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State v Was [2017] PGNC 100; N6740 (8 May 2017)

N6740

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 870 OF 2016

STATE

V

ERIC HASEI WAS

Buka: Bona J.
2017: 26^thApril, 8^th May

CRIMINAL LAW – Sexual Touching – Plea of Guilty – Touching Vagina of Victim – Offence Occurred at the River – Victim did not Consent– Victim is 15 years old – Relationship of Trust, Authority and Dependency - Criminal Code Section 229B (1) (a) and (5).

Cases Cited:

SCR.No.1 of 1984 Re Maximum Penalty [1984] PNGSC 32
State v. Charlie Embere (2006) N6302
State v. John Torie (2015) N5966
State v. Nicholas Kipakpu (2016) N6309

Counsel:

C. Sopa, for the State
C. Momoi, for the Accused

SENTENCE
8^th May, 2017

1. BONA J: The prisoner pleaded guilty to one count of Sexual Touching aggravated by the allegation that at the time of the offence the victim and the prisoner were in an existing relationship of trust, authority and dependency. This offence comes under Section 229B Subsection (1) (a) and Subsection (5) of the Criminal Code Act Chapter 262.

2. The brief facts are that on the evening of the 24^th July, 2015 at Ripin village in Buka, between the hours of 7pm and 8 pm, the prisoner along with his daughter, the victim and the victim’s younger sister went to a nearby river to set fish traps. At the river the prisoner told the two younger girls to stay behind while himself and the victim went further up the river. When they reached a spot away from the other two the prisoner pushed the victim onto the ground, undressed himself and laid down on top of her. He tried to penetrate her sexually but could not so he just rubbed his penis on her vagina. The victim struggled and managed to get away from him. She ran off and hid under a tree until daybreak when she went back to the village and reported the matter and the Police where informed. The prisoner was arrested and charged soon after.

3. On allocatus the prisoner told the Court that he apologise and is sorry to the victim. He also apologised to the Court for what he has done.
He said they have reconciled with all the parties involved in the presence of village Chiefs and Elders in the village. He said this is the first time he has been in trouble with the law and asks the Court to have mercy on him and to put him on probation.

4. The personal particulars of the prisoner are that he is 34 years
old and comes from Ripin village in Buka. He was educated to grade 4 in primary school. He is married with two children and has no formal employment but relies on subsistence farming for his survival. He is baptised and is a member of the Catholic faith.

5. The offence of Sexual Touching comes under Section 229B of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 and is as follows:-

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) .........

Is guilty of a crime.

Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven 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.

6. The State have, in this case, included a circumstance of aggravation under Subsection (5) which means that the maximum sentence has increased from 7 years imprisonment to a period of imprisonment not exceeding 12 years.
However it is now settled law that the maximum term of imprisonment is always reserved for the worst of the offence. See: SCR. No. 1 of 1984; Re Maximum Penalty [1984] PNGSC 32.

7. A Pre-Sentence Report was tendered to the Court which is favourable to the prisoner. He is from Tanapore hamlet in Telatu village in the Petats Constituency of the Buka District. He is married with two children and all depend on him for their livelihood. He was educated up to grade 4 in primary school until 1989 when the Bougainville Crisis interrupted his education. After the Crisis he decided not to go back to school and stayed at home. He has never had any formal employment and no work experience.

8. The victim and the prisoner are related through marriage as the prisoner is married to the victim’s mother’s sister. At the time of the offence the victim was residing with prisoner and his wife who is the victim’s aunt. They have reconciled as a family and the prisoner and his family and the victim’s family are willing to conduct a customary reconciliation ceremony and to restore family relationships. He accepts responsibility for what he has done and has expressed genuine remorse. The prisoner is not regarded as a threat to the victim and her family and is recommended for probation.

9. On mitigation it is submitted on behalf of the prisoner that he pleaded guilty therefore saving the Court time and expense and is a first time offender with no prior convictions. He co-operated with the Police and has a favourable pre-sentence report. The victim has not suffered any serious physical injuries and no offensive or dangerous weapons were used.
Counsel submitted that a sentence in the range of two to four years is appropriate minus the time spent in custody. Further that the sentence be wholly suspended with conditions.
Counsel cited the following cases to support his submissions:

State v. Charlie Embere (2006) N6302 where the prisoner pleaded guilty to one count of sexual touching of the victim’s vagina. The victim was 12 years old and the prisoner was 22 years old. He was sentenced to 4 years imprisonment. One year was suspended and pre-trial custody period was deducted. He served the remainder of the term of imprisonment.

In the State v. Nicholas Kipakpu (2016) N6309 the prisoner pleaded guilty to one count of sexual touching of the victim’s vagina. The victim was 12 years old and the prisoner was 41 years old. He was sentenced to 3 years imprisonment. The sentence was wholly suspended and the prisoner placed on a Good Behaviour Bond.

In the State v. John Torie (2015) N5966 the prisoner pleaded guilty to one count of sexual touching of the victim’s vagina. The victim was 4 years old and the prisoner was 87 years old. He licked the victim’s vagina with his tongue while she was in the house. The prisoner was the victim’s grandfather. He was sentenced to 4 years imprisonment. After the deduction of time spent in pre-trial custody the rest of the term was wholly suspended and prisoner placed on a Good Behaviour Bond.

10. Counsel for the State submits that this type of cases have been quite prevalent in Bougainville and in the New Guinea Islands. The offence occurred between close family members and at the same time the prisoner was in a position of trust, authority and dependency to the victim. The victim was residing with the prisoner and his wife for purposes of attending school and he was her uncle by marriage as the prisoner’s wife is the victim’s aunt. He had authority and trust over her and she was dependent on him.

11. The offence of sexual touching is a serious offence especially when it involves young children. It is also prevalent in this Region and within Papua New Guinea. The victim was 15 years old and the prisoner was 34 years old. She was under his care and guardianship.
However every case should be decided according to its own particular facts and circumstances.

12. The Court takes into account the following mitigating factors –
(a) pleaded guilty thus saving the Court time and expense
(b) first offender with no prior convictions
(c) co-operated with the Police
(d) expressed genuine remorse
(e) did not use any harmful or offensive weapons
(f) victim did not sustain any physical injuries

The Court also takes into account that the offence occurred between close family members and that the prisoner was in a position of trust and authority over the victim and that the victim was dependent on him as an uncle while living under his roof.

12. Taking into account all the relevant factors and submissions from counsel and the authorities cited this Court is of the view that a sentence of four (4) years is appropriate under the circumstances.
The period of one (1) year and six (6) months spent in pre-trial custody is deducted which leaves a term of three (3) years and Six (6) months.
In the light of the favourable Pre-sentence Report and the fact that the community and relatives from both sides are at peace with each other, the rest of the sentence will be suspended and the prisoner will be placed on a Good Behaviour Bond under the following conditions:-

(1) Reside at Tanapore hamlet in Telatu village on Buka Island and not to leave the above address unless he obtains leave from the head of Probation Office at the Buka National Court or the Court.
(2) Keep the peace and be of good behaviour during the duration of the Order which is 3 years and 6 months.
(3) Refrain from taking any form of intoxicating drugs or alcohol for the duration of the Order.
(4) Attend church services and take part in church activities.
(5) Perform customary reconciliation with the victim and her family under the supervision of the village Chief and probation officers.
(6) Pay K500.00 in cash to the victim.
(7) Prisoner to submit himself to Sister Essau Barnabas of the Family Counselling Group in Buka for counselling within a week of the date of sentence. Sister Essau to provide progressive reports to the Probation Service every two months.
(8) Report to the Probation Officer every month for the duration of the Order.

13. The prisoner must note that the breach of any of the above conditions could result in the prisoner being brought back to the Courts and to be sent to prison to serve the rest of the term.

Sentenced Accordingly,
__________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner