N6628
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.No.1090 OF 2014

THE STATE

V

JOHN MAI (N0.2)

Kokopo: Lenalia, J.
2016:29th November & 9th December
2017:31st January & 1st February

CRIMINAL LAW – Sexual Touching of underage girl by insertion of fingers into the victim’s vagina – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 – Section      s.229B (5).

CRIMINAL LAW – Sexual Touching – Sentence after finding of guilty – 
Factors for consideration on sentence – deterrent penalty should be imposed. 

Cases cited:

Taiba Maima-v-Sma [1972] PNGLR 49
The State v Francis Tigi (24.7.2013) N5310
The State v Jack Manuel Narakawi (16.4.09) CR.No.924 of 2008
The State v MitigeNeheya[1988-89] PNGLR 174
The State-v-Paul Nelson (25.5.05) N2844
The State v Penias Moke (2004) N2635
The State-v-Peter Lare (2004) N2557
The State v Stafford Hambo(2010) N4120
The State-v-Thomas Tukaliu (2006) N3026
The State v Wasa David Varifa 2007) N3308

Counsel:

Mr. L. J. Rangan, for State
Ms. J. M. Ainui, for the Accused   

1st February, 2017

1.	 LENALIA  J:  The prisoner John Mai you were found guilty one charge of sexual touching an offence contrary to s.229B (5) of the Criminal Code (Sexual Offences and Crimes Against Children Act) 2002. The prosecution evidence upon which the prisoner was found guilty established that when the prisoner and the victim L. W and her twin sister were in their father’s residence at To Guata Police Barracks, the prisoner sexually assaulted the complainant. While the girls were playing in their room, the prisoner asked the victim and her sister to touch and deep their fingers into their vaginas. 

2.	According to the girls’ evidence, they obeyed the prisoner and the prisoner pushed his fingers into the vagina of L.W. After the girls doing this for some time, he later lifted her by placing his hand between her legs and lifted her up above his shoulders and head. While doing that, a neighbor Victoria Boas saw them. Victoria was sitting with other women under another policeman’s house. After seeing what the prisoner was doing to the victim, she called out and asked what the prisoner was doing to L. W. She went to the house where the victim was and when the victim and her sister came down from the house, they told Victoria Boas and Isaiah Banagunan about what the prisoner was doing to them in their room that morning. 

3.	For purposes of the discussion on sentence, I quote the relevant provision under which the prisoner was indicted and found guilty on which is s.229B of the Criminal Code (Sexual Offences and Crimes 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.

(2) For the purposes of this section, “sexual parts” include the 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 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 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”.

Addresses on Sentence

4.	 Allocutus was administered to the accused. He chose to remain silent and said, his lawyer would talk on his behalf. Ms. Ainui addressed the court on the prisoner’s antecedents. He is married with two children. Counsel asked the court to consider the pre-sentence report and the recommendations made in the report which suggests that the offender is a suitable candidate for probation. 

5.	For the prosecution, Mr. Rangan submitted that, this case is aggravated by the fact that there was breached of trust involved and the court ought to consider a penalty that should reflect the seriousness of the crime of sexual abuse with breach of trust. Counsel submitted that this crime is a prevalent offence on this Province and the court should take into account the conditions set out in the Lukautim Pikinini Act set out in sections4 and 5 of that Act. I will return to this later on in the discussion.

Application of Law

6.	The maximum penalty for the crime of sexual touching a victim who is under the age of 12 years pursuant to s.229B (4) of the Criminal Code (Sexual Offences and Crimes Against Children) Act is 12 yearsimprisonment. Like on this case where the victim was then about a little over 9 years the maximum penalty that may be imposed is 12 years. 

7.	For sexual touching on victims under the age of 16 years, the penalty is less that is 5 years difference than that for victims who are under age 12 years. As on the instant case where there was existing relationship of trust authority or dependency, the maximum penalty is subject to Subsections (4)(5)is 12 years imprisonment. The court found the prisoner guilty under Subsection (5). On the instant case, the victim was at the age of 9 years and a month old. As well the offender breached the trust reposed on him by the victim and her family because he was residing with the victim’s family at the To Guata Police Barracks. 

8.	The present case, presents itself in a very serious aggravating circumstances. The theme of the Act is to safe guard the young children of this nation who have become the most vulnerable persons to like offences such as young children and the women from sexual abuse and unwanted sex. As stated there are two statutory aggravations involved. First, the victim a little over 9 at the time the offence was committed her. Under Subsection (4) of the above provision, the prisoner could be sent to jail for 12 years. Added to this is the fact that, as the court found, there was breach of trust because, the offender lived with the family of the victim. So under Subsection (5) the maximum is still 12 years. 

9.	It does not make sense and it is out of human logic and sobriety for offenders to abuse victims like the one on this case where the complainant was just 9 years old.  This is incredible. Persons like the prisoner should know better than our younger generations. The next aggravation is there was a very big age gap between the prisoner and the victim. In sexual case where serious aggravations are present or anyone of them in found in any such cases, the higher the penalty should be: The State v Penias Moke (2004) N2635. I find there were a number of aggravations which I have alluded to on this discussion.

10.	Sexual touching sentencing trends and all sexual cases fluctuate due to the nature and circumstances of each case. In this case there was an existing relationship of trust, authority and dependency as was in the case of The State v Mitige Neheya[1988-89] PNGLR 174. In the case of The State v Jack Manuel Narakawi (16.4.09) CR.No.924 of 2008, a case of sexual touching aggravated by the breach of existing trust of relationship, this court sentenced the prisoner to 5 years imprisonment partially suspended. 

11.	To show or illustrate the sentencing trends adopted by Judges of this Court, I refer to a few similar cases as the instant one. The sentencing trend by the National Court on sexual touching on the recent past has fluctuated depending on the merits of each case. In a case in this Province, in The State vThomas Tukaliu (2006) N3026, the prisoner pleaded guilty to two counts of sexual touching of a 10 years old victim with aggravations of existing relationship of trust, authority or dependency. He had on previous occasions sexually touched the victim many times. He was sentenced to 5 years imprisonment partially suspended. 

12.	In The State v Paul Nelson (25.5.05) N2844, the 65 years old prisoner was sentenced to 3 years for a similar offence. Two years were suspended with conditions. There was no existing relationship of trust and dependency and it was an isolated incident. In The State v William Patangala (22.2.06) N3027, the prisoner pleaded guilty to one count of sexual touching aggravated by existing relationship of trust authority and dependency. It was an isolated incident. He was sentenced to 4 years imprisonment with 3 years suspended on conditions. 

13.	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 did not succeed because, it was due to the victim’s age. He was sentenced to 6 years imprisonment with 2 years suspended on conditions.  

14.	In The State v Peter Lare (2004) N2557 a sentence of 20 years was imposed. The prisoner in that case was an uncle of the victim. The two had a long relationship for about four years over. There was substantial age difference, the prisoner was 40 years while the victim was only 12 years old. The prisoner did not express any remorse to the victim and her parents. The prisoner also infected the victim with a sexually transmitted decease.   

15.	Some of the later cases include involving sexual touching like that of The State v Stafford Hambo(2010) N4120 where the prisoner was charged with five counts of sexual touching under section 229B, taking into account the old age of the prisoner who was 62 at the time as well as a medical condition when sentencing him to six years imprisonment. The presiding Judge, Cannings J made this observation:

“The State v EremanKepas (2007) N3192 I sentenced a 61-year-old male offender to a term of 12 years imprisonment on a charge of persistent sexual abuse of a child, his 10-year-old adopted daughter. The abuse was constituted by five instances of sexual touching and one instance of sexual penetration, which caused serious physical injury to the victim. I indicated that if that offender were to be sentenced disregarding his advanced age and his medical condition, the sentence would have to be amongst the highest ever imposed for this sort of offence, ie in the range of 25 to 30 years imprisonment. However, I regarded the offender’s advanced age and his medical condition as major mitigating factors. I did not feel that the cause of justice would be served by subjecting a 61-year-old man to a 25-year sentence. It would leave him little prospect but to die in prison as an old and ill man. I therefore imposed a sentence of about half of what would otherwise be warranted. I have taken a similar approach in other cases involving offenders of an advanced age who have been convicted of child sex offences, eg The State v KikiaSolowet, CR No 296 of 2006, 24.08.07 (60-year-old man convicted of persistent sexual abuse of his nine-year-old niece, who was living in the family home, sentenced to ten years imprisonment, in circumstances where a prison term of double that length was otherwise warranted) and The State v Arnold Kulami, CR No 737 of 2007, 26.06.09 (50-year-old man convicted of engaging in an act of sexual penetration of his six-year-old niece, sentenced to 17 years imprisonment, in circumstances where a prison term of 25 years was otherwise warranted).”

16.	The instant case is not one of an old aged person. The offender on this case is middle age of about 54 years. 

17.	In another case that of The State v Francis Tigi (24.7.2013) N5310, the offender in that case was found guilty after a trial on one count of persistent sexual abuse of a child under sixteen years old which consisted of sexual touching i. e touching of the victim’s breasts for sexual purposes on many occasions. The victim could not recall the exact number of times, sexual penetration of her vagina by insertion of the fingers and penis but she recalled it was committed on many occasions that the victim could not state the precise number of times except that he did them ‘plenty times’ during a period of one year and three months from 1stJanuary 2009 to 30th April, 2010. 

18.	In the above case, the evidence also included sexual penetration of her vagina by the prisoner’s tongue which was not pleaded in the indictment. The indictment however alleged sexual penetration by insertion of penis inside the victim’s mouth by the prisoner but no evidence was tendered on this. The evidence mostly centered on sexual touching of the breasts of the victim and sexual penetration of the victim’s vagina by both fingers and penis. He was sentenced to 13 years imprisonment. 

19.	In The State v Wasa David Varifa 2007) N3308, the offender was convicted the offender used oil and rubbed it on the body of the two victims on separate times in one day then kissed their vagina and later rubbed his penis in their vagina until he ejaculated. He was charged under 229B(1)(a) and (4) Criminal Code.He was sentence to 7 years.  

20.	The law on the protected age of child is the same here as in other jurisdictions. Children all over the world are the same regardless of their skin color, ethnicity, race and religion. That is why children are the most vulnerable and the most protected human species in the world with so many laws including the United Nations Protocol on the rights of children imposing duty on parents and Member States to protect children. (See the UN Convention or Treaty on the Protection of the Rights of the Child).

21.	This country has sufficient legislations to cater for the interests of children. I mention just a few of them like the Child Welfare Act Chapter 276 consolidated to No 13 of 1990,the Juvenile Justice Act (No. 11 of 2014) was certified on 30 May 2014. However, the Act itself does not state how it will come into force and the Court’s understanding is that at the date of publication of this law according to the InfoBase it is dated 20 January 2016, the Juvenile Justice Act (No 11 of 2014) may have not yet come into operation. 

22.	On the above Act which Mr. Rangan referred to i. e the Lukautim Pikinini Act, sections 4 and 5 of the Act say that the welfare and interest of the child are paramount consideration. Those two sections state:

	“4. Best interests of the child.
In any matter concerning the well-being and rights of the child under this Act, the best interests of the child shall be the paramount consideration.

5. Rights of the child.

A child shall have the right to exercise or demand the exercise of, in addition to all the rights stated or implied in Schedule 1 of this Act, all the rights set out in any domestic laws and the Convention on the Rights of the Child.”

23.	Like any other offences, sexual offences are serious in nature as they infringe on the rights of women particularly if they are committed with force and violence and whereas was in this case, the victim was aged 9 years and one month. The amendment to most of the sexual offences in the Criminal Code was aimed at protecting children against sexual exploitation and abuse. 

24.	The people of Papua New Guinea have decided through their elected leaders in the National Parliament to change the law and express their abhorrence against this sort of conduct. The people have spoken through their leaders indicating that, Papua New Guinea cannot tolerate children being abused. It makes sense, that people must care and respect their children who will be future leaders of this country. 

25.	The general principle of sentencing in criminal practice in this jurisdiction is the maximum penalty is reserved for the worst cases encountered in practice: Taiba Maima v Sma [1972] PNGLR 49, see also Delyn David v The State (2006) SC 881. The maximum penalty available on the instant case is 12 years. This reflects how serious the crime of sexual touching with breach of trust is. 

26.	The court has considered the terms of the presentence report. There are no comments or input by any member of the community and most importantly, none from the victim’s parents. Despite receiving message of the author of the Pre-Sentence Report to come for interview at the barracks they did not turn up. I consider compensation should not be ordered or not appropriate because the prisoner has no means to meet such orders if ordered.

27.	Weighing all factors both for and against you, I note that, those against you outweigh the factors in your favour. I have alluded to the reasons and noted the reasons for the change in the law, particularly, increasing the penalty for the offence you committed from any early prescribed sentence of 5 years to now 12 years, as well as the kinds of sentence that have been thus far imposed for this kind of offence, I consider a deterrent sentence should be appropriate in the particular circumstances of your case compared to the that of the victim. Because you denied the charge, the victim and her twin sister were both called to give evidence. Natasha Wanjik, the twin sister of L. W confirmed in evidence that you sexually touch her sister in her presence.   

28.	 I have given consideration to the possibility of suspension of either the whole or part of that sentence and have decided against the option of full suspension. This is because, first, there is no feedback from the parents of the victim in the pre-sentence report. It is settled law now that there can be suspension of sentence only where special circumstances are present in a case. Secondly, I do not consider that, in the light of the reasons for the changes to the law and in particular, the increase in the prescribed penalties on sexual offences, a non-custodial sentence is inappropriate. This is due to the serious breach of trust you caused to the family of the victim who had cared for you and you were accommodated by the victim’s father at the Barracks.

29.	Having considered addresses by the accused on allocutus and counsels submission on sentence, the court considers the fact that the offender breached the trust placed on him by the victim, her sister and their family. You were living with the victim and her family in their government house at the Police Barracks. You had no fear for the law and the court is of the view that a stiff penalty should be imposed with partial suspension. He is sentenced to 5 years. The court suspends 1 year from this sentence. He shall serve the balance of 4 years. The custody period shall be deducted from such balance and you shall serve the remaining balance. 

________________________________________________________________

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