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State v Kanua [2017] PGNC 255; N6944 (18 August 2017)

N6944

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 278 OF 2017

THE STATE

V

KERENGA KUA KANUA

Kundiawa: Salika DCJ
2017: 18^th August

CRIMINAL LAW – Practice and Procedure – charge of sex and touching – s.229B(1)(a), (4) and (5) of Criminal Code breached – sentencing considerations in such cases – sentence of 5 years imprisonment considered appropriate.

Case Cited:
No cases cited.

Counsel:

Ms Roalakona, for the State
Mr M Yawip, for the Prisoner

SENTENCE

18^th August, 2017

1. SALIKA DCJ: IINTODUCTION: Kerenga Kua Kanua pleaded guilty to one count of touching, with his fingers for sexual purposes the vagina of a child namely Noreen Kerenga who was 7 years old and that at the time there was an existing relationship of trust, authority and dependency in that Kerenga Kua Kanua was the uncle of Noreen Kerenga. The charge was laid under Section 229(1)(a)(4) and (5) of the Criminal Code Act.
   

FACTS

2. The facts he pleaded guilty to were that on the 26^th day of August 2016, the accused was with the complainant child at their home at the Elcom Compound here in Kundiawa Town. The complainant child was then seven years old and the accused was her uncle, being her father’s younger brother. Between the hours of 10 and 11 am, the accused Kerenga Kua Kanua had gathered the children including the complainant child and told stories and played with them. The accused then using his fingers touched the complainant child on her vagina. He also said words such as ‘you are sweet like chocolate.’ The complainant child’s grandmother walked in and saw what the accused had done and the matter was reported. The State says that when the accused, touched the complainant child’s vagina, he did so for sexual purposes with circumstances of aggravation in that the child was under the age of 12 years being 7 years old and he was an uncle of the complainant thereby contravening Section 229B (1) (a), (4) (5) of the Criminal Code Act.
   

ISSUE

3. Having pleaded guilty of the charge the Court must now consider what sentence to impose on the prisoner.
   

THE LAW

4. The first reference point to go to is the relevant law that was breached to identify the maximum sentence the Court is authorised to impose. In this case S.229B (1) (a), (4) and (5) were breached and so I must go to those provisions. Section 229B (1) (a), (4) and (5) says:-
   
   • (1) A person who for sexual purpose –
   • (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.

(4) if the child is under the age of 12 years, an offender 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’.

5. The Parliament in its wisdom made sweeping changes to the Criminal Code in 2002, with the view to protect the children of the country against sexual exploitation and abuse: for example a person who sexually penetrates a child under the age of 12 years commits a crime and is liable to imprisonment for life. This was a clear indication and intent of Parliament to ensure that our vulnerable children are protected from such men and women.
   

SENTENCING CONSIDERATIONS IN SEXUAL TOUCHING CASES.

6. The Court in sexual penetrating cases, sexual touching cases and sexual abuse cases will consider the following factors to come to an appropriate sentence:-
   
   • what was the age difference between the prisoner and the victim? victim was 7 and prisoner was 22.
   • was the victim under the age of 12 years? yes
   • what was the form of sexual touching? He touched her vagina with his fingers.
   • did the prisoner cause any physical injury to the victim? no
   • what was the degree of impact on the victim?

Not known

• was this an isolated incident? not known
• Was there a relationship of trust, authority and dependency between the prisoner and the victim? Yes predator is her uncle
• if there was such a relationship was it a distant one or a close one? close one
• did the prisoner give himself or herself up after the incident?
  • - Matter was reported to police
• did the prisoner co-operate with the police in their investigations? yes
• did the prisoner plead guilty? yes
• did the prisoner express any genuine remorse? yes
• is the prisoner a first time offender? yes
• are there any other mitigating factors to warrant a deduction in the sentence? no
• are they any extenuating circumstances to warrant further mitigation of the sentence? no
  

7. Sexual touching offences are usually committed with subtlety and when the predators know there is no one around. If the victims are say 4 and 5 years old they would have no idea what was happening to them. Where the victims are 6,7 and 8 they might have some understanding of their private parts when touching them on their private parts, They could or may feel that, the touching is normal and they will only be playful about it or not pay much or any attention to it. The mind of the predator in the meantime is working overtime to go next step higher to ensure he or she gets his or her sexual gratification. The Courts must protect the vulnerable child to keep the predators separated from the child and the community.
   
8. The maximum sentence for this offence is 7 years imprisonment in relation to sexual touching cases where the victim is under 16 years old, with circumstances of aggravations the sentencing range from 15 to 25 years and life imprisonment depending on the circumstances of a case and the presence of the circumstances of aggravation.
   

MITIGATING FACTORS

9. The following are mitigating factors:-
   
   • (a) he pleaded guilty to this very serious charge
   • (b) he is a first time offender
   • (c) expressed some remorse for his actions
   • (d) no physical injury to victim
     

AGGRAVATING FACTORS

10. The following are aggravating factors:-
    
    • (a) the prisoner is the younger brother of the victim’s father therefore he is the uncle of the victim.
    • (b) in custom the prisoner will be the small father and the victim is his daughter.
    • (c) therefore the prisoner was in a position of trust, authority and dependency.
    • (d) the victim was 7 years old then while the prisoner was 22, the age gap being 15 years.

(e) the victim was under 12 years old.
(f) used trickery to lure the victim into the room.

PERSONAL PARTICULARS

11. The prisoner is now 23 years old and is single. He is the younger brother of the victim’s father. He is educated up to grade 7 in 2011 but left school. He was living with the victim and her parents at the time of the offence.
    

SENTENCE

12. The Criminal Code Act among other laws that deal with children like the Juvenile Justice Act were enacted to protect children from sex predators: Considering this case and taking into account all the mitigating and aggravating factors and that the child did not suffer any physical injury and that he pleaded guilty and is a first time offender. I sentenced the prisoner to 5 years imprisonment because he breached the trust and authority he was given. He has spent 1 year 3 months. That will be taken away from the five (5) years. The balance he will serve is 3 years 10 months.
    

Sentenced accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused