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State v Lorance [2017] PGNC 98; N6738 (8 May 2017)

N6738

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 1480 OF 2016

STATE

V

TOBASI LORANCE

Buka: Bona J.

2017: 26^th April, 8^th May

CRIMINAL LAW – Sexual Touching – Plea of Guilty – Touching Breasts of Victim – Accused was under the Influence of Alcohol – Offence Occurred in the House – Victim did not Consent– Criminal Code Section 349 (1).

Cases Cited:

State v. Haupa [2007] N3186
State v. Lenga [2016] N6283
State v. Yambe [2015] N5992

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 of one Belinda Hetera without her consent contrary to Section 349 (1) of the Criminal Code Act Chapter 262.

2. The facts of the case were that on the 6^th day of April, 2016 the accused was under the influence of alcohol and was walking past the victims house when he saw her sitting alone in the house. The prisoner followed her into her house and grabbed her and touched her breasts. The victim did not give him permission to touch her breasts. He was reported to the Police who arrested him and charged him of the offence.

3. On allocatus the prisoner said that he apologise to the victim and her family. He has also asked God to forgive him so the Court advised him that that was between himself and God and the Court has nothing to do with it.
He then said he is sorry and apologised to the Court and asked the Court to have mercy on him and put him on Probation or a Good Behaviour Bond.

4. Counsel for the Prisoner submits to the Court that his personal particulars are that he is 26 years old and comes from Suni village, Hagogohe Constituency in Buka. He has been educated to grade 8 at Hamatana Primary School. He is baptised as a Catholic and is a member of the Catholic Church.

5. The offence of Sexual Touching comes under Section 349(1) of the Criminal Code Act Chapter 262 and is as follows:-

349 SEXUAL ASSAULT

(1) A person who, without a person’s consent –
(a) touches, with any part of his body, the sexual parts of that other person; or
(b) ..........

Is guilty of a crime of sexual assault.

Penalty: Subject to Subsection (4), imprisonment for a term not exceeding five years.

6. A pre-sentence report was tendered that is very favourable to the prisoner. He hails from Suni village in the Hagogohe Constituency of the Buka District in the Autonomous Region of Bougainville. He is 26 years old and resides with his family in the village. He is married with a three year old little daughter. His marriage relationship is still good despite this problem. The prisoner has completed grade 8 at the Hamatana Primary School in 2000. In 2010 he attended the Vuna Bosco Technical School in Rabaul, East New Britain Province and graduated as a welder in 2011. He was then employed as a painter with Rabaul Shipping until he left and returned home. He now lives as a subsistence farmer and makes copra to earn an income. His wife assists by selling their garden produce at the markets.

7. There has been a partial reconciliation ceremony done between the prisoner’s family and the victim’s family as they are closely related, on the 27^th October, 2016. This was witnessed by the village Chief, Wilfred Semei, who says that both families are now communicating well with each other and with the prisoner.
The victim’s father would like the prisoner to be given a non-custodial sentence.

8. On mitigation it was submitted on behalf of the prisoner that he pleaded guilty therefore saving the Court time and expense and is a first offender with no prior convictions. He co-operated well with the Police as is evident with the admissions in his Record of Interview. He is a young man of 26 years of age, married with a three year old daughter. The victim was 22 years old at the time of the offence.
He has expressed genuine remorse. He says he was under the influence of liquor and it was a spontaneous incident. It was an isolated incident and he was on his own. The victim also did not suffer any physical injuries and no weapons were used.

9. Counsel cited the following cases to support his submissions on sentence. State v. Haupas [2007] N3186 where the prisoner pleaded guilty to one count of Sexual Assault. The prisoner grabbed the victim and managed to remove her under garments and touched her vagina. He was disturbed by passers-by so he ran away. A sentence of three years imprisonment was imposed, pre-trial custody was deducted and he served the rest of the term.

In the State v. Yambe [2015] N 5992 the prisoner pleaded guilty to one count of Sexual Assault. He had pushed the victim to the ground and assaulted her by pushing his fingers into the victim’s vagina. The victim resisted and struggled but the prisoner prematurely ejaculated on the victim and ran away. He was sentenced to two and a half years imprisonment. Pre-trial custody was deducted and the rest of the sentence was wholly suspended and prisoner placed on probation.

In the State v. Lenga [2016] N6283 the prisoner pleaded guilty to Sexual Assault. While the victim was bending down to light a fire the prisoner came from behind and held her and touched her genital area. He then pushed the victim onto the ground but she got up and ran away in tears. He was sentenced to two years and six months but the sentence was wholly suspended and he was placed on probation.

10. Counsel submits that according to the above cited cases the appropriate sentence should be in the range between two to three years imprisonment and further due to the favourable Pre-Sentence Report the sentence should be wholly suspended and the prisoner be placed on probation.

11. The State submits that this is a prevalent offence in this Autonomous Region. The victim was assaulted in her own house when the prisoner trespassed into it. It was an uncalled for assault on a fellow human being. She did not give him permission to touch her breasts or grab her. The fact that he was under the influence of liquor should not absolve him of his unlawful behaviour.

12. The Court takes into account the prisoner’s plea of guilty and the fact that this is his first offence and he has no prior convictions. He has co-operated well with the Police and has expressed genuine remorse and has accepted his wrong-doing. He did not use any harmful or offensive weapons and the victim did not sustain any serious physical injuries.

The families on both sides have reconciled and are now on good terms and communicating well with each other.
The Court also takes into account that this is a prevalent offence in Bougainville that sentences should reflect the seriousness of it.

13. Taking all these factors into account and the cases cited and counsel’s submissions it is the view of this Court that a sentence of three years imprisonment is appropriate under the circumstances. The period of five months in pre-trial custody is deducted so the prisoner will serve two years and seven years imprisonment.

Taking into account the favourable pre-sentence report the remaining period of two years and seven months will be wholly suspended and the prisoner will be placed under a probation order under the following conditions:

(1) Prisoner will reside in Suni village, Buka and will not change his address unless he obtains permission from the Probation officers or the Court.
(2) Prisoner is to keep the Peace and be of Good Behaviour for the period of the Order which is two years and seven months.
(3) Prisoner to refrain from taking any alcohol or other intoxicating drugs within the duration of the Order
(4) Prisoner must attend church services and take part in church activities in the village.
(5) Prisoner must perform customary reconciliation ceremony with the victim and her family within six months to be supervised by the village chiefs and probation officers.
(6) Prisoner must pay K500.00 in cash as compensation to the victim.
(7) Prisoner must not leave the Autonomous Region of Bougainville unless he obtains leave of the Court.
(8) 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.

Bail is refunded.

14. The prisoner must note that the breach of any of the above conditions will result in his arrest and return to prison to serve the rest of the term of imprisonment.

Sentence Accordingly,
___________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner