N3308

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 84 of 2008

THE STATE

-V-

WASA DAVID WARIFA

Tabubil: 	Kandakasi, J.
2008: 4 and 11 March

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Particular offence – Sexual touching -Using penis to rub against victim’s vagina – Victim experiencing pain and minor bruising – Age disparity - Victim 6 years old while offender 24 years - Breach of trust - Sentence of 7 years less time spent in pre-trial and pre-sentence custody imposed – Sections 19 and 229B(1)(a) and (4) Criminal Code 

Cases cited:
The State v. Brady Meki CR 1478 of 2006 (unreported an unnumbered judgment delivered on 17/11/06).
The State v Kiddi Sorari (29/04/04) N2553.
The State v. Willaim Patangala (22/02/06) N3027. 
 The State v. Kagewa Tanang (13/10/05) N2941.
The State v. Moki Lepi (No.3) (25/11/04) N2734.
The State v. Joseph Minjihau (24/05/02) N2243.
The State v. Paul Nelson (25/05/05) N2844.
Acting Public Prosecutor v. Don Hale (27/08/98) SC564.
The State v. Irox Winston, (13/03/03) N2347.
Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730.

Counsel:
J. Kesan, for the State. 
P. Kapi, for the Prisoner.

11 March, 2007

1.	KANDAKASI J: You pleaded guilty to a charge of sexual touching contrary to s. 229B (1) (a) and (4) of the Criminal Code. After having administered your allocutus and receiving both yours and that of the State’s submissions, I reserved a decision on your sentence. This is now the decision of the Court.

Relevant Facts

2.	The relevant facts are these. For about a year you have been living at Bultem, here in Tabubil with a couple their daughter then aged 6 years. On an unknown date in October 2007, you were in the kitchen area of the house, when the parents of the daughter were not around. You called the little girl to come over to where you were and she did. You then asked her to remove her skirt and lie down on the ground, which she did. Thereafter, you put your penis on top of her vagina in what appears to be an attempt at sexually penetrating the victim. Unfortunately for you, perhaps due to the age of the victim, you did not actually sexually penetrate the victim but did manage to ejaculate, spilling your sperm outside the victim’s vagina. The victim did feel pain during the course of your rubbing your penis on her vagina and tried to avoid you without much luck. At some stage, she suffered minor bruises and bled from her vagina.

3.	The victim did not inform her parents or any other person because you told her not to. On 18 October 2007, you were caught attempting to sexually attack the victim. Following that, the parents questioned the victim and she told them of what you did to her earlier. Thereupon, the parents reported the matter to police and you were eventually arrested and charged. In your record of interview, you admitted to committing the offence and claim that the parents said the victim was your wife so you did what you did.

Address on Sentence and Submissions

4.	When given the opportunity by the Court for you to address the Court regarding your penalty, you said sorry for committing the offence. You also said sorry to the victim and her parents for the offence you committed against them. You said you could not have committed the offence if the parents did not say the victim was your wife. You then asked the Court to be merciful and be lenient with you. 

5.	Your lawyer added that, you are about 24 years. You are single man, having three brothers and one sister. You have no formal education and employment. Following the commission of the offence, you have been in custody since 24 September 2007. 

6.	In his submissions, your lawyer urged the Court to take into account your guilty plea, your cooperation with the police and all other authorities in terms of pleading guilty from the time of your arrest up to committal and now before this court. Your lawyer also urged the Court to take into account the fact that, you are a first time offender and as such, you have no prior conviction. Furthermore, your lawyer urged the Court to note that, you did not commit the offence with the use of force or threat of force, although he did acknowledge that you committed the offence in breach of a trust reposed in you as an older person and someone living with the victim and her parents at the relevant time. 

7.	Your lawyer also drew the Court’s attention to my decisions in the case of The State v. Brady Meki, The State v Kiddi Sorari and my brother Lenalia J’s decision in The State v. Willaim Patangala. Having regard to the kind of sentences imposed in those cases, your lawyer argued for a sentence between 3 and 4 years as being appropriate.

8.	On the other hand, the State highlighted the aggravating features of your case in terms of you breaching the trust placed in you by the victim and her parents, you being an older and more mature person than the victim, the pain and minor injuries the victim suffered and the fact that, the offence you committed is a prevalent offence. He agreed with the reference to the cases your lawyer referred to as the relevant cases on point for the Court’s guidance and argued for a sentence between 5 and 6 years.

Consideration of the Submissions and the Law

9.	In the Brady Meki case, I had regard to some earlier decisions of the National Court, which included my own decisions in The State v. Moki Lepi (No.3) and The State v. Joseph Minjihau, and noted that Parliament changed the law. That change in the law was particularly in relation to the sentences from as low as 5 to 12 years for sexual touching. That change came about because of a failure by the passed sentences to deter other offenders from committing the offence. That change also came about because of a global drive toward better protection of children, young girls and women, who are vulnerable to sexual attacks by young boys and men. 

10.	The new law per s. 229B for sexual touching now reads as follows:

"(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."

11.	Since the change in the law, the National Court started to increase sentences in sexual touching cases. In The State v. Kiddi Sorari, I imposed a sentence of 5 years. There, the prisoner, a young boy aged 14 years pleaded guilty to rubbing his fingers around the victim’s vagina. The victim was aged 6 years old and suffered no physical injuries. In The State v Paul Nelson, Cannings; J sentenced a 65 year old man to 3 years imprisonment in hard labour. Two years of that sentence were suspended with various conditions. He only served 1 year. The victim in that case was aged 12 years. The prisoner in that case engaged in one act of sexual touching. There was no existing relationship of trust and it was an isolated incident.

12.	Other cases of sexual touching since the change of the law include The State v Willaim Patangala. There, Lenalia J., sentenced a married man with children to 4 years on his guilty plea. A trust relationship as uncle and niece though not exactly close existed. His Honour then decided to suspend 3 years from the head sentence of 4 years on conditions. The prisoner had paid customary compensation and took other steps to appease his wrong doing. 

13.	Another case is the decision of Kirriwom J in The State v. Kagewa Tanang. There, His Honour imposed a head sentence of 6 years. That was again on a guilty plea by a mature man aged 41 married with 5 children. He committed the offence against his own niece. Prior to committing the offence, the prisoner had an unblemished record as a hard working community and church leader. The Court accepted his expression of remorse as genuine and the offence he committed was out of character. In the circumstances, the Court suspended part of the sentence after allowing for pre-trial custody.

14.	In the Brady Meki case, I imposed a sentence of 3 years against a first time young offender on his guilty plea to touching the victim’s vagina with his index finger. There were no aggravating factors such as breach of any existing trust relationship or injuries occasioned to the victim. The victim was 6 years old at the time of the offence, while the prisoner was 19 years old. Although he said sorry for what he did, there was no evidence of customary or any other form of compensation paid to the victim. 

Your Sentence

15.	For the purposes of determining an appropriate sentence for you, I note and take into account both your personal and family backgrounds as put to me by your lawyer and as I noted above. Then in your mitigation, I note that, you are a young first time offender and that you have pleaded guilty to the charge against you. Further, you said sorry for what you have done but that is not supported by any evidence of any form of compensation being paid. As I have noted in a number of cases already, a mere expression of remorse is not good enough unless it is accompanied by something tangible such as compensation. Accordingly, I am of the view that your expression of remorse should not unduly reduce the kind of sentence you should receive for the offence you committed. 

16.	In addition to the above, I note that, the victim sustained only minor injuries consisting mainly of minor bruises from which she felt pain and bled. Nevertheless, I note that, this does not mean that the victim suffered no harm. Rather, she has suffered some psychological injury as a result of your sexual attack on her. She will live with the effects of what you have done against her as opposed to you receiving a short term of years for your sentence for committing the offence and in no time overcome that.

17.	Against the above mitigating factors, I note firstly that, you were much older than the victim. Of the two of you, you were in a better position to appreciate that, what you set out to do was wrong. Yet you proceeded with your desire to satisfy your sexual desires through the use of your penis against the victim’s vagina. You tried to sexually penetrate the victim’s vagina but did not succeed given her tender age and you ejaculated outside her vagina. 

18.	Secondly, I note that, you committed an offence that is prevalent, as highlighted by the cases I have mentioned and considered above. The community has through the change in the law, said that sentences for this offence have to be beyond the kind of sentences that have been imposed in the past because those sentences have failed to serve the desired end of deterring and or preventing people like you from committing this kind of offence. 

19.	Thirdly, you caused some minor injuries and bleeding to the victim. That does not however mean that the victim is free of any serious injury. Instead, as mentioned earlier, the victim will be left with the negative impacts of your sexual assault of her. This may remain with her for the rest of her life, given that there are no facilities in the country to help the victim to overcome her psychological injuries.

20.	Finally, I note that, the victim regarded you as an uncle. So she was a niece to you. Hence, you were in a position of trust, where the victim did not have any expectation that, you would do things you did against her. Also the parents did not have any expectation that you would do what you did to the victim, especially when they accommodated you and you were feeding from them. The law takes the commission of an offence in breach of such a trust relationship very serious because people must learn to trust and respect each other in such situations and do not take unfair advantage and violate each other.

22.	Weighing the factors both for and against you, I note that, those against you outweigh the factors in your favour. Then noting the reasons for the change in the law, particularly, increasing the penalty for the offence you committed from any early prescribed sentence of 5 years to now 12 years, as well as the kinds of sentence that have been thus far imposed for this kind of offence, I consider a sentence of 7 years appropriate in the particular circumstances of your case. Of that, I order a deduction of the period of 5 months, 2 weeks and 3 days you have already spent in custody awaiting your trial and sentence. That will leave you with the balance of 6 years, 6 months, 1 week and 4 days yet to serve.

23.	I have given consideration to the possibility of suspension of either the whole or part of that sentence and have decided against it for two main reasons. First, there is no pre-sentence report supporting a suspension of either the whole or part of the sentence. It is settled law now that there can be no suspension of sentence unless there is a pre-sentence report supporting it. Secondly, I do not consider that, in the light of the reasons for the changes to the law and in particular, the increase in the prescribed penalty, a non custodial sentence is inappropriate. You will therefore serve the balance of your sentence of 6 years, 6 months, 1 week and 4 days in hard labour at the Ningerum Correction Services. A warrant of commitment in those terms shall issue forthwith.

Public Prosecutor:	Lawyers for the State 
Public Solicitor:	Lawyer for the Prisoner