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State v Talei [2021] PGNC 606; N9454 (13 April 2021)

N9454

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 278 OF 2020

THE STATE

V

ROGER TALEI

Alotau: Koeget, J
2021: 08^th, 13^th April

CRIMINAL LAW – sentence – guilty plea – offence of sexual touching – aggravating factors – mitigating factors – consideration of – sentence of 15 years less pre-sentence custody period

Cases Cited

Nil

Counsel
A. Kupmain, for the State
N. Wallis, for the Accused

13^th April, 2021

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Sexual Touching of a minor pursuant to Section 229B (1)(a), (4) and (5) of the Criminal Code Act (as amended).

Facts

2. The accused Roger Talei is the maternal grand father of the victim Getrude Kale.
3. On Thursday 16^th January 2020 at about nine o’clock in the morning the victim was walking to visit her grandmother Emma at Waluma village when the accused called the victim and asked him to follow him to the garden to pick pineapples.

4. She followed the accused along the bush track into the bush and removed the victim’s clothes and he pushed her down to the ground. The accused removed his clothes, laid ontop of the victim and rubbed his penis on her vagina when disturbed by Junior John. The accused stood up wore his clothes and fled the crime scene.

5. The victim was aged eight (8) at the time of the offence.

6. The State alleges that the accused touched the vagina of the victim with his penis for sexual purposes contrary to Section 229B(1)(a), (4) and (5) of the Code (as amended)

Issue

7. The accused pleaded guilty to the charge and was convicted accordingly. The issue for the Court to determine is what is the appropriate sentence the Court should impose upon him.

Personal Particulars
8. He is 56 years of age and is married with three children. He attended Salamo Primary School and completed Grade 6 in 1973.

9. He was employed by Burns Philip BP as a crew on MV Gobiline Auto from 1974 – 1975. From 1980 – 1983 he was employed by New Guinea Motors as an electrical Mechanic. He returned to the village and lived as a subsistence gardener.

Aggravating Factors

10. The victim is of tender age and is his granddaughter. The age gap between himself and the victim is 48 years. There existed a relationship of trust, dependency and authority that was abused by the accused.

11. The accused planned the commission of the offence upon the victim so lured her on the date of the offence to follow him into the bush.

12. The prisoner was convicted by the Esa’ala National Court for committing similar offence upon a minor. The victim in that case is related to him.

13. The National Court sentenced him to be imprisoned for a period of five years in hard labour. The pre-trial custodial period of four months and twenty-two days were ordered to be deducted and he was placed on probation for the remainder of three years, seven months and eight days. The prisoner committed the offence whilst still on probation.

Mitigating Factors

14. He pleaded guilty to the charge and saved valuable time of the Court. There was no weapon used in the commission of the offence. The victim sustained physical injuries. She is well and resides in the village with her parents.

Sentence

15. The prisoner committed the offence on his granddaughter. This is the second time he committed such offence on a minor, related to him. He committed this offence whilst still on probation for the first offence so he breached the probation ordered by the Esa’ala National Court on 17^th March 2017.

16. The prisoner has not learnt his lesson and the commission of the second offence demonstrates he has no respect for the laws of the country. He is a very demeanous person even within his own immediate family so he must be separated from the young children, particularly females of tender ages.

17. So, the balance of previous sentence of three years, seven months and eight days are activated and so he is to continue to serve that sentence.

18. For this present case, the prisoner is sentenced to be imprisoned for fifteen years in hard labour. The pre-trial custodial period of one year, two months and three weeks are ordered to be deducted from the head sentence.

19. The balance of thirteen (13) years, nine (9) months and one (1) week are to be served cumulatively upon the sentence of three (3) years, seven (7) months and eight (8) days.

Accordingly ordered.
______________________________________________________________________
The Public Solicitor: Lawyer for the Accused
The Public Prosecutor: Lawyer for the State