N3027

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.800 OF 2004

THE STATE

-V-

WILLAIM PATANGALA

KOKOPO: LENALIA, J.
2006: 10th & 15th & 22nd Feb.

Counsel:
L. Rangan, for the State
P. Kaluwin, for the Accused

22nd February, 2006

LENALIA, J: The prisoner pleaded guilty to one count of sexual touching aggravated by an existing relationship of trust, authority and dependency contrary to s.229B (1) (a) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

On the night of the 16th of July in 2003, on the invitation of Miriam Patangala, who is the step daughter of the prisoner, the victim and her three little sisters were invited to spend the night at the prisoner’s house. The reason for such invitation was because; Miriam’s mother and Bill Dorcas’ (victim) mother were out that night for a fellowship meeting. In fact Miriam wanted someone to keep her company that evening in absence of her mother.

As early as 8pm, the prisoner asked his step daughter to boil him hot water for tea. After, Miriam had prepared a cup of hot tea, she gave it to the prisoner. He further asked Miriam to fetch and mix a bucket of lukewarm water for him to bath. The bucket was put under a mango tree and the victim said, the prisoner stood under that tree and had his bath completely naked in the full view of his step daughter.

After having his bath, the prisoner then asked the girls to go to sleep. That was despite the girls not wanting to sleep as yet as it may have been about 8.30pm only. They proceeded to a common platform in the house which was commonly used by the prisoner and his family to sleep. That was where they slept when the offence was committed. 

Dorcas observed that the order in which they laid down to sleep was in the following. The prisoner laid down near the wall on one end of that platform. Then next to him was Miriam, then followed by Miriam’s two small brothers; following them were Dorcas three small sisters. Dorcas was the last person on the wall. 

Dorcas recalls that, when they laid down to sleep, she did not go sleep quickly. The lantern was turned down almost to the stage where it was fully dark. Then a little latter, the prisoner crawled from where he was sleeping to where the victim was and he started to fondle the victim’s breasts. 

Following that, he slipped his hand into the victim’s blouse then onto her breast nipple and started to stimulate her. The victim being aware of what the accused was doing, she sat up and scolded the prisoner. 

She asked him in "kuanua" language as to what he was doing, and the prisoner said, he was testing and trying the victim’s breasts. Dorcas said she was going to tell and report the prisoner to her parents. Dorcas says, the prisoner did not take any notice. He continued to do what he was doing.

He then forcefully removed the merry blouse from the victim’s right breast and sucked if for some few moments. The he pushed his hand to the victim’s private part but he did not touch her private part since she wore a shorts. 

When the accused was doing this to the victim, the victim’s mother and the mother of Miriam came. The victim and her small bothers went away with their mother to their house located about 300 meters away from that of the prisoner and his family.

In allocutus, the accused said, he is sorry for what he did. He also said sorry to the victim and her parents. He said soon after the offence was committed, he paid compensation to the victim and her relatives. 

Councillor Dickson Tolaina was called to give evidence in support of what the prisoner said about payment of compensation. Councillor Dickson said, the Village Committees ordered the prisoner to pay K150.00 cash. The prisoner paid an extra K150.00 making a total of K300.00 cash. A part from that, he was also ordered to pay 40 fathom of tabu. The paid an extra 20 fathoms making a total of 60 fathoms of tabu being paid to the relatives of the victim.

Mr. Kaluwin of counsel for the prisoner submitted that, his client’s plea be accepted as genuine. Not only that he pleaded guilty when he was called to plea after arraignment but when the record of interview was conducted, the prisoner readily admitted his guilt to the interviewing team. The case of The State v John Elipa Kalabus [1977] PNGLR 87 was cited for such proposition.

The accused is charged with a charge of sexual touching. The facts show that, not only did the prisoner touch the victim’s breasts, but he also sucked her nipple breasts. A number of aggravating circumstances are involved in the instant case. First there was an existing relationship of trust, authority and dependency between the victim and the prisoner. According to the facts, Miriam and Dorcas are cousin sisters meaning, their mothers are sisters by blood. 

The offence of sexual touching is punishable by the prescribed penalty of seven (7) years. However if it is aggravated by an existing relationship of trust, authority or dependency, the penalty prescribed by Subsection (5) of the section charged is an imprisonment term of not exceeding twelve (12) years. 

I agree with Mr. Rangan that, the offence of sexual touching does not differentiate between touching genital area and the groins, buttocks, or breasts and there is not different penalty for a person touching any of those four "sexual parts" defined in Subsection (2) of Section 229B (1) (a) of the Act.

On the request of Mr. Kaluwin, the matter was adjourned for a Pre-Sentence Report and the court directed that such report be filed by 15th of this month. I am thankful to the Probation Officer for the report which has assisted the court by giving an insight of the prisoner’s total background information on his family and that of the victim’s parents. 

According to the Pre-Sentence Report (P.S.R) the prisoner is a married man with 4 children of his marriage but he and his wife Delilah Belin have also adopted 3 other children making a total of 7 children in his family. The prisoner hails from Tinganalom village. He is not very active in church activities. The highest education he reached was when he enrolled at the Vunamami Farmers Training Centre from 1981 to 1983 during which he completed a three years basic training skills in Carpentry. He is also well-known for the practice of black magic and witch-craft. 

At page 5 of the P.S.R. the parents of the victim told the author of this report that, they were very angry and upset initially when they discovered what the offender did to their daughter. They also expressed their gratitude to the victim, although very young, she was brave enough to speak out against the accused for what he did to her. The parents are satisfied with the compensation paid by the prisoner to the relatives of the victim.

However, Nerrie and Bill (victim’s parents) are concern that, the accused might repeat what he did to the victim since, the victim is now doing Grade 8 at Kabagap Primary School. The writer of the report concludes that though the parties have been reconciled by payment of compensation, sexual assault against children is becoming too prevalent and therefore, the offender should be punished appropriately by the court.

LAW.

The prisoner is charged with one count of sexual touching. As alluded to in my introduction of this discussion, sexual touching per se carries a lesser penalty than a case where aggravation is involved. The abuse of trust, dependency and authority is now an offence pursuant to s.229E of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. In order for an accused to be charged for the offence, the victim at the time of the offence must be between the ages of 16 and 18 years. The victim in the instant case was 14 years at the time the offence was committed upon her. The offence itself carries the maximum penalty of 15 years imprisonment. 

The prisoner in the current case is not charged under s.229E of the Act. In fact under s.229B (1) (a) under which the prisoner is charged, Subsection (5) of that section sets out the aggravation in the following terms:

"(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."

As Mr. Rangan submitted, educating the people about the new law since it came into operation in April of 2003 is very important. The Criminal Code (Sexual Offences and Crimes Against Children) Act No. 27 of 2002 was enacted due to the whole range of sexual abuse of our children both very young girls and boys. So the Parliament in its own wisdom has decided to amend the former sections dealing with sexual offences in order to suit our present purposes. It is for such reasons that, it is part of the reform to the existing laws dealing with sexual crimes against children must reflect more appropriately the reality of the present circumstances. This is what Dame Carol Kidu said when she presented the Bill to the Parliament on 11th of October, 2001:

"Papua New Guinea’s Criminal Code, like most Commonwealth countries, is based to a large extend on the British Common Law. Many of the key principles contained in modern procedures on rape and sexual violence were dev eloped in England in the 1600s. Accordingly, changes have been made to the Legal Codes of many Commonwealth countries to bring a basic human rights approach to dealing with sexual violence in society. In 1995, Papua New Guinea ratified the United Nations Convention of All Forms of Discrimination and Violence Against Women. As a nation we have both a regional and international commitment to address this important issue. At both the regional and international level, the general consensus is that women and girls are the major victims of sexual violence. But it is recognized that males can also be victims and therefore the legislation should not be gender specific. The amendment before Parliament applies to both men and women and girls and boys. Mr. Speaker, we as parliamentarians must speak out loudly against all violent sexual assault because they not only can cause us physical injury; they also destroy our self-dignity and pride. Declaring act as criminal acts gives us a moral denunciation of the conduct unacceptable. This can have a very significant impact on shaping the 'changing values of our young nation. We as parliamentarians have an extremely important role to play in this regard; passing, drafting or clarifying laws that criminalize violence particularly against women and children but also to all violence is an important step in re-defining the limits of acceptable behaviour."

(See Hansard, National Parliament, Thursday 11 October 2001, 30-2) (I quoted the above passage in the case of The State v Adrian Amos CR. No 701 of 2005 in Buka on 13th of September 2005).

Breach of trust, authority or dependency as the case may be is an aggravation of the most severe kind according to the case of The State v Mitige Neheya [1988-89] PNGLR 174. The Act defines the relationship of trust, authority or dependency in s.6A in the following words:

""6A (1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regarding that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where-

(a)	the accused is a parent, step parent, adoptive parent or guardian of the complainant; or
(b)	the accused has care or custody of the complainant, or
(c)	the accused is the complainant’s grandparent, aunt, uncle, sibling (including stepsibling) or first cousin; or
(d)	the accused is a school teacher and the complainant is his pupil; or
(e)	the accused is a religious instructor to the complainant; or
(f)	the accused is a counsellor or youth worker acting in his professional capacity; or
(g)	the accused is a health care professional and the complainant is his patient; or
(h)	the accused is a police or prison officer and the complainant is in his care and control".

In The State v Sottie Apusa [1988-89] PNGLR 170 Brunton, AJ. expressed the same concern as His Honour did in Mitige Neheya’s case (supra). The following is what the court there said at 172:

""There are other relationships of trust which in my view constitute circumstances of aggravation in these cases. For example, within the medical profession, the relationship between doctor, paramedic, nurse and patient. It is within this broad category of trust and dependency that offences committed by "step-fathers" or "uncles" should fall, for a relationship between a step-father or "uncle" and a young girl may be one of complete confidence and love – and to break that bond sexually may not only subject the victim to psychological damage, but is a betrayal, a form of personal treation [sic]."

In the circumstances of the instant case, the case of the accused should fall on the low range of sentencing. I have taken into account the accused guilty plea to this serious charge. I had the benefit of hearing Councillor Dickson Tolaina on evidence of the amount of compensation paid by the accused to the victim and her relatives. Such compensation was fully accepted by the victim, her parents and their relatives. 

At least the requirement under the Criminal Law (Compensation) Act has been complied with and therefore it saves my time as I do not want to bother myself with making any orders for compensation. I am satisfied that the amount of K300.00 cash and 60 fathoms of tabu was and is adequate compensation. 

I have also taken into account submissions by Mr. Kaluwin of counsel for the prisoner and that by Mr. Rangan the prosecuting counsel in this case. I consider that I must not disturb the peace that had been adopted since payment of compensation until now and thus, I ought not to impose a custodial penalty. 

To the prisoner, the court must warn you that you could be sentenced to twelve (12) years imprisonment for the offence you committed upon the victim. The victim from the maternal point of view was and she would call you "uncle". The court must sentence you to a term of 4 years imprisonment. The court will suspend 3 years from that sentence on conditions that after you have serve one (1) year you shall keep the peace and be of good behaviour for a period of 2 years, in default of which the sentence shall be fully reactivated. Your bail money shall be refunded to you.
______________________________________________________________________
Lawyer for the State:	The Public Prosecutor
Lawyer for Accused:	The Public Solicitor