N8523

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 592 OF 2020

THE STATE
-v-
PARTSON TIMOTHY

Kiunga: Koeget, J
2020: 07th, 11th August

CRIMINAL LAW- Indictable offence – Sexual Touching of a minor – section 229B(1),(a) of the Code (as amended) – sentence on guilty plea – exercise of discretion under section 19 of the Code – lenient sentence imposed – pre-trial custodial period substituted for the sentence imposed.

Case Cited: 

Nil

Counsel:

D. Mark, for the State
B. Popue, for the Accused

11th August, 2020 

1.      KOEGET J: INTRODUCTION: The accused is charged with one count of Sexual Touching of a minor under the age of 16 years pursuant to section 229 B (1)(a) of the Criminal Code Act (as amended).

FACT

2.     On the afternoon of 16th March, 2019 at about six 0’clock the accused and the victim in company of other young children told stories at the victim’s house.  The victim fell asleep so the accused carried her into the parent’s house.  The accused proceeded to remove the victim’s clothes causing her to wake up.  The accused threaten to assault her should she shout and alert her family members.

3.     The accused removed his clothes and rubbed his penis on the victim’s vagina.  

4.     He put on his clothes and went away.  This gave the victim the chance to go to the kitchen and report the incident to her uncle Robert Oliver.  The victim was born on 19th October, 2010 so she was over the age of 8 years.

5.     The accused pleaded guilty to the charge.  There are admissions in the record of interview between the accused and the police investigating officer so he was convicted accordingly.

ISSUE

6.     The issue for the court to determine is what is the appropriate sentence the court should impose upon him.

LAW

“Section 229 B – 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 is guilty of a crime.

Penalty:	subject to sub sections (4) and (5), imprisonment not exceeding seven years.

(4)	If the child is under the age of 12 years, an offender under sub section (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

PERSON PARTICULARS

7.     The prisoner is from Busumil village, Telefomin, in the Sandaun Province.  He is 21 years of age and is a bachelor.  He resided at Finalbin village and attended Finalbin primary school.  He was in grade 7 when he committed the offence.  He is a first-time youthful offender.

AGGRAVATING FACTORS

8.     The victim was seven years of age when the prisoner committed the offence upon her.  So the age gap between the prisoner and the victim is 14 years.

MITIGATING FACTORS

9.     The prisoner is a first-time youthful offender.  He co-operated well with the police when he made admissions in the record of interview.  He pleaded guilty to the charge and saved the valuable time of the court.

10.    The prisoner is remorseful when he apologised to the victim and family in court.  This was a case of where the prisoner merely rubbed his penis on the victim’s vagina.  She did not sustain any permanent injuries and she is well as she has fully recovered from the trauma.

11.     The accused has been in custody awaiting disposal of the case for one year and four months.

SENTENCE

12.     The prisoner, a first-time youthful offender committed the offence on an unsuspecting victim, much younger than himself.  He admitted that he was tempted when he committed the offence and apologised to the victim and the family.

13.     In court, the prisoner admitted how foolish he was when he committed the offence and pleaded for leniency in the sentence the court is to impose.  

14.    The prisoner has been in custody for one year and four months awaiting the disposal of the case.

15.     The prisoner merely rubbed his penis on the victim’s vagina.  The victim did not sustain any physical injuries and she has fully recovered from the trauma and is happily residing with her family in the village.

16.     In the circumstances of the case and in the exercise of the court’s discretionary powers under section 19 of the Criminal Code Act, a short sharp sentence ought to be imposed upon the prisoner.  The prisoner has been in custody for one year and four months and in my view that period seems a fair sentence to impose upon him.

17.    So the prisoner is sentenced to be imprisoned for one year and four months in hard labour.  The pre-trial custodial period is substituted for the sentence imposed.  He has already served the sentence and so he is discharged from custody forthwith.

ORDER

1)	The pre-trial custodial period is substituted for the sentence imposed and he is to be discharged from custody forthwith.

Accordingly Ordered.
________________________________________________________________
Public Prosecutor	:	Lawyers for the State
Public Solicitor	:	Lawyers for the Accused