N4486

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1042 OF 2006

THE STATE

V

JOE PUTUBU

Buka: Cannings J
2006: 17, 18, 23 August

SENTENCE

CRIMINAL LAW – Criminal Code, Division IV.2A, Sexual Offences Against Children – Section 229B, sexual touching – sentence on plea of guilty – 3 years.

A mature-aged man pleaded guilty to sexually touching a 14-year-old girl, his niece, on her breasts for sexual purposes. He interrupted her sleep in the middle of the night. He caused no physical injuries. The accused’s son was sleeping in the same room, woke up, and interrupted the accused, who upon being discovered retreated to his own room. 

Held:

(1)	The starting point for sentencing for sexual touching of a child with whom there was an existing relationship of trust is six years imprisonment. 

(2)	Mitigating factors were: age of complainant; offender acted alone; no weapon or violence; no STD; isolated incident; co-operated with 

(3)	….police; no further trouble to the victim; pleaded guilty; expressed remorse; first offender; not a worst case of sexual touching. 

(4)	Aggravating factors were: large age gap between offender and victim; no consent; serious breach of trust; did not give himself up; no reconciliation; not a youthful offender.

(5)	A sentence of three years was imposed, 18 months of which was suspended on conditions. 

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA 52 of 2005, 27.04.06
The State v A Juvenile, "IO" (2005) CR 1166 of 2004
The State v Kagewa Tanang (2005) N2941
The State v Paul Nelson (2005) N2844
The State v Thomas Tukaliu (2006) N3026
The State v William Patangala (2006) N3027
Tom Longman Yaul v The State (2005) SC803

PLEA

A man pleaded guilty to sexual touching and the following reasons for sentence were given.

Counsel

R Luman, for the State
P Kaluwin, for the accused

INTRODUCTION

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to sexual touching under Sections 229B of the Criminal Code. He faced the following indictment:

Joe Putubu of Nakaro, Buin, Bougainville, stands charged that he on the 12th day of July 2005 at Nakaro … for sexual purposes touched with his hands the sexual parts of [the complainant], a child under the age of 16 years, namely her breasts.

And Joe Putubu, in committing the offence, abused a position of trust, authority and dependence.

CONVICTION

2. The offender pleaded guilty to the following facts:

3. The complainant, a 14-year-old girl, was sleeping in the accused’s house. She is the daughter of the accused’s sister; his niece. At 4.30 am, the accused woke up the complainant, sat on top of her and held on to her breasts for sexual purposes. The accused’s son was sleeping in the same room and woke up and interrupted the accused, who upon being discovered retreated to his own room.

4. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the offender.

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I apologise for what I have done. It is true that I intended to have sex with my niece when I woke her up. My son woke up and I stopped. I am very ashamed of what I have done. 

OTHER MATTERS OF FACT

7. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State’s extra resources that would have been committed to the case if a trial were necessary.

Depositions 

•	The offender made some admissions to the police early in the investigation. 

Allocutus 

•	He expressed remorse.

Matters raised by defence counsel

•	No physical harm was done to the victim. 

PERSONAL PARTICULARS

8. The offender, Joe Putubu, is aged 40 and is married with five children. He is the fifth born in a family of seven. He was educated to grade 3 and has never been formally employed. 

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Kaluwin highlighted the following mitigating factors: the offender pleaded guilty; he expressed remorse; he did not inflict any physical injury on the victim; he did not touch the victim’s genitalia. He submitted that a wholly suspended sentence would be appropriate. 

SUBMISSIONS BY THE STATE

10. Mr Luman, for the State, agreed that this was not in the ‘worst case’ category of sexual touching cases. It appears to have been an isolated incident. 

DECISION MAKING PROCESS

11. To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?

•	step 2: what is a proper starting point?

•	step 3: what sentences have been imposed in other cases? 

•	step 4: what should the head sentence be?

•	step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?

•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. The indictment was presented under Section 229B (assaults occasioning bodily harm) of the Criminal Code, which states:

(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; or
(b)	compels a child under the age of 16 years to touch, 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, 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.

13. The circumstances of aggravation prescribed by Section 229B(5) were charged in the indictment. There was an existing relationship of trust, authority and dependency, as defined by Section 6A of the Criminal Code, which states:

(1)	When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards 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 step sibling) 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.

14. The offender was the complainant’s uncle, so Section 6A(2)(c) applied. The maximum penalty is therefore 12 years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. 

STEP 2: WHAT IS A PROPER STARTING POINT?

15. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a ‘starting point’ for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. The actual sentence imposed can be above, below or the same as the starting point depending on whether the aggravating factors outweigh the mitigating factors (resulting in a sentence above the starting point); the mitigating factors outweigh the aggravating factors (resulting in a sentence below the starting point); or the mitigating and aggravating factors are balanced (resulting in the starting point being the sentence). 

16. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of six years as the starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED IN OTHER CASES?

17. Before I fix a sentence, I will consider recent sentences that have been imposed for sexual touching, as shown in the table below.

TABLE 1: RECENT SENTENCES FOR SEXUAL TOUCHING

No	Case	Details	Sentence	
1	The State v Paul Nelson (2005) N2844, Cannings J;
Kimbe	Guilty plea – offender aged 65 – victim a 12-year-old girl – touching of vagina with fingers – offender acted alone – no weapons used – no physical injury – isolated incident no existing relationship of trust – first offender. 	3 years;

non-parole period, 1 year	
2	The State v A Juvenile, "IO" (2005) CR No 1166 of 2004
Mogish J; Waigani	Trial – offender aged 15 – victim a 6 year-old girl – offender rubbed his penis against victim’s vagina – offender acted alone – no weapons used – no physical injury – isolated incident – existing relationship of trust: uncle/niece – first offender. 	4 years;

3 years, 11 months suspended 
	
3	The State v Kagewa Tanang
(2005) N2941,
Kirriwom J; 
Finschhafen	Guilty plea – offender aged 41 – victim a 10-year-old girl – touching of vagina with fingers and attempted penetration of vagina with penis and rubbing of penis on vagina – offender acted alone – no weapons used – no physical injury – isolated incident – existing relationship of trust: uncle/niece – offender, a Lutheran Church elder – first offender. 	6 years;

2 years suspended
	
4	The State v Thomas Tukaliu (2006) N3026, Lenalia J;
Kokopo	Guilty plea on two counts – offender an adult male – victim a 10-year-old girl – touching of vagina with fingers – offender acted alone – no weapons used – no physical injury – pattern of abuse – existing relationship of trust: uncle/niece – offender, a Revival Church pastor – first offender. 	5 years;

3 years suspended
	
5	The State v William Patangala (2006) N3027 Lenalia J;
Kokopo	Guilty plea – offender an adult male – victim a 14-year-old girl – fondling of breasts and sucking of nipples – offender acted alone – no weapons used – no physical injury – isolated incident – existing relationship of trust: uncle/niece – first offender. 	5 years;

3 years suspended

STEP 4: WHAT IS THE HEAD SENTENCE?

18. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be at or near the starting point.

19. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1	Is there only a small age difference between the offender and the complainant? No – the offender was aged 40 and the complainant 14; an age gap of 26 years.

2	Is the complainant not far under the age of 16 years? Yes – only two years.

3	Was there consent? No.

4	Was there only one offender? Yes. 

5	Did the offender not use a threatening weapon and not use aggravated physical violence? Yes.

6	Did the offender not cause physical injury and not pass on a sexually transmitted disease to the complainant? Yes. 

7	Was there no relationship of trust, dependency or authority between the offender and the complainant or, if there was such relationship, was it a distant one? No – the offender was her uncle.

8	Was it an isolated incident? Yes. 

9	Did the offender give himself up after the incident? No.

10	Did the offender cooperate with the police in their investigations? Yes. 

11	Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did? No. 

12	Has the offender not caused further trouble to the complainant or the complainant’s family since the incident? Yes. 

13	Has the offender pleaded guilty? Yes. 

14	Has the offender genuinely expressed remorse? Yes. 

15	Is this his first offence? Yes. 

16	Can the offender be regarded as a youthful offender? No. 

17	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes – the sexual touching was not done by use of the offender’s genitalia against the complainant’s genitalia. 

20. To recap, mitigating factors are: 

•	No 2 – age of complainant;
•	No 4 – offender acted alone;
•	No 5 – no weapon or violence;
•	No 6 – no STD;
•	No 8 – isolated incident;
•	No 10 – co-operated with police;
•	No 12 – no further trouble;
•	No 13 – pleaded guilty; 
•	No 14 – expressed remorse;
•	No 15 – first offender;
•	No 17 – not a worst case of sexual touching.

21. Aggravating factors are:

•	No 1 – large age gap;
•	No 3 – no consent;
•	No 7 – serious breach of trust;
•	No 9 – did not give himself up;
•	No 11 – no reconciliation;
•	No 16 – not a youthful offender.

22. After weighing all these factors and bearing in mind that there are 11 mitigating factors compared to six aggravating factors, the head sentence should be well below the starting point of six years. Comparing this case with the cases summarised earlier, this case is not as serious. I impose a head sentence of three years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

23. The offender has spent three months and five days in custody in connexion with this offence and it is proper that that period be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, as shown in the table below:

TABLE 2: CALCULATION OF FINAL SENTENCE

Length of sentence imposed	3 years	
Pre-sentence period to be deducted	3 months, 1 week	
Resultant length of sentence to be served	2 years, 8 months, 3 weeks	

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

24. This is an appropriate case in which to consider suspending part of the sentence in view of the mitigating factors identified. However, the case is too serious to warrant immediately suspending all the sentence. The offender must serve the first 18 months of the sentence in custody, ie a further 14 months and three weeks from today.

25. The rest of the sentence will be suspended on the following conditions:

1	must within three months after release from custody pay K300.00 cash compensation to the victim;

2	must reside at Lakaru village and nowhere else except with the written approval of the National Court;

3	must not leave Bougainville without the written approval of the National Court;

4	must perform at least six hours unpaid community work each week at Tulipoilu Catholic Church under the supervision of the Parish Priest;

5	must attend Tulipoilu Catholic Church every Sunday for service and worship and assist the church in its community activities under the supervision of the Parish Priest;

6	must report to Buin Police Station every government payweek Friday between 9.00 am and 3.00 pm and sign the register;

7	must not consume alcohol or drugs;

8	must keep the peace and be of good behaviour;

9	must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of imposition of sentence;

10	the person responsible for filing the probation report will be the Buin Police Station Commander;

11	if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence. 

26. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the ARB senior welfare officer, any of who may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803, Supreme Court, Salika J, Mogish J, Cannings J.)

SENTENCE

27. Joe Putubu, having been convicted of the crime of sexual touching, is sentenced as follows:

Length of sentence imposed	3 years	
Pre-sentence period to be deducted	3 months, 1 week	
Resultant length of sentence to be served	2 years, 8 months, 3 weeks	
Amount of sentence suspended	18 months, subject to conditions prescribed herein	
Time to be served in custody	1 year, 2 months, 3 weeks from today	

Sentenced accordingly.

_________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused