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State v Kukurena [2012] PGNC 268; N4594 (8 February 2012)

N4594


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR. NO 667 OF 2011


THE STATE


V


GIBSON KUKURENA


Arawa: Maliku AJ
2012: 08th of February


CRIMINAL LAW- Sexual touching - Section 229B (1) (a) - Criminal Code Act


CRIMINAL LAW- Sentence after a finding of guilty at a trial – Accused First Offender- Appropriate sentence – Custodial sentence appropriate


Cases Cited:


The State-v- Patangala (2006) N3027
The State-v- Alois Dick (2007) N3220
Goli Golu –v- The State [1979] PNGLR 653
Avia Aihi –v- The State (No.3) [1982] PNGLR 92
Rex Lialu –v- The State [1990] PNGLR 487
The State-v- Joe Putubu (2006) N4486


Counsel:


Mr Kivu, for the State
Mr. Misil Yawip, for the Accused


SENTENCE


8th February, 2012


  1. MALIKU AJ: The Charge: The accused was charged that on the 13th of February in 2011 at Tugiogu village, Buin District, Bougainville District for sexual purposes touched the breasts of one Esther Matuku thereby contravening Section 299B (1) (a) of the Criminal Code.

Plea


  1. The accused having the benefit of the counsel's advice pleaded not guilty to one count of sexual touching of a child under the age of 16years old.

The Facts


  1. The victim was 15 years old when this trouble occurred on the 13th of February of 2011 and will turn 17 years old in 2012. She had known the accused very well because they are from the same village.
  2. The victim had followed her two aunties to Taragumino village to buy newspapers on the 13th of February of 2011. She returned home walking on the bush track on the left side of the main road when she saw the accused standing on the same track with Thaddeus Kogiau. She kept walking until she reached where the accused and Thaddeus Kogiau were standing and telling stories.
  3. She had just walked past the accused and Thaddeus Kogiau when the accused said good night to her. She kept walking when the accused came and grabbed her from the back telling her to go to the nearby bushes under the cocoa trees, not to shout and to take her clothes off. She refused to take off her clothes. The accused swore "kakani" in Telei language spoken by the accused and the victim which means "kan yu" in pidgin while still grabbing her and touching her breasts and tearing her shirt.
  4. The victim struggled with the accused in order to get herself off and free from him until the accused saw a torch light flashed toward where they were.
  5. The accused was under the influence of liquor and was armed with a grass knife which he threatened to cut the victim's mouth with if she shouted. The accused ran away when he saw the light.
  6. The victim never had any boy/girlfriend relationship with the accused and never made any plans with the accused on the 13th of February of 2011 to meet her in the dark at night. The accused is a cousin to her on her mother's side. The accused had never asked the victim for sex before this trouble.

The central issues in contention


  1. Issue1: Does this matter fall in the worst type or worst category of cases?
  2. Issue2: What is the appropriate sentence to be imposed on the accused?

Allocutus


  1. In his address to the Court on his allocutus the accused said:
    1. I say sorry to the Almighty God the father.
    2. I say sorry to the Court for what I have done.
    3. It is my first time to appear in Court for having committed this offence.
    4. Having said these I ask the court to have mercy on me and place me on Probation Order.

Personal Background:


  1. The accused is 21 years old.
  2. The accused is single person.
  3. The accused completed grade 10 in 2010 at Buin High School.
  4. He is a member of Seventh Day Advantage Church (SDA).

Mitigating factors


  1. Beside personal background of the accused, Mr Yawip for the accused

submitted that the Court should take into account that the accused did not have prior convictions and that the incident was just one of the incident and was not repeated. Mr Yawip also submitted that the Court should take into account the age differences of the victim and the accused. Be that they were too small to engage in such act. There were no physical injuries on the victim. Mr Yawip relied on the case of The State-v- Patangala (2006) N3027 in which the accused pleaded guilty to sexual touching of a child under the age of 14 years. He was sentenced to four years imprisonment of which three years was suspended. The court took into account the following:


  1. The accused paid compensation to the victim's relatives.
  2. No injuries were sustained by the victim.

Aggravating factors


  1. Mr Kivu submits that in relation to the minimal difference of the age of the accused and the victim we submit the amendment of the Criminal Code Act was specifically enacted to protect children under the age of 18 from being sexually touched. The accused was over the age of 18. This is contained in his Record of Interview question 10 and answer 10 while the victim was just 15 years old.

Guideline on sentencing


  1. The guidelines on sentencing is well settled in our jurisdiction in the case

of Rex Lialu - v - The State [1990] PNGLR and is:


"Sentence in any given case will depend on its own peculiar facts.... the Court ought to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty".


I am bound to follow this principle.


  1. I agree with both counsel that maximum prescribed penalties are reserved for the worst type or worst category of cases. This was settled in the case of Goli Golu-v- The State [1979] PNGLR 653 and re stated in the case of Avia Aihi-v-The State (No3) [1982] PNGLR 92 at page 96.

Does this matter fall in the worst category of cases?


  1. Although this matter does not fall in the worst type or worst category it is an aggravated sexual touching because it was committed by the accused aided with an offensive weapon, a grass knife in his hand while grabbing the victim around her body to secure a forceful sexual touching on the victim.
  2. Sexual touching offences were specifically enacted to protect the group of persons prescribed under section 299B (1) (a) of the Criminal Code (Sexual Offences and Crimes against Children) Act 2002.
  3. Sexual touching offences to a large extent are committed with violence and are prevalent in the community and are on the rise. Many of our young girls have become victims of sexual touching and this includes the victim of this matter. The fear of being sexually touched again is one that this victim will live with.
  4. The Court has a duty to impose sentences that will deter the accused from recommitting and others from committing similar offences. The Court also has a duty when imposing sentences to promote a sense of responsibility to the victim by the offender.

The appropriate sentence


  1. Mr Yawip for the accused submitted that the Court should consider 2 to 4 years imprisonment being appropriate sentence for the accused on this matter. Mr Yawip relied on the case of The State-v- Patangala (2006) N3027. In this case the court took into account that the accused had paid compensation and there were no injuries sustained by the victim.
  2. I agree in the present case there were no injuries sustained by the victim but the accused had not paid compensation to the victim and relatives.
  3. Mr Kuvi submitted that the appropriate sentence should be from 3 to 4 years imprisonment. He relied on the case of Tawega Tanang –v- The State (2005) N2941 in which the accused was sentenced to six years of which two years was suspended. Mr Kuvi however submitted the present case fall into the worse category of cases nevertheless Mr Kuvi urged the court to take into account:
    1. The use of a knife by the accused on to the victim.
    2. The use of threat by the accused onto the victim.
    3. That No reconciliation had been made to the victim and relatives by the accused.
    4. The prevalence of this type of offence in this part of the country.

Address to the accused


  1. You were found guilty of sexual touching of one Esther Matuku on the 13th of February of 2011 after the Court heard the evidence from the State witness and from you.
  2. I heard what you told me in your allocutus.
  3. I also heard what your counsel told the Court to consider in your favour.
  4. I also heard what the lawyer for the State said about the appropriate sentence this Court is to impose on you.

Conclusion


  1. In conclusion taking into account the interest of the State and the circumstances of the accused a custodial sentence is appropriate for this matter.
  2. Accordingly the accused is sentenced to three years imprisonment of which 18 months is suspended and the accused shall serve the balance. His bail of K200.00 shall be refunded.

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

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