N2941

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 893 OF 2005

THE STATE

-V-

KAGEWA TANANG

FINSCHAFEN & LAE	:	KIRRIWOM, J
2005	 :	2 August & 13th October

Cases cited:
The State v. Kiddi Sorari [2004] N2553 (29/4/04)
The State v. Paul Nelson [2004] N2844
The State v. Thomas Angup [2005] N2830

Counsel:
J. Done for the State
R. Yombon for the Accused

13th October 2005

SENTENCE

KIRRIWOM, J: The prisoner pleaded guilty to sexually touching the victim CR a child under the age of 12 years with his penis for sexual purposes contrary to section 229B of the Code. This offence carries a punishment not exceeding 12 years imprisonment. The indictment states that between 4th and 30th November 2004 at Buang village the prisoner touched the victim’s vagina with his body, namely, his penis, for sexual purposes, the victim was then a child under 12 years. On arraignment the accused admitted the committing the offence but said that he did it only once.
The facts are that on 4th November, 2004 at Buang Village inside a house the prisoner was alone with the victim a child aged 10 years old. She is the daughter of his brother. While alone with the victim the prisoner played with the victim’s vagina with his finger and then laid her on the floor where he used his penis and attempted sexual intercourse but could not penetrate so rubbed it round the vaginal wall.

The victim claimed that the prisoner did the same thing to her on four different occasions but the accused denied all except one. She said on each occasion he gave her K1, K2 or even .50 toea as bribe to prevent her from speaking out.

All these assaults took place in the absence of the mother who was in Lae. She discovered after she returned to the village and took the victim to Braun Memorial Hospital where medical examination confirmed the assaults and she reported the matter to the police.

The prisoner is related to the victim. According to the evidence from the victim’s mother, the record of interview and the victim herself, the prisoner is the victim’s uncle, her father’s brother.

The prisoner is liable to go to prison to 12 years. This penalty is provided under subsection (4) of section 229B. Section 229B states:

(1)	A person who, for sexual purposes-

(a)	A person who, for sexual purposes-
the age of 16 years; or
(b)	compels a child under the age of 16 years, with 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 Subsections (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 offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

(5)	If, a 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.

This section is one of those recent amendments that came into force two years ago giving effect to greater protection of child victims of violent crimes. In offences of sexual nature involving young children being sexually abused by adults, parents and close relatives are the most common law-breakers. This is why the Parliament must be commended for including in the amendments as a separate offence in itself on abuse of trust, authority or dependency under section 229E. Because even at the ages of 16-18 or even 20, a female victim of sexual violence who stands in a special relationship of trust, authority or dependency on her attacker will often find herself helpless to avoid or escape his persistence sexual abuse of her it her entire livelihood was dependent on maintaining the status quo.

This is a classical case where the prisoner took advantage of the special relationship between him and the victim and in an intimate environment he succumbed to his sexual desire and defiled his own niece. The prisoner is not a young man, he is matured man aged 41 years old and married with five children. He is a very up-right citizen in his community which is unquestionable. Because of his unblemished character and background in the village the community appointed him as a Church Elder. He is a member of the Lutheran Church like all the others in the District which is predominantly of Lutheran faith. He involves himself in a lot of community work that promotes Youth and Women Groups and Non Governmental Organizations.

He expressed remorse for his actions and I accept that he was sincere about it. He did not try to find excuse for his action. He blamed the devil for taking the better of him and he apologised for what he did. He expressed concerns for his wife’s asthmatic condition. He also expressed concerns for his cash crops (coconut, coffee and vanilla plots) as well as his pigs and chickens.

There is no question that the prisoner comes to Court with an unblemished record. He maintained a very law abiding and hard-working life until he committed this offence. This is considered heavily in his favour. He maintained good leadership qualities even with his very limited education of Grade 6.

In considering an appropriate penalty, I bear in mind his plea of guilty, expression of remorse, prior good record and his exemplary good background commanding good community support and respect until this trouble.

But a law has been broken which is very serious. In the repealed Criminal Code this offence was knows as Indecent Assault or Indecent treatment of Girls Under 16 –see s.217 (repealed) which carried a maximum penalty of five years if the victim was less than 12 years. But the Parliament saw that his penalty was too low with the rising incidences of this offence by now lifting the maximum penalty to 12 years. This increase in the penalty reflects the seriousness with which the Parliament sees this offence aimed especially to protect the meek, weak, helpless and heavily dependent child victims who are at the mercy of those whom they look up to for protection and support. Abuse of trust and authority that one has over those whom they look up to for protection and support. Abuse of trust and authority that one has over those he exercise his control and influence is now an offence that carries heavy criminal sanction and rightly so.

Recent cases of similar nature have attracted between 3 and 5 years imprisonment. In The State v. Kiddi Sorari [2004] N2553 (29/4/04) the prisoner, a young boy aged 14 years was sentenced to five years after he pleaded guilty to rubbing his fingers around the victim’s vagina. The victim was aged 6 years old and suffered no physical injuries. The other case is The State v. Paul Nelson [2004] N2844, the prisoner aged 65 was sentenced to 3 years. In The State v. Thomas Angup [2005] N2830 where the prisoner was charged with multiple counts of sexual touching and sexual penetration, he was sentence to a maximum of five years for sexual touching.

In this case there were no permanent physical injuries suffered and I note the prisoner’s willingness to make peace with the victim and the family members he had wronged. While there are no physical injuries and scars visible today, one cannot measure the psychological damage to the victim except those expert on psychology.

The most serious aggravating factor in this case is that the prisoner is an adult and a muted person in his early forties and he must be expected to be more sensible.

But considering his good background, his plea of guilty, I sentence him to six years imprisonment. He has been in custody since 25 February 2005 which is 7 months and 2 weeks. That is deducted and leaving a balance of five years 4 months and 2 weeks. I suspend 2 years and he shall serve 3 years 4 months and 2 weeks on the condition that he enters into his own recognizance to keep peace and be of good behaviour for three years.

Lawyer for the State: Public Prosecutor
Lawyer for the Defence: Paul Paraka Lawyers