N3724

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 847 0F 2009

THE STATE

V

HILARY LARIS

Buka: Cannings J
2009: 13, 14, 18 August

SENTENCE

CRIMINAL LAW – sentence – sexual assault – Criminal Code, Section 349 – guilty plea – male offender sexually assaulted female victim – no circumstances of aggravation – sentence of 3 years imprisonment.

A mature aged man pleaded guilty to sexual assault constituted by compelling a 20-year-old woman to touch his penis with her hand, after she had approached him for assistance in his office.

Held:

(1) The maximum penalty is five years imprisonment.

(2) A sentence of three years was imposed and two years of it was suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Ima Esiko (2009) N3607
The State v Mark Samuel Haupas (2007) N3186

SENTENCE

This is a judgment on sentence for sexual assault.

Counsel

F Popeu, for the State
E Latu, for the offender

18 August, 2009 

1. CANNINGS J: This is the sentence for a 62-year-old Malasang man, Hilary Laris, who has pleaded guilty to one count of sexual assault. The offence was committed in his office on the morning of 1 August 2007. The offender is the Member for the Tsitalato Constituency in the Bougainville Legislature, the House of Representatives. The day before the offence was committed the victim, a 20-year-old woman from Lonohan, came into Buka town and picked up an application form for jobs at the Bougainville Administration office. She approached the offender, asking him to write a reference to support her application. He told her to come back the next day and he would assist her then.

2. She did as she was told and came back at 8.30 am the next day, 1 August 2007. She entered the office. He closed the door. He told her to sit with him so that he could assist her fill out the application form. She did as she was told. Then he touched her on her back. She stood up and indicated that she wanted to go out, but he stood up too. He pulled down the zipper on his trousers and pulled out his penis. He then took the complainant’s hand and placed it on his penis. By doing that without her consent he committed the crime of sexual assault under Section 349(1)(b) of the Criminal Code, which states:

A person who, without a person's consent … compels another person 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 of sexual assault.

Penalty: Subject to Subsection (4) [circumstances of aggravation] imprisonment for a term not exceeding five years.

ANTECEDENTS

3. The offender has one prior conviction for the same offence. He was convicted after a trial of the sexual assault of a young woman who had come to his office for help with filling in a bank form. He touched her breasts without her consent. He was sentenced to five years imprisonment, fully suspended on conditions including payment of K1,000.00 compensation to the victim. This offence was committed on 25 April 2007, just a few months before the offence in the present case. He was convicted and sentenced in May 2008.

ALLOCUTUS

4. The offender was given the opportunity to address the court. He said:

I am 62 years old and I have diabetes which affects my health and does not relate well with my poor hygienic conditions. My wife had a very serious operation four months ago in Port Moresby and right now she is disabled. She can no longer pick up firewood, carry water or do any heavy duty work which a normal villager would do. She, I think has had a relapse this morning. She has had a very chronic operation in Port Moresby which means that there is no one to look after the children. I have nine children, one of whom has Down ’s syndrome and a heart problem and any time he can pass away. My children need my support, some are doing tertiary education and some are at primary school. The normal village system in Papua New Guinea can no longer look after our families. Therefore I have full responsibility of looking after my very sick wife and my sick child.

The so-called victim has approached me and apologised because I did not give her the amount she expected. She told her husband and she told me that she only took the matter to the police as she did not get the money she expected from me. It is our normal custom in Buka and on Bougainville that if you stay with a woman you have to give her the amount of money which is reasonable. That explains why, when I gave her K20.00 [at the time of the incident] she went and told her husband. It was only because of the money issue that she went and told her husband, and then the matter was taken to the Police.

I have made something like four or five reconciliations. They themselves want to reconcile with me, including the so-called victim. Mine is a Catholic family as is theirs. When the Holy Cross was on its entourage in Bougainville we all reconciled. I truly believe that when we reconciled with each other there was a divine intervention of forgiveness. Their family comes freely to me and I go freely to them knowing that we have reconciled according to our custom. I have given their family K800.00. Apart from that their family comes to my office and seek help if their children are sick or they are running out of food. I help them because after the reconciliation we have become a normal family.

As the Bible says, when Peter asked the Lord ‘how many times can I forgive?’ the Lord answered ‘seventy times seven’. I am more than sure that by applying that principle I have reconciled with the family.

I reiterate that I would probably get very sick if I were in a confined area. My wife definitely needs my help. Just this morning she was very ill.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard I accept that his wife is in poor health and that he himself is diabetic and might be susceptible to illness if he were detained in custody (especially if he were detained for an extended period at Buka Police Lock-Up where the conditions for detainees are unhygienic). I also accept that he has to some extent reconciled with the victim.

PRE-SENTENCE REPORT

6. Hilary Laris is 62 years old. He resides at Malasang with his wife of 33 years. They have a happy and stable marriage and have nine children, the oldest of whom is in her late-20s. He was educated at the University of Papua New Guinea. He is currently doing a Bachelor of Education program at the University centre in Bougainville. He was employed for seven years by the Arawa Town Authority until the Bougainville Crisis intervened. He was unemployed until his election to the House of Representatives in 2005. He is an active member of the Catholic Church. He has reconciled with the victim’s parents and given them K800.00 but it appears that the victim only received K150.00 out of that payment. The extent of reconciliation claimed by the offender in his allocutus is not verified by the pre-sentence report.

7. The report concludes that he is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Latu submitted that the court should disregard the previous conviction for sexual assault as the offence for which he is now being sentenced was not committed after his conviction for the earlier offence. As he has pleaded guilty this time a sentence of only one or two years should be imposed.

SUBMISSIONS BY THE STATE

9. Mr Popeu acknowledged the guilty plea but stressed that this was a prevalent offence in Bougainville and a deterrent penalty is required. A sentence of two and a half years is required, he submitted.

DECISION MAKING PROCESS

10. 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 for equivalent offences?

- step 4: what is the head sentence?

- step 5: should the pre-sentence period in custody be deducted?

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

STEP 1: WHAT IS THE MAXIMUM PENALTY?

11. The maximum penalty is five years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. I have been unable to locate a suitable precedent, so I will use the mid-point of two and a half years as the starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

13. I have imposed a sentence of three years in two cases decided in West New Britain in recent years: The State v Mark Samuel Haupas (2007) N3186 and The State v Ima Esiko (2009) N3607.

STEP 4: WHAT IS THE HEAD SENTENCE?

14. The head sentence will reflect the following mitigating and aggravating factors.

15. Mitigating factors:

- no weapon or aggravated violence used against the victim;

- no physical injury to the victim;

- compensation has been paid and there has been limited reconciliation between the offender and the victim;

- the offender has caused no further trouble;

- he pleaded guilty.

16. Aggravating factors are:

- large age gap (40 years) between the offender and the victim;

- he abused a position of trust by inviting the victim into his office under the pretext of helping her with a job application;

- he is a member of the Bougainville Legislature, a Bougainvillean leader, with a duty to be a person of high integrity and to lead by example – a duty which he breached in a most outrageous way;

- he is not a first-time offender – I reject Mr Latu’s submission that the earlier sentence for a similar offence should be disregarded.

17. The previous conviction is a weighty consideration, which pushes the sentence above the starting point. 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?

18. The Court has not been informed of any pre-sentence period in custody so there is nothing to deduct.

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

19. The pre-sentence report is generally favourable and warrants a partial suspension. However, there are three reasons I do not think a wholly suspended sentence is appropriate. First, this is the offender’s second conviction for the same offence in a short space of time. Secondly, I am not satisfied that there has been as nearly as much reconciliation with the victim as claimed by the offender. Thirdly, I am informed that the offender has remained a member of the House of Representatives despite his previous conviction. This would seem to be contrary to Section 56(7)(c) of the Bougainville Constitution. I will, however, because of the generally favourable pre-sentence report suspend two years of the sentence on the following conditions.

(a) must within two months after release from custody participate in a reconciliation ceremony involving payment of at least K500.00 cash compensation to the victim, supervised by the local Chiefs and witnessed by the Senior Probation Officer for Bougainville;

(b) must reside at Malasang or some other place nominated by the National Court and nowhere else except with the written approval of the National Court;

(c) must not leave Bougainville without the written approval of the National Court;

(d) must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(e) must attend the Catholic Church every week for service and worship and assist the church in its community activities;

(f) must report to the senior Probation Officer at Buka every three months;

(g) must not consume alcohol or drugs;

(h) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim’s family;

(i) must have a satisfactory probation report submitted to the National Court Registry at Buka every three months after the date of sentence;

(j) must attend the National Court as and when required to monitor compliance with the conditions of the suspended sentence;

(k) 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.

SENTENCE

20. Hilary Laris, having been convicted of one count of sexual assault contrary to Section 349(1)(b) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	3 years	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served	3 years	
Amount of sentence suspended	2 years, subject to conditions	
Time to be served in custody	1 year	
Place of custody	Buka Police Lock-Up, from where he must be transferred within 30 days after the date of sentence to Kerevat Correctional Institution	

Sentenced accordingly.

__________________________

Public Prosecutor: Lawyer for the State
Latu Lawyers: Lawyers for the offender