State v Gambu [2013] PGNC 223; N5375 (25 September 2013)

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CRIMINAL LAW – Sentence – Particular offence – Sexual touching – Using your fingers to rub and touch victims vagina area – no bruising or injury – age disparity – Victim 8 years old whilst offender 55 years – 4 years – wholly suspended – S. 229 B(1)(a) & (4) of the Criminal Code Act.

1. GEITA AJ: You pleaded guilty to a charge of sexual touching of a child under the age of 12 years old. You touched the vagina of the 8 year old girl with your fingers for sexual purposes thereby contravening s 229 B(1)(4) of the Criminal Code Act, as amended to date.

Brief facts
2. The relevant facts are these. You and the victim live within the Morokea village oil palm settlement in Kimbe with the victim living with her parents. On the night of 9th July 2009 around 6 pm whilst the victim was returning home from buying a tinned fish for their evening meal, you lured the girl by threatening to harm her with a knife and took her to a neighbouring block and sexually assaulted her. In her own words, grandfather, referring to you, removed his trousers and removed mine and did bad thing to her. Since you have been charged and arraigned for touching her vagina with your fingers for sexual purposes only I will only consider evidence before me on that charge. The victim said you used to give him money: K1, 50 toea, 20 toea though she never asked you for them. She denied holding your private parts until that evening you did bad thing to her. A search was conducted for the missing child and you both appeared from the nearby bushes. Soon thereafter the victim reported the incident to her mother, you were arrested, questioned and you admitted what you did to her. You admitted to committing the similar crime five times previously to the child. At that time she was 8 years old.

(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,

Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding 12 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.

Allocutus
4. In your allocutus you said you were sorry for what you had done to the victim and asked for leniency. You also said you were unemployed and live off your oil palm block with your wife. You also said you were prepared to pay some compensation.

7. A pre sentence report prepared and submitted on your behalf by Community Corrections Officer Mr Walter Salua on 24/9/2013 amongst other recommendations suggest that you are a suitable candidate for probation. I thank the officer for the well researched report and commend him for a job well done. Your advanced age has been raised as a concern by probation office however due to the seriousness of the offence they have left it to the court's discretion.

8. Defence Lawyer Mr. Moses referred me to two cases involving sexual touching. I list them here for ease of reference.

Kagewa Tawang (2005) N2941by Kirriwom J	Guilty plea. Offender 40 yrs, victim 10 yrs, touching of victim's private parts and attempted penetration. Sentenced 6 yrs
State v Thomas Tukaliu N3026 Lanalia J	Guilty plea, Adult male, victim 10 yrs, touching of victim's private parts with his fingers. Sentenced to 5 yrs.

9. Furthermore he submitted on your behalf in mitigation that your prior conviction was 14 years old and he asked the court not to place too much weight on that. When requested to assist court with any known case authorities he said he wasn't able to do that this circuit. The court also was not able to access any case precedent on this circuit although there may be some out there. Due to the seriousness of this case your lawyer submitted that a sentence between 5-6 years with condition is appropriate. I have also been asked to consider using my discretionary powers under Section 19 of the Code.

10. Mr Popeu for the State handed into court a list of comparable sentences by courts in similar sexual touching cases. He submitted that you should be sentenced to a prison term of between 6-7 years due to the huge age disparity between you and the victim's including the victim's tender age. State submitted that you have a prior conviction on rape and the young child has suffered greatly. He called for a tougher sentence on you to stop other people from committing similar offences as this type of offences appear to be committed on a regular basis. Furthermore he said it appears that you have not learnt from your past mistakes.

Decision of the court
11. The first issue is whether the offence committed by the prisoner is of the worst type and whether the court should impose the maximum prescribed sentence. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus [1988] PNGLR 193. The second issue is framed in this question and that is what an appropriate sentence in your case would be? I have had the benefit of submissions from both lawyers on all relevant issues. I also have had the benefit of a pre sentence report presented to me. Furthermore you have said sorry for what you have done. The girl did not sustain any serious injuries but I am sure she must have been really frightened by what you did to her.

12. Due to the foregoing reasons I consider that a head sentence of 4 years would be appropriate in your case which will be wholly suspended. I am sure the seriousness of the crime of grievous bodily will be reflected. Your admissions in your record of interview coupled with your guilty plea have added weight to the suspension of your sentence. I have deliberately refrained from giving any series consideration to your prior conviction of rape as that happened 14 years ago and should not go against you in my view. Furthermore I have also refrained from making any compensation orders as I consider it inappropriate as the child is best left out and not reminded of the ordeal. You must remember that suspension of your sentence is not a sign of leniency on the part of the court.

13. You are convicted and sentenced to four (4) years imprisonment in hard labour. In the exercise of my discretion under s.19 of the Criminal Code and sections 16 & 22 of the Probation Act I make the following orders:

(3) You shall report to a Probation Officer as and when required by the Probation Officer;

(5) 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,

(6) 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

(7) You shall, for the purpose of the Probation Act, allow a Probation Officer to enter your home during reasonable hours; and

Should you fail to comply with any of the above orders you will be arrested to serve your full term of sentence.

Orders accordingly.
__________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

National Court of Papua New Guinea

State v Gambu [2013] PGNC 223; N5375 (25 September 2013)