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State v Kuila (No 2) [2009] PGNC 110; N3736 (5 May 2009)

N3736

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1504 OF 2006

THE STATE

V

ISAAC KUILA (NO.2)

Kokopo: Lenalia, J.
2009: 22nd April & 5th May.

CRIMINAL LAW – Sexual Touching – Sentence after finding of guilty – Criminal Code Sexual Offences and Crimes Against Children Act 2002 s.229B (1) (4).

CRIMINAL LAW – Sexual touching – Sentence – Matters for consideration – Substantial age difference – Offences took place over period of time – Accused 67 years victim age 9.

Cases cited.

The State v Mitige Neheya [1988-89] PNGLR 174
Public Prosecutor v Terrence Kaveku [1977] PNGLR 110
Mase v The State [1991] PNGLR 8
Belawa v The State [1988-89] PNGLR 498
The State v Penias Mokei (2002) N2635)
The State v Kagewa Tanang (2003) N2941
The State v Thomas Angup (21.4.05) N2830
The State v Thomas Tukaliu (Unreported judgment dated 22.2.06) CR.910 of 2005
The State v William Patangala (Unreported judgment dated 22.2.06) CR.800 of 2004

Counsel:

Luben, for the State
J. Ainui, for the Accused

5 May, 2009

1. LENALIA, J: On 16th of last month the prisoner was found guilty on three charges of sexual touching of the victim who was aged 9 at the time of the offences. These offences were aggravated by the fact that at the time of the offence the victim was under the age of 12 years. This is an offence contrary to s.229B (1) (a) and (4) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

2. For purposes of sentence, I just wish to recapitulate on what transpired from the evidence on which the prisoner was found guilty. The evidence by the prosecution came from three witnesses including the victim. As well a number of statements were tendered. The State’s evidence is that, on an unknown date and month in 2005, the prisoner compelled the victim to touch his penis in his kitchen at Vunaulul, Nangananga village.

3. On the second occasion, again on an unknown date and month in 2006, the accused compelled the victim Susie Julai to sexually hold on to his penis. The offence was also committed in the prisoner’s kitchen. This offence is the subject of the second charge on the indictment. The third charge relates to an incident on 29th August 2006 where the prisoner allured the victim to his kitchen and once more compelled her to sexually touch his penis.

4. However on that occasion, the victim’s auntie’s granny, Esther Bernard saw the victim going into the prisoner’s kitchen and gave a warning to her granny Angela Kekep saying that, she saw the victim go into the prisoner’s kitchen.

5. Angela and Esther made persistent calls to the victim. When the victim and the prisoner heard the calls, the prisoner asked the victim to go down with him to the gully behind the prisoner’s house where he collected dried banana leaves and placed them on the ground. He laid down and made the victim sit on his penis may be in the hope to penetrate her. Unfortunately for the prisoner, he did not master an erection sufficient to achieve his intended purpose.

Addresses

6. After he was found guilty, the court administered allocutus to the prisoner. He said sorry to the victim and her relatives. He said sorry to his wife and to his community.

7. The defence counsel, Ms. Ainui submitted on personal particulars of the prisoner. He is a retired mechanical engineer and used to be employed by the Department Works and Supply with the Marine Division. He is an elder of Nangananga village. He has 8 grown up children. Three of them are now deceased. The remaining five have their own families. Counsel submitted that, the age of the prisoner is a special mitigation.

8. Ms. Luben of counsel for the State submitted that this court should consider the serious aggravation under s.229B (1) (4) of the Act. She asked the court to consider the fact that the case went by trial and the prevalence of this offence in this Province. Counsel submitted further that, though there were no physical injuries, the victim and relative suffered psychological trauma. She also asked the court to consider the views by the victim in the pre-sentence report.

Law

9. The punishment for the offence of sexual touching is provided for under s.229B (1) (4). I quote the whole Section. It states:

"229B. Sexual touching.

(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, 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 Subsection (4) and (5), imprisonment for a term not exceeding seven years.

(2) For the purposes of this section, "sexual parts" includes the genital area, groin, buttocks or breasts of a person.

(3) For the purposes of this section, a person who 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 offence under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years. (Emphasis added).

(5) If, at the time of the offence, there was an existing relationship 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".

10. The prisoner is an educated and elderly person in your village. Young people would expect that older folks would live by example. But in your case it was the opposite. Sexual offences are on the rise as we see from the criminal list in our Province. You being an elderly person, it could be argued that, you breached the trust reposed on you by the victim. There are a number of serious aggravations in this case.

11. If your age was the same as the victim, the maximum penalty you could expect to receive prescribed by s.229B (1) (b) is 7 years imprisonment. However in your case, the offence was aggravated by the fact that the victim was under the age of 12 years. The evidence of the victim and her auntie show that at the time you committed these offences, the victim was only 9 years. When the victim came to give her evidence in court, the court observed that she had grown a little bigger. You committed these offences on her in 2005 and 2006.

12. The court can well imagine and infer that, by those years, she must have been pretty small. That is why Subsection (4) of s.229B states that it is an aggravation to sexually deal with under-aged girls. Due to the under age factor the maximum penalty provided by subsection (4) of the Act is twelve (12) years imprisonment.

13. Secondly, there was a very big difference in age gap between the victim and the prisoner. According to the case of The State v Mitige Neheya [1988-89] PNGLR.174 where there is a substantial age difference, it is an aggravation. I adopt the principles stated in that case and also say that, you sexually abused the victim. In fact on the third occasion you asked her to have sexual intercourse with you.

14. You took the first step by sending her down to the valley behind your house and then when you reached the valley, you took dried banana leaves placed them on the ground and laid down and asked the victim to sit on top your penis.

15. Having said what I have said, I should treat your case differently from sexual touching cases involving close blood relatives such as between a father and daughter or brother and sister, between grand father and grand daughter or such other relationships defined in s.6A (1) and (2) of the Act. In the case of The State v Thomas Angup (21 April 2005) N2830, the prisoner pleaded guilty to a charge of sexual toughing of his step daughter. He was convicted and sentenced to a term of 6 years. So was in the case of The State v Kagewa Tanang (2003) N2941, the victim was the daughter of the prisoner’s brother. He pleaded guilty to one count of sexual touching; he was sentenced to 6 years imprisonment.

16. In The State v Thomas Tukaliu (Unreported judgment dated 22 February 2006) CR.910 of 2005, this court sentenced the prisoner to a term of 5 years. Three years were suspended on condition to keep the peace for 2 years. In that case the prisoner pleaded guilty to two counts of sexual touching. On both occasions they were aggravated by an existing relationship of trust authority and dependency. Those offences were charged under s.229B (1) (a) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

17. In The State v William Patangala (Unreported judgment dated 22 February 2006) CR.800 of 2004, the prisoner pleaded guilty to one count of sexual touching aggravated by an existing relationship of trust, authority and dependency contrary to the above section. He was sentenced to 4 years with one year being suspended with conditions.

18. The legislators of this country have decided that high penalties should be imposed for sexual offences against under age girls. The law specifies that girls under 12, 16, and between 16 and 18 years are not mature enough to engage in sexual activities. In your case you could be sentenced to the maximum penalty of 12 years. (See sections 229A (1) (2), 229B (1) (4) and 229D (1) (6) ).

19. It is the intention of the Parliament that people who commit sexual crimes must be appropriately punished. The paramount consideration is the interests and welfare of under aged children as was the case in the current case. So that any sentence impose must reflect the serious nature of the offence committed. As well, the maximum penalty must be reserved for the worse type case.

20. The next aggravation is that, it took a period of time for you to commit these offences. The evidence shows that you committed the first offence in 2005. Following that, in 2006 you committed the remaining offences in a space of time. I adopt the approach taken by both the National and Supreme Courts that, the longer the time it takes to commit an offence, it confirms the state of mind in relation to the "mens rea" of an accused person. That is the guilty mind: The State v Penias Mokei (2002) N2635), Wellington Belawa v The State [1988-89] PNGLR 498.

21. I have considered the prisoner’s say on his allocutus. I have and considered the defence and prosecution’s submissions on sentence. I have also considered comments made by various persons interviewed in the pre-sentence report. I also consider contents of the means-assessment report. The prisoner’s wife expressed shock about what the accused did. She had to pay Tolai shell money in the value of K250.00 to the victim while the prisoner was in police custody.

22. An ex-Councilor Misiel Tolili of Nangananga also expressed concern over what the prisoner did saying although the prisoner is well known to him, he should be punished for what he did. Misiel confirmed 50 Tolai shell money was paid to the victim by the wife of the prisoner. The means assessment report suggests that the prisoner can afford to pay further compensation.

23. Part of the defence submission is that the court should consider the prisoner is well advance in his age. Although I have considered that part of their submission, such factor should also be considered against the prisoner for reasons that, he being an elderly person should be wiser than the younger generations. He however thought it fit to commit these serious charges against a 9 year old girl which to this court is nonsensical.

24. In the circumstances of this case, the prisoner should be sentenced to consecutive sentences of 2 years for each count making a total of 6 years. The three offences committed by the prisoner were committed over a period of time. I consider that the rule in practice on the totality principle stated in Public Prosecutor v Terrence Kaveku [1977] PNGLR 110 or Mase v The State [1991] PNGLR 88 do not apply here.

25. The court will suspend 3 years from the head sentence on the condition that, the prisoner shall after serving 3 years enter into a recognition to keep the peace and be of good behaviour for 2 years. I noted that no injuries were occasioned to the victim so I am of the view that a minimal amount of compensation should be paid.

26. I order the prisoner to pay compensation of K500.00 cash to the victim. His bail money can be converted toward part payment of this order. The time he spent in custody will be deducted from the sentence.

___________________________________

The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.