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State v Ukil [2016] PGNC 22; N6195 (18 February 2016)

N6195

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.888 OF 2014

THE STATE

-V-

TAITUS UKIL

Kokopo: Lenalia, J.
2015: 9th, 22nd & 23rd December
2016: 1st, 3rd, 8th 15th, & 18th February

CRIMINAL LAW – Sexual touching – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.229B (1) (a).

Cases cited:

John Elipa Kalabus v The State [1989] PNG LR 195
Maim v Sma [1972] PNGLR 49
The State v. Biason Benson Samson (2005) N2799
The State v James Yali (2006) N653
The State v Kegawa Tanang (2003) N2941
The State v. Ndrakum Pu-Uh (2005) N2949
The State v Penias Moke (2004) N2635
The State v Paul Nelson (2005) N2844
The State v Thomas Tukaliu (2006) N3026
The State v William Patangala (2006) CR.NO.800 of 2004

Counsel:

Mr. L. Rangan, for the State
Ms. P. Kaluwin, for the Accused

18th February, 2016

1. LENALIA, J: The prisoner is charged with one count of sexual touching an offence against s.229B (1) (a) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. After being arraigned, he entered a guilty plea.

2. The brief facts of this case are that the offence was committed on 29th January 2012 at Open Bay Timber yard, Gazelle District, ENBP. By that time the prisoner was working as a welder with Open Bay Timber Company. On the above date, the prisoner had been drinking beer with his friends including Joe Devin, the father of the victim (Melanie Joe). While the victim's father was busy drinking with friends, the prisoner walked up to where the victim was standing and carried her away to Gaby's house. The father of Melanie and other friends started to look for the victim.

3. They came to Gaby's house and found that the prisoner had put the victim down on the bed and she was naked with the prisoner inserting his fingers in and out of the victim's vagina. His trouser was down below his knees. The father of the victim carried her away and the prisoner was reported to police and he was arrested and charged.

Addresses on Sentence

4. On his last say, the prisoner said, sorry for what he did to the victim and said sorry to the victim's parents. He asked the Court to consider, he had been in custody for some time.

5. Ms. Ainui stood in for Mr. Kaluwin submitted for a lenient penalty. Counsel submitted that this case was one of sexual touching and the Court should consider the prisoner's good character and the fact that he pleaded guilty.

6. Mr. Toke on behalf of Mr. Rangan submitted that sexual touching is so prevalent and the court should impose a penalty that will sound the warning to other people and the would be likely offenders that sexual touching of minors is so serious and is quite prevalent.

Pre-Sentence & Means Assessment Reports

7. The court has read comments by the parents of the victim. Both Joe Devin, (the father) and mother Miriam Devin expressed concern that, they were not happy with what the prisoner did to the 3 year old Melanie Joe. In case of Joe (father), his view is that the offender should serve a full term of imprisonment.

Law

7. The provision under which the prisoner is charged is s.229B (1) of the Criminal Code (Crimes and Offences Against Children) Act. It states:

"229B. 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 years to touch, 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 Subsection (4) and (5), imprisonment for a term not exceeding seven years."

"(4) If the child is under the age of 12 years, an

offence 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 and 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".

8. Sexual abuse of children in this country has been addressed by the Parliament. Our legislators passed the Criminal Code (Sexual Offences and Crimes Against Children) Act of 2002 to cater for sexual abuse of children and women. The Act provides for all forms of sexual abuse including sexual touching, sexual penetration, persistent sexual abuse and other abuses directed against children and even pornography.

9. In considering the circumstances of a particular case, Cannings J in The State v. Biason Benson Samson (2005) N2799 restated a list of considerations for sentencing in respect of child sexual penetration cases that he had previously dealt with in The State v. Pennias Mokei (2004) N2635. These considerations were adopted by retired Judge, Lay J in The State v. Ndrakum Pu-Uh (2005) N2949. They are:

(a) Is there only a small age difference between the offender and the victim?

(b) Is the victim not far under the age of 16 years?

(c) Was there consent?

(d) Was there only one offender?

(e) Did the offender use a threatening weapon and not use aggravated physical violence?

(f) Did the offender cause physical injury and pass on a sexually transmitted disease to the victim?

(g) Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?

(h) Was it an isolated incident?

(i) Did the offender give himself up after the incident?

(j) Did the offender cooperate with the police in their investigations?

(k) Has the offender done anything tangible towards repairing his wrong such as offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did?

(l) Has the offender caused further trouble to the victim or the victim's family since the incident?

(m) Has the offender pleaded guilty?

(n) Has the offender genuinely expressed remorse?

(o) Is this his first offence?

(p) Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?

(q) Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

10. I adopt the above considerations and apply them to the circumstances of the instant case. I am of the view that the above considerations are useful guidelines to be considered in sentencing for child sexual penetration cases. I would emphasis the fact that it is for the trial Judge to determine the sentence to be imposed after having regard to all of the circumstances of the particular case before him: The State v James Yali (2006) N653

11. On sentencing trends for charges of sexual touching, sentences vary from case to case basis depending on the facts of each case. For instance in The State v Kagewa Tenant (2005) N2941, the prisoner was charged with one count of sexual touching of the victim who was under the age of 12 years. The prisoner in that case attempted penetration a number of times. He was sentenced to 6 years imprisonment with 2 years suspended on conditions.

12. In The State v Thomas Tukaliu (2006) N3026, the prisoner pleaded guilty to two counts of sexual touching of a 10 years old victim with aggravations of an existing relationship of trust, authority and dependency. He had on previous occasions sexually touched the victim many times. He was sentenced to 5 years imprisonment. Three years were suspended with conditions. He only served 2 years.

13. In The State v Paul Nelson (2005) N2844, the 65 years old prisoner was sentenced to 3 years for a similar offence. Two years were suspended with conditions. Like on the instant case, there was no existing relationship of trust and dependency and it was an isolated incident.

14. I distinguish the present case from cases of sexual touching involving close blood relatives like in The State v Jerald Javigut (2006) CR.N0.93 of 2006 the offender was sentenced to 4 years partially suspended. In The State v William Patangala (2006) CR.N0.800 of 2004, he was sentence to 4 years partially suspended. All the above cases involved breach of trust authority and dependency.

15. It is often said by Judges of this Court that sexual abuse of children and the women in this country has been adequately addressed by the Parliament when it passed the Criminal Code (Sexual Offences and Crimes Against Children) Act of 2002. The Act provides for all forms of sexual abuse including sexual touching, sexual penetration, all form of indecent acts directed at a children, persistent sexual abuse, child prostitution and child pornography.

16. There are a number of serious aggravating circumstances. First the victim was 3 years old. The prisoner was about 36 years when the offence was committed. The age difference was 33 years old. The victim was just a three year old baby. What sexual satisfaction or pleasure did the prisoner get from indecently dealing with the victim in the manner he did to the victim?

17. The victim had been traumatized physically and mentally. I must say this case was one of those serious cases because the victim was 3 years when she was sexually assaulted. The case of Maim v Sma [1972] PNGLR 49 and that of John Elipa Kalabus v The State [1989] PNG LR 195 stands for the proposition that the maximum penalty ought to be reserved for the worse case of a particular crime. On the instant case, I am of the view that, the Court should not impose the maximum penalty as this is not the worse type case.

18. I have considered the prisoner's guilty plea and his statement on allocutus. I have considered counsels' submission on sentence and the terms of the PSR and the MAR. I consider that the prisoner should be given a custodial penalty. He is sentenced to a term of 4 years and 6 months. The time spent in custody shall be deducted and he shall serve the balance.

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