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State v Yape [2016] PGNC 73; N6316 (17 March 2016)

N6316

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 539 OF 2015

THE STATE

V

DIDIMAN YAPE

Porgera: Auka AJ

2016: 11^th and 17^th March

CRIMINAL LAW – Sexual Touching – Plea of guilty –Criminal Code (Sexual Offences and Crimes against Children) Act 2002. Section 229B(1)(a) (4) - Factors for Consideration – Aggravation circumstances – victim female aged 6 years while prisoner aged 25 years. Attempt penetration by penis and touch by hand, no threats or injury – compensation paid – Partly suspended sentence- S.19

Cases cited:
Lawrence Simbe v. The State [1984] PNGLR 38
The State v. Ape Handrella (No. 2) N6196
The State v. Badley Maki (15.11.06) N3391
The State v. Francis Keta (CR No. 548 of 200)
The State v. Kagewa Tenang (2005) N2941
The State v. Kuse (2011) (2.6.2011) N4304
The State v. Paul Nelson (2005) N2844
The State v.Penias Mokei (No. 2) (2004) N2635
The State v. Pokas (2011) (9.9.11) N4375
The State v. Thomas Tulalin (2006) N2006
The State v. Titus Ukil (2016) (18.02.16) N6195
The State v. William Patangala (2006) N3027

Counsel:
J. Waine, for the State
R. Bellie, for the Offender

DECISION

17^th March, 2016

1. AUKA AJ: The prisoner pleaded guilty to one count of Sexual touching of Maggie Dickson, a child under the age of 12 years. She was 6 years at the time the offence was committed. This is an offence Contrary to Section 229B (1) (a) (4) of the Criminal Code (Sexual offences and Crimes Against Children) Act 2002. No relationship of trust authority or dependence was pleaded in the Indictment.

2. For the purposes of this discussion and to understand the position and appreciate the Law in relation to sexual touching, I quote the whole Section against which the prisoner offended.

It States;

“S.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 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 subsection (4) and (5), imprisonment for a term not exceeding seven years

(2) For the purposes of this Section, ‘sexual parts’ include 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 person 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 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.

3. The facts on arraignment were that on Tuesday the 24^th of March, 2015 at about 10:00am, the victim was in her house at Mt. Kare. The victim was 6 years old. The prisoner approached her and asked her to follow him to his house to help him in washing his dishes. The victim followed him into his house and whilst inside, he asked her to sleep on the mattress and remove her clothes which she did and prisoner used his hand to touch her vagina.

4. The victim’s statement shows that the prisoner also attempted to penetrate victim’s vagina. There is a medical report dated 24^th February, 2015 which confirmed that there was reddish and inflammation around the Labia major but nil penetration. As well, on the record of interview, the prisoner admitted that he attempted to penetrate victim’s vagina.

5. On his allocatus, the prisoner said he committed the trouble. He has been in custody awaiting his trial. That whilst in custody his relatives paid compensation of K500. 00 cash and 1(one) pig worth K2, 000.00. The prisoner expressed remorse to the victim and finally asked the Court to exercise mercy on him.

6. On mitigation, Mr. Bellie submitted that the prisoner is aged 25 years and come from Mt. Kare, Enga Province. Prisoner is married with one (1) child. Both parents are alive. He is the eldest in the family of two. He never attended any formal education. At the time of the offence prisoner was employed by Sunpit Limited as a cleaner at Mt. Kare and was earning K700.00 per fortnight.

7. Police arrested him on the same day of the offence and was remanded in custody. Prisoner appeared from custody when the court took his plea. He is still in custody up to this day. Hence, the total period in custody for him is exactly 1 year 1 month 16 days up to this date.

8. Mr. Bellie urged the Court to take into account prisoner’s plea of guilty to the offence, the prisoner acted alone, co-operated with Police, victim suffered no injuries and some compensation paid.

9. Mr. Bellie referred the court to the following National Court cases on Sexual Touching offences and submitted for wholly suspended sentence. State v. Paul Nelson (2005) N2844, offender was 65 years old when the victim was 7 years old. The sentence imposed for sexual touching on plea of guilty was 3 years, 2 years suspended on conditions, State v. William Patangala (2006) N3027 offender pleaded guilty to a count of sexual touching, aggravated by an existing relationship of trust, authority and dependency. It was a isolated incident, sentenced to 4 years imprisonment with 3 years suspended on conditions, State v. Ape Handrella (No. 2) N6196 (Lenalia J), offender aged between 60 and 70 years when victim was 5 years, plea of guilty to sexual touching. Sentence of 3 years less the pre-trial custodial term. Remaining term fully suspended on conditions that after release to keep the peace and be of good behaviour for 24 months. And pay compensation of K500.00 to victim within 7 days after release.

10. For the prosecution, Mr. Waine submitted that the present case is serious because there is a large age gap between the prisoner and the victim at the time the offence was committed.

11. Counsel submitted that the victim in the case was 6 years old and was only a very small girl. Counsel urged the court to consider that even though there is no evidence of any physical harm, numerous sexual and other violent offence cases shows that victim’s of such offences continued to suffer ongoing psychological trauma. Also counsel submitted that the offence is very prevalent in the country and urged the Court to impose an appropriate custodial sentence for purposes of deterrence.

12. There is a serious statutory aggravation involved in the present case. And that is the victim was a very little child at the time she was sexually abused. Who in his right mind should want to sexually abuse little children like the victim in the instant case? Here is a victim who is under the age of 12 years. According to subsection (4) of the Section charged, the prisoner could be sentenced to the maximum of 12 years.

13. There is a second aggravation in this case and that is the great age difference between the prisoner and the victim. To sexually touch a little girl like the victim in this case is nonsensical because the prisoner was older and victim is a very little girl. It is also against the Law.

14. The prisoner being an elderly person was expected to look after not only his own child but children of other community members. In doing what he did to that minor, prisoner breached the trust not only of the child but her parents. Prisoner did not think and act like an elderly person.

15. The maximum penalty for Sexual touching of a child under age of 12 years or where there is existing relationship of trust authority or dependency is 12 years. This is subject to Section 19 of the Criminal Code.

16. It is an established principle that the maximum penalty ought to be reserved for the worst type of case.

17. It is also an established principle in Sentencing that each case should be considered on its own facts and circumstances, Lawrence Simbe v. The State [1994] PNGLR38.

18. Also there are certain considerations which should be considered as a guide to Sentencing offenders on charges of Sexual abuse under the Act. These considerations were set out by His Honour Justice Cannings in the case of State v. Penias Mokei (No. 2) (2004) N2635 and have been considered and applied by Judges for Sentencing in respect of child sexual abuse cases. I adopt the considerations and have applied the appropriate ones to the circumstances of the instant case

19. On Sentencing trends for charges of Sexual touching, sentences vary from case to case depending on the facts of each case. For instance in the case of State v. Kagewa Tenang (2005) N2941 Kirriwom J said:

“Recent cases of similar nature have attracted between 3 and 5 years imprisonment. In the State v. Kiddi Korari [2004] N2553 (29.04.04) the offender, a young boy aged 14 years was sentenced to five years after he pleaded guilty to rubbing his fingers around the victim’s vagina. The victim was aged 6 years old and suffered no physical injuries. The other case is the State v. Paul Nelson [2004] N2844, the offender aged 65 years was sentenced to 3 years”.

20. In State v. Kagewa Tenang (Supra) there was a guilty plea, offender aged 41 years – the victim was offender’s brother’s daughter aged 10 years – rubbed penis on the victim’s vagina and sentence of six years IHL imposed.

21. In State v. Thomas Tulalin (2006) N3006 (Lenalia J), the offender a pastor in the Revival Church aged 25 years – victim 10 years – two counts of touching the vagina of the victim – plea of guilty – compensation paid – sentence of five years IHL imposed – 3 years suspended on terms.

22. In State v. Francis Keta (CR No. 548 of 2007) (Lay J) offender 53 years, pleaded guilty to sexual touching of victim’s vagina who was 9 years old. Sentenced to 2 years, 1 year suspended with conditions.

23. In State v. Bradly Maki (15.11.06) N3391 (Kandakasi J) offender pleaded guilty to Sexual touching of victim’s vagina with his fingers. The victim suffered no injuries. Sentenced to 2 years.

24. In State v. Kuse (2011) N4304 (2.6.11) (Canning J). A 58 year old man pleaded guilty to one count of Sexual touching the vagina of a child under the age of 12 years, sentenced to four years. The pre-sentence period in custody deducted and two years suspended.

25. In State v. Pokas (2011) N4375 (Sawong J) a 16 years old boy pleaded guilty to one count of sexual touching a child of 8 years. Sentenced to 3 years fully suspended on probation orders.

26. In State v. Taitus Ukil (2016) N6195 (18^th February 2016) (Lenalie J). A 60 year old man pleaded guilty to sexual touching the vagina of 3 years old. Victim sentenced to 4 years, 6 months, less pre-trial custodial period to serve the balance.

27. Sexual exploitations and abuse of young children are considered very serious. That is why the Parliament has made the commission of any offence against young children very serious.

28. As I said in prisoner’s case the victim was very small girl. She was in no position to appreciate sexual touching with anyone, including the prisoner. What the prisoner did to her was a very serious violation of her right as a person.

29. I note the mitigating factors in this case are the guilty plea, no major injuries suffered by the victim, no prior conviction, he cooperated well with Police and the Court system, he showed genuine remorse to the victim and also paid compensation.

30. The aggravating factors are the victim was a very young 6 years old. There is a great age gap between the offender and the victim and that the offence is very prevalent.

31. I have weighed the factors both for and against the prisoner and I have found that the aggravating factors outweigh the mitigating factors.

32. The Court is of the view that the penalty that is to be imposed must reflect the concern of the community as well as the reflection of the seriousness of the crime of sexual abuse committed upon young children.

33. Finally in view of the maximum penalty for this offence, the aggravating features of the case and the trend of sentences for charges of sexual touching, I impose a sentence of 4 years IHL. The Court suspends 2 years from the head sentence on condition that after serving 2 years he shall keep the peace and be of good behaviour for 2 years. The pre-trial custodial period shall be deducted from the term he is to serve.

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