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State v GP [2014] PGNC 100; N5641 (24 June 2014)

N5641

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 632 OF 2012

THE STATE

V

A JUVENILE, "GP"

Madang: Cannings J
2014: 22 April, 17, 24 June

CRIMINAL LAW – sentence – sexual touching of child – Criminal Code, Section 229B – guilty plea – juvenile (14-year-old male) offender, 4-year-old male victim – neighbours

A juvenile was convicted after trial of the offence of sexual touching of a child under the age of 16 years. At the time of the offence the offender was aged 14 and the victim was aged 4. This is the judgment on sentence.

Held:

(1) The maximum penalty being 12 years imprisonment, it was appropriate to use a starting point of six years and assess the mitigating and aggravating factors.

(2) Mitigating factors: no weapon or aggravated violence used against the victim; the offender was himself a child at the time; the offender is still a child; he cooperated with the Police and the courts and complied with his bail conditions; he has caused no further trouble; expressed remorse; he is a first-time offender.

(3) Aggravating factors: the victim was very young; serious breach of trust; no evidence of active reconciliation with the victim's relatives.

(4) The sentence imposed was three years. The pre-sentence period in custody was deducted and the offender was ordered to spend nine months in custody; the balance of the sentence was suspended on conditions including formal reconciliation between the offender and the victim and their families within three months after release from custody.

Cases cited

The following cases are cited in the judgment:

The State v A Juvenile, "GS", CR 80/2009, 20.05.10
The State v A Juvenile, "JB", CR 66/2012, 18.05.12
The State v A Juvenile, "JF" (2012) N4827
The State v Stafford Hambo (2010) N4036
The State v Steven Archie (2009) N3727
The State v Timothy Bipi (2009) N3608

SENTENCE

This was a judgment on sentence for the offence of sexual touching of a child under the age of 16 years in circumstances of aggravation.

Counsel

F Popeu, for the State
A Meten, for the offender

24th June, 2014

1. CANNINGS J: This is the judgment on sentence for a juvenile offender, "GP", who was convicted after trial of one count of sexual touching of a child under the age of 16 years, in circumstances of aggravation, in that the child, a 4-year-old boy, was under the age of 12 years.

2. The offence was committed on 29 April 2011 in the offender's house. The offender lured the victim to his house by showing him a toy car. There was nobody else there, and the offender removed the victim's trousers and rubbed his penis against the victim's buttocks and ejaculated on to his anus. 3. The offender was 14 years old at the time. He is now aged 17, so he is still a juvenile. He will turn 18 on 25 December 2014.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He stated:

I say sorry to the Heavenly Father and to the Court and to the lawyers for what I have done. I thank my mother who has supported me throughout. I apologise to the complainant and his family. I accept that the Court has found me guilty. I am willing to compensate the complainant and his family.

PRE-SENTENCE REPORT

6. A pre-sentence report prepared by the Community Corrections and Rehabilitation Service shows that GP is the third-born in a family of ten children. He has seven brothers and two sisters. He is strongly supported by his parents and other family members. He has a grade 8 education and is in his second year of a building skills course at a Vocational Centre. He wants to find employment as soon as he can. His health is sound. He is highly regarded by local community leaders. He has not been in trouble with the law before.

7. The victim's father says he was disgusted by the offender's actions when he first found out about the offence committed against his son. He fears that his son, who is now seven years old, has been psychologically damaged. He wants the offender dealt with sternly so that other like-minded individuals will be deterred from committing similar crimes. He is disappointed that the offender's parents have not taken the initiative in sorting out the matter, through reconciliation, which has resulted in the matter dragging on for three years. But the damage has been done, he says, and everyone involved has to reconcile and resolve their differences once and for all.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mrs Meten highlighted the fact that the offender committed the offence when he was a child himself, and he is still a child; he does not cease to be a juvenile until he attains the age of 18 years. He has no prior convictions. There was no physical violence involved. A sentence of no more than three years should be imposed, all of which should be suspended subject to payment of compensation.

SUBMISSIONS BY THE STATE

9. Mr Popeu agreed that a sentence of three years would be appropriate.

DECISION MAKING PROCESS

10. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

11. The indictment was presented under Section 229B (sexual touching) of the Criminal Code, which states:

(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.

12. The circumstances of aggravation prescribed by Section 229B(4) were charged in the indictment. The maximum penalty is therefore 12 years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

13. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a 'starting point' for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. The actual sentence imposed can be above, below or the same as the starting point depending on whether the aggravating factors outweigh the mitigating factors (resulting in a sentence above the starting point); the mitigating factors outweigh the aggravating factors (resulting in a sentence below the starting point); or the mitigating and aggravating factors are balanced (resulting in the starting point being the sentence). In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of six years as the starting point.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

14. As I pointed out in The State v Stafford Hambo (2011) N4120 most sentences for adult offenders for the offence of sexual touching of a child have fallen within the range of three to six years depending on the circumstances of each case and whether the offender has pleaded guilty. Where the offender is also a child the sentences have been lesser. Three recent cases provide useful points of reference.

15. In The State v A Juvenile, "GS", CR 80/2009, 20.05.10 the 13-year-old male offender was under a quilt with the 6-year-old victim and put his hands inside her underwear and touched her vagina with his fingers. He pleaded guilty and was sentenced to two years in custody, without suspension.

16. In The State v A Juvenile, "JB", CR 66/2012, 18.05.12 the 14-year-old male offender was playing with the victim, an 8-year-old boy, and took him into the bush where he placed his penis against his anus while attempting penetration. The offender was given a sentence of two years, which was fully suspended due to reconciliation between the offender's family and the victim's family.

17. In The State v A Juvenile, "JF" (2012) N4827 the male offender was 15 years old when he committed an offence against his 11-year-old stepsister, by placing his penis against her vagina and ejaculating on her thigh, while she was sleeping. He was sentenced to three years imprisonment, without suspension.

STEP 4: WHAT IS THE HEAD SENTENCE?

18. The head sentence will reflect the following mitigating and aggravating factors.

19. Mitigating factors:

• no weapon or aggravated violence used against the victim;
• the offender was himself a child at the time;
• the offender is still a child;
• he cooperated with the Police and the courts and complied with his bail conditions;
• he has caused no further trouble;
• he expressed genuine remorse;
• he is a first-time offender.
  

20. Aggravating factors:

• the victim was very young;
• serious breach of trust;
• no evidence of active reconciliation with the victim's relatives.
  

21. There are more mitigating factors than aggravating factors so a sentence below the starting point is warranted. This case is more serious than the cases of "GS" and "JB". I fix a head sentence of three years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

22. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment, the whole of the pre-sentence period which is 1 month, 3 days.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

23. The decision whether to commit a juvenile offender to prison and the decision whether to suspend part or all of a sentence are amongst the most difficult for any Judge. In making those decisions in this case I have taken into account the matters prescribed by Section 31 (factors to be taken into account in committal to imprisonment or custody), which states:

In reaching a decision as to whether a juvenile should be committed to imprisonment or custody, the Court shall take into account the following factors:—

(a) the seriousness of the offence and the circumstances in which it was committed;

(b) the age, maturity, education, health, character and attitude of the juvenile;

(c) the juvenile's parental and family background as well as the social and community environment in which he lives and to which he is likely to return;

(d) the juvenile's previous history in respect of offences and his responses to previous orders in relation to those offences;

(e) the community services and facilities that are available to assist the juvenile and his willingness to use those services or facilities;

(f) any proposals that the juvenile or his parents may put forward for the future improvement of the juvenile;

(g) any views of a Juvenile Court Officer in relation to the juvenile;

(h) any views of any person who is involved in the education or custody of the juvenile;

(i) any other factor that the Court may consider relevant.

24. I have considered all those factors. Those that I consider most relevant in a child sex offence case such as this, where the offender is himself a child, are:

• has there been substantial progress towards reconciliation between the offender and the victim, and between the offender's family and the victim's family?
  
• do the victim and the victim's family support a suspended sentence?
  

25. If the answer to both those questions is no, a prison term will usually be appropriate (eg The State v A Juvenile, "GS", CR 80/2009, 20.05.10, The State v A Juvenile, "JF" (2012) N4827, The State v Timothy Bipi (2009) N3608).

26. If the answer is yes and the victim and the victim's family are willing to reconcile (which almost invariably involves payment of compensation by the offender) and are agreeable to the offender being put on probation, a fully suspended sentence can be a just outcome (eg The State v Steven Archie (2009) N3727, The State v A Juvenile, "GS", CR 80/2009, 20.05.10).

27. In this case the victim's family appears to have been willing to reconcile but has been waiting for the offender's family to take the initiative. 26. In this situation I think the best thing to do is impose a compromise sentence. The offender committed an offence involving sexual violation of a much younger boy, so to signal the seriousness of the matter and to show to the community that the offender is being punished and also provide a deterrent against such behaviour, it is appropriate that he spend some time in custody. The purposes of imposing a custodial sentence can be achieved within a period of nine months. After that the offender will be released on probation, on the following conditions:

(a) must appear before the National Court within one month before the due date of release from custody, to be reminded of probation conditions;

(b) must within seven days after release from custody report to Probation Office in Madang;

(c) must, within three months after the date of sentence, with his family, participate in a reconciliation ceremony with the victim and his family, supervised and witnessed by the Police, the Village Court and the Probation Office, and:

• pay compensation of K500.00 cash + 1 live pig + foodstuffs to the victim;
  
• the victim's family must contribute 5 chickens + foodstuffs;
  

and, within one week after the reconciliation ceremony, the Probation Office shall provide a report of the reconciliation ceremony to the National Court in Madang;

(d) must resume his education full-time at a recognised educational institution as soon as possible;

(e) must appear before the National Court at Madang on 9 April 2015 to prove compliance with conditions;

(f) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

(g) must not leave Madang Province without the written approval of the National Court;

(h) must perform at least three hours unpaid community work each week, as approved by the Court;

(i) must attend his local Church every weekend for service and worship and submit to counselling;

(j) must report to the Probation Office at Madang as and when required;

(k) must not consume alcohol or drugs;

(l) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;

(m) must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of sentence;

(n) if he breaches any one or more of the above conditions, shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

27. The juvenile "GP", having been convicted of one count of sexual touching of a child under the age of 16 years contrary to Section 229B(1)(a) of the Criminal Code in circumstances of aggravation under Section 229B(4) of the Criminal Code, namely that the child was under the age of 12 years, is subject to the following sentence:

Sentenced accordingly.
____________________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender