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State v Kaku [2016] PGNC 218; N6411 (24 February 2016)

N6411

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1478 OF 2015


THE STATE


V


KOMA MOIDE KAKU


Daru:Koeget, AJ
2016 :17th & 24th February


CRIMINAL LAW:- Indictable offence – Criminal Code Act IV 2A – Sexual Offences against child – Section 22 9B – Sexual Touching – sentence on plea – child aged 13 years – lack of consent – child mentally retarded – offender acted alone – no weapon used or aggravated physical violence – no physical injury – first time offender – abused of trust and authority – sentencing discretionary powers under Section 19 of Criminal Code Act.


INTRODUCTION


The accused pleaded guilty to one count of Sexual Touching of a girl under the age of 16 years. The charge is brought pursuant to Section 22 9B (1) (a) of the Criminal Code Act chapter 262 (as amended).


FACTS


  1. On the 16th of June 2014 at about 3 o’clock in the afternoon the accused Koma Moide Kaku asked the victim Betty Lasada Simeon, then 13 years of age to follow him to Itagari – Karakara Ward sports field in Daru to have sex in exchange of payment. The victim followed him to the patch of grass near the field and he laid her down on the ground. The accused removed his clothes and he removed the victim’s as well. He could not succeed in penetrating the victim’s vagina so he rubbed his penis on top.
  2. The youths that followed them to Itagari – Karakara sport field chased the accused across the field towards the dwelling houses at Karakara Ward where he was apprehend without clothes on his body. The youths then took him to the Daru police station and handed him over to the policemen at the police station duty counter.
  3. In the meantime, the victim was told by the other youths to wear her clothes and then she was taken to Daru General Hospital for medical examination. There was no evidence of sexual penetration of the victim’s vagina but the top of the vagina where the accused rubbed his penis was wet.

Case Cited:


State –v- Andy [2012] PGNC 227, N779

State –v- Gasane Luna CR No. 266 of 2013

State –v- Paul Nelson [2005] PNGNC 113; N2844


Counsel:


D. Mark, for the State
S. Ifina, for the Accused


24th February, 2016


ARRAIGNMENT


  1. KOEGET, AJ The accused pleaded guilty to the charge of sexual touching of the victim after arraignment.

ISSUE


  1. The only issue for the court to determine is what is the appropriate sentence to be imposed upon the prisoner.

EVIDENCE


  1. The following documents were tendered by consent.

Laboratory test report.

VERDICT


  1. I perused the documents tendered into evidence and I am of the opinion that the materials contain evidence that establish the offence of sexual touching. The prisoner’s guilty plea is confirmed accordingly.

LAW


Section 229 B. 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 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 7 years.

(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 anytime of the offence, there was an existing relationship of trust, authority or dependence 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.”


ALLOCATUS


  1. The prisoner stated:

“I am sorry for what I did to the victim. I say sorry to the parents of the victim. I want to compensate the victim. I will pay the victim with cash of K400.00.

The victim is my cousin brother’s daughter. Myself and the victim are from Samari village, East Kiwai Islands Local Level Government area of the South Fly District, Western Province”.


MITIGATING FACTORS


  1. He is 36 years of age and he is a bachelor. He comes from Samari village in the South Fly District of the Western Province. He is a fisherman and resides at Frog town, a settlement near the Daru General Hospital.
  2. He has two sisters but no brothers and he is the last born in the family. He completed grade 6 at Samari Primary school in 1996 and he has no prior convictions so he is a first time offender.
  3. He spent 6 months in custody at Daru Police Station cells then escape till arrested on Bench Warrant on 15th of February, 2016. So the pre-trial custodial period is not taken into account because he escape from custody and evaded prosecution till arrested on Bench Warrant on 15th February, 2016. He cooperated with the police and has pleaded guilty to the charge, thus saving valuable time of this court.

AGGRAVATING FACTORS


  1. The prisoner knew of the physical and mental disabilities of the victim as he is cousin brother of victim’s father and they are all from Samari village in the Kiwai Islands of the Western Province.
  2. He abused the trust placed upon him by the victim and her parents. He is older than the victim in this case.
  3. There is no evidence of physical harm to the victim nor there is evidence that the victim suffered injuries as a result of the offence committed upon her.

SENTENCE


  1. Such offences are prevalent in Papua New Guinea and courts have sentenced offenders to varying term of imprisonments depending on the facts and circumstances of each individual case. I am guided by the sentences imposed by the Courts in the case of State –v- Andy (2012) PGNC 227; N4779 and State –v- Gasane –v- Luna CR No. 266 of 2013.
  2. In the case of State –v- Andy (supra), the court imposed a sentence of 4 years with hard labour. The period of (2) years was suspended on condition that he be of good behaviour for 2 years after released from prison.
  3. The pre-trial custodial period was deducted from the balance of the sentence and the reminder was ordered to be served in the prison. The Court ordered that the prisoner pays the sum of K1, 000.00 within 3 months from the date of the sentence. His bail money was refunded to him.
  4. In the State –v- Gasane Luna (supra) the prisoner was convicted of 3 counts of sexual touching of a victim and the age gap between the victim and the prisoner was huge.
  5. However, the prisoner had good reputation in the community and had good character prior to commission of the offences.
  6. So the Court impose a total sentence of 6 years in hard labour. The period of 3 years was suspended. The period of 2 years was suspended and the prisoner was placed on Good Behaviour Bond for a period of 2 years. The pre-trial custodial period of 28 days was deducted and he served the balance of the sentence at Bihute Corrective Institution.
  7. In this case, I apply the guide lines in those cases and apply the courts sentencing discretionary powers under Section 19 of the Criminal Code Act so impose the sentence of 4 years in hard labour.
  8. In view of the mitigating factors submitted on the prisoner’s behalf and the fact that no physical harm and injury suffered by the victim, the period of 2 years is suspended and the prisoner is placed on Good Behaviour Bond with following conditions:

Sentence accordingly.


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


Aggravating

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