I am also informed this morning of your prior conviction in the District Court for stealing. That is not contested. It is consistent with a dishonest character. The general sense is that you should be punished with imprisonment. 

12.	I take into account your expression of remorse. It is consistent with your early admissions to the police and plea in open Court. I accept that you are genuinely sorry. You have also asked that your family welfare be considered. 

13.	But there is little information on your family. And there is nothing remarkable about your family background which merits special consideration. Even so, your family welfare was not in your mind when you set out on your evil enterprise. Your lured an innocent child to satisfy your sexual lusts without the slightest regard for the law and the countless injury that may be caused to her, to your own integrity and your family. 

14.	I have also considered your offer to pay compensation. I am least impressed with that. The history of your background from the court records does not make your offer of payment of yam compensation, genuine. 

15.	Your charge is brought under s.229C (1) and (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.The maximum sentence of 7 years imprisonment is prescribed.

16.	Balancing up all the facts for and against you, I conclude that, a term of imprisonment is warranted. I also conclude in the light of the prevalence of sexual offences that, a sentence that serves both personal and general deterrent aspects of sentencing should be imposed to warn like-minded persons against the risk of being caught and penalized for similar- type offences.

17.	Your conduct borders on sexual touching. It falls within the serious category of indecent dealing. A term in the upper end of the sentencing tendency for that offence applies. From the current sentencing range of 3 to 5 years for similar-type offence, a term within the upper range will meet the justice of the case. I do not see any good reasons to suspend the whole or any part of the sentence I am about to impose.

18.	You are sentenced to 4 years IHL. I will deduct 1 year 6 months for the time spent in custody. Your effective sentence is 2 years 6 months. 

___________________________________________________________

Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Accused