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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR.NO.511 OF 2015
THE STATE
V
ALBERT KATAKA
Kokopo: Lenalia, J.
2016:23rd, 30th March, 22nd April, 3rd& 6thMay
Criminal Law – Sexual Touching – Plea of guilty – Criminal Code
(Sexual Offences and Crimes against Children) Act s.229B (1).
Criminal Law – Sexual touching – Plea of guilty – Sentence – Under age victim
– Victim under age 16 years was 15 years at time of offence – Factors for consideration – No breach of existing
relationship of trust authority and dependency.
Cases cited.
Maima-v-Sma [1972] PNGLR 49
Stanley Sabiu-v-The State (27.6.07) SC866
State-v-Eddie Trosty (2004) N2681
State-v-Thomas Angup (21.4.05) N2830
The State v Paul Nelson (25.5.05) N2844
The State v Thomas Tokaliu (22.2.06) N3026
The State v Kagewa Tanang (2003) N2941
Legislations:
Criminal Code
Sexual Offences & Crime Against Children Act
Counsel
Mr. L. Rangan, for the State
Mr. P. Kaluwin, for the Accused
May 6th2016
1. LENALIA, J: The prisoner pleaded guilty to one count of sexual touching. This is an offence against s.229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.
Brief Facts
2. On Sunday 21st December 2014, at Kairak Oil Palm plantation, Central Gazelle LLG Kerevat District, between 6pm and 6.30pm, the victim of this case Leonie Gabbie, was along the road pulling or carrying coconut branches to take to her elder sister’s house to make brooms. Two younger siblings Jerolyne and John Daniel had gone ahead of her from where they picked up coconut branches.
3. On her way, the prisoner came out from the oil palm nursery with a bush-knife and pulled her by her shoulder and ordered her to walk fast. She refused and stood still crying. She noticed that the prisoner was so drunk and had a plastic of alcoholic home brew beverage. She stood still and cried. He forced her up onto a hill within the oil palm plantation. He forced her down to the ground and undressed her and slept on top her. He attempted penetration into the victim’s vagina but he could not master any erection to achieve penetration. He tried penetration a number of times but he could not because he was so drunk.
4. He pushed the victim down to his side and seated her between his legs and he started to sexually touch her vagina by inserting his finger in and out of her vagina and her anus and breasts. After doing this to her, he told her if she did not get married quickly, he would marry her and he then released her.
5. I have considered the terms of the pre-sentence report. Those contacted want compensation to be paid to the victim and her relatives. Those contacted on the offender’s side were:
(a) ANITA CHARLES – she is the offender’s aunty. Her comments include the offender’s previous good character. She is prepared to provide financial support to the prisoner for payment of compensation if ordered.
(b) LINUS KATABA – cousin brother of the prisoner. He raised the issue of the offender and the victim having a long relationship of boy & girlfriend and the two had previously exchanged things before they were found out.
(c) WESMIN WAIWAI – another cousin brother of the offender. He commented that since the offender had been a good boy, he should be considered for a lenient penalty. He is willing to donate K500.00 and a life pig for compensation.
(d) OFFENDER – made same remarks as stated in his allocutus. He plans to continue with his work at the Kairak Oil Palm block at Kerevat and asked if he can be given probation orders.
6. Those contacted on the victim’s side were:
(a) LEONI GABBY – the victim was not available for contact.
(b) GABRIEL KEKELVE & RUTH RAMUL – the victim’s parent. Both informed the author that the victim got transferred to Pipipi Primary School at Pomio District. They said, they were very angry with what the prisoner did to their daughter. One sister of the victim had been abused by the offender and he was ordered to pay K800.00 but he only paid K300.00. They said, the offender is a good person in the community. They demand K2, 500.00 and a pig.
(c) Pastor ABEL MARK – Community Representative Pastor of S.D.A Church Pastor at Kerevat was contacted. He is also the Chaplain of the Kerevat Correctional Services. While the offender in custody, the Pastor expressed that the offender is an active member of the church in the jail as he was baptized on 21st November 2015. The Pastor commented that, the offender is eligible to continue his education.
Addresses on Sentence
8. The prisoner said in his last say, he is now sorry for what he did to the victim. He pleaded for leniency on sentence. He said, the victim is his long time girl-friend and he plans to marry her. He said, the court should consider, this was not the first time for them to be out that night.
9. On mitigations, Ms. Ainui asked the court to consider the following extenuating circumstances:
10. Counsel submitted that a lenient sentence should be considered.
11. Mr. Rangan addressed the court on the following aggravations:
12. Counsel asked the court to consider deterrent aspect of any penalty that should be imposed. Counsel referred to the victim’s relatives comments on compensation and if such compensation is considered, the victim should be paid half of any compensation ordered.
Application of Law
13. Like any another crimes, the maximum penalty for the offence of sexual touching under s.229B (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act is 7 years imprisonment. The Above 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.”
14. Under this same provision or section, there are two other statutory aggravations pursuant to Subsection (4) and (5). If a victim is under the age of 12 years and where there exist a relationship of trust authority or dependency between the victim and an offender, the maximum penalty for both Subsections is 12 years imprisonment.
15. On the instant case, there was no existing relationship of trust between the victim and the prisoner. Thus the maximum penalty under s.229B (1) of the Code is seven (7) years.
16. Sentences for sexual touching of victims under the age of 16 years vary from case to case depending on the circumstances of each case. In State-v-Thomas Angup (21.4.05) N2830, the prisoner was charged with various counts of sexual penetration and sexual touching of an underage girl. He was convicted on his plea. The victim was age 12 and the prisoner was 34 years. It was a case involving breach of trust. He was sentenced to 20 years imprisonment.
17. In The State v Kagewa Tanang (2003) N2941, the victim was the daughter of the prisoner’s brother. He pleaded guilty to one count of sexual touching, he was sentenced to 6 years.
18. In The State v Thomas Tokaliu (22.2.06) N3026, a case of sexual touching with aggravations, he pleaded guilty to two counts of sexual touching, he was sentenced to 5 years, two years were suspended with conditions. In The State v Paul Nelson (25.5.05) N2844, a 65 years old man was sentenced to 3 years for a similar offence. There was no existing relationship of trust, authority or dependency.
19. The Supreme Court in Stanley Sabiu-v-The State (27.6.07) SC866 set out some general considerations for a sentencing judge to consider when sentencing offenders for sexual penetration of under-aged children. Sexual penetration of under age children is a heinous crime throughout the country. At paragraph 9 to 10 the Court in that case commented that, where cases involve victims of less than 16 years the parliament clearly stated that offenders who abuse children should be severely punished and that sexual penetration of children under the ages of 12 years is so serious.
20. My respectful view is that, if the Courts be it the District Court or the National Court are too lenient in imposing suspended sentences of very short terms of imprisonment, how would young people learn from those who have been dealt with by the National Court.
21. The fact that, an offender has good character carries less weight and the consideration of deterrence and the need to protect children from child molestation must be given prominence. This court is of the view that, sexual abuse is so prevalent in all communities in this country and the only possible way to get rid of this evil practice is to impose deterrent sentences on those who violate children’s rights. The general principle of sentencing in criminal practice in this jurisdiction is the maximum penalty is reserved for the worst cases encountered in practice: Maima v Sma [1972] PNGLR 49.
22. I consider the appropriate penalty on the current case is 4 years imprisonment. The Court suspends 2 and ½ years from the head sentence on condition that after serving 1 year 6 months, he shall keep the peace and be of good behavior bond for 2 years. The time spent in custody shall be deducted.
23. After he has served his penalty, he shall pay compensation of K1, 000.00. K500.00 of that amount shall be paid to the relatives of the complainant. The other K500.00 of this shall be paid directly go to the victim. The total amount he shall pay in compensation is K1, 000.00.
_______________________________________________________________
The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused.
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