N3734

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.584 OF 2007

THE STATE

V

ELLY MALPA (No.2)

Kokopo: Lenalia, J.
2009: 22nd 25th & 27th May

CRIMINAL LAW – Sexual Touching – Sentence after being found guilty – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.229B (1) (4) (5).

CRIMINAL LAW – Sexual penetration – Plea of not guilty – Sentence after being found guilty – Criminal Code (Sexual Offences and Crimes Against Children) Act s.229A (1) –

CRIMINAL LAW – Sexual touching – Plea of guilty – Adjourned until trial on first and second counts are completed. 

Cases cited.

Tremellan v The Queen [1973] PNGLR 116
Public Prosecutor v Terrence Kaveku [1977] PNGLR 110
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, Mase v The State [1991] PNGLR 88 
The State v Peter Lare (2004) N2557
The State v Thomas Angup (21.4.05) N2830
The State v Paul Nelson (25.5.05) N2844
The State v Thomas Tokaliu (22.2.06) N3026
The State v Kaminiel Ocala (18.4.06) N3052
The State v Mathias Tiamani (25.5.09) Cr.No.923 of 2008

Counsel:

L. Rangan, for the State
D. Kari, for the Accused

27 May, 2009

1. LENALIA, J: The prisoner was found guilty on counts 1 and 2 on the indictment presented to this court on 18th of this month. The first count was one of sexual touching and the second one of sexual penetration. He entered a plea of guilty to the last count of sexual touching. The charge on which he pleaded guilty was adjourned until the trial of the first and second counts was completed.

2. The evidence on which the accused was found guilty is that, on 8th and 10th day of January 2007, the prisoner had been out during the night. On each of those nights, he came and knocked for someone to open for him. On each of the two nights, the victim woke up and opened the door to the prisoner. On the first occasion, after the victim went to bed, the prisoner came to her room and laid beside her and sexually touched her breast and private part. The victim protested and he went back to his room.

3. On the second night, the accused once more came very late at night and woke the victim to open for him. After she opened the door, she went back to her room and slept. The prisoner followed her into her room which had no door but a curtain was hung from the top of the door which acted as a door for the eyes only. He laid beside her and sexually penetrated her against her will. 

Addresses

4. On his allocutus, the prisoner said, he is very sorry for committing the three offences against his sister. He submitted this is his first time to appear in this court and the court should consider giving him a probation order or a good behaviour bond. He said, he is sorry for wasting the court’s time for running a trial and he should have pleaded guilty.

5. Mr. Kari of counsel for the prisoner submitted on mitigations and the personal antecedents saying the prisoner is now 25 years old and he is related to the victim as his first cousin. That is the mother of the victim and the prisoner’s mothers are biological sisters. Counsel conceded that these offences are aggravated by an existing relationship of trust, authority and dependency and are very serious. 

6. Counsel submitted that this case does not want imposition of life imprisonment. He asked the court to look at the current sentencing trend and sentence the prisoner accordingly. He cited some case authorities which I will shortly refer to a little later.

7. Mr. Rangan replied by making reference to the statutory aggravations in s.229A (1) (2) and s.229B (1) (4) & (5) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. Counsel submitted that the offences are serious because there was a breach of trust reposed on the prisoner by the victim. 

Law

8. The charges you have been found guilty on and the one you pleaded guilty to are all serious in nature. They are serious because, the law on sexual touching and sexual penetration says that you could be sent to jail for long terms of imprisonment. On sexual penetration s.229A (1) (4) & (5) of the Act state:

"(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life

(3) 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, subject to Section 19, to imprisonment for life."

9. Then on sexual touching s.229B (1) (4) & (5) provides:

"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)… 

(3)… 

(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. 

(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 present case, presents itself into some very serious aggravating circumstances which the court will address before you are sentenced. The first two of those aggravations are covered by the statute itself. The victim in this case was on the dates you sexually penetrated and sexually touched her, 12 years 3 months old. She was I think not old enough to have sex. Even if she was a little more than 12 years, Subsection (3) of s.229A states that you can be sent to jail for life imprisonment because you related to the victim as your mother and her mother are biological sisters.

11. The maximum penalty for sexual touching is 7 years. But because there was an existing relationship of trust, authority and dependency, he can be sent to jail for a term not more than 12 years. This is how serious these offences committed against the Act are.

12. Relating this case to other cases which judges of this Court have sentenced offenders of cases of similar nature, I would like to cite a few cases on sexual penetration and a few on sexual touching. In The State v Thomas Angup (21.4.05) N2830, Judge, Lay; sentenced the prisoner to a cumulative sentence of 32 years. However, His Honour considered the totality principle in case law authorities and ordered the sentences to be served concurrently which resulted in the sentence being reduced to 20 years. (On totality principle, see Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, Mase v The State [1991] PNGLR 88 and Public Prosecutor v Terrence Kaveku [1977] PNGLR 110).

13. In The State v Peter Lare (2004) N2557, the prisoner was sentenced to 20 years for sexual penetration aggravated by physical violence. In The State v Kaminiel Okole (18.4.06) N3052, the prisoner pleaded guilty to two counts of sexual penetration and a third charge of breach of trust and authority laid under s.229E of the Act. For the first and second counts, he was sentenced to consecutive terms of 17 years. The third sentence of 5 years was ordered to be served concurrently upon the 17 years. Two years were suspended with conditions and he served the balance of 15 years.

14. This month in a case of sexual touching in The State v Mathias Tiamani (25.5.09) Cr.No.923 of 2008, the prisoner pleaded guilty to one count of sexual touching aggravated by an existing relationship of trust, authority and dependency, this court sentence the prisoner to a term of 4 years imprisonment. Two and a half years of that sentence was suspended due to the prisoner’s condition of health. He is suffering from high blood pressure. Secondly the accused was well advance in age. He was about 67 years old.

15. In The State v Thomas Tokaliu (22.2.06) N3026, a case of sexual touching with aggravations, he pleaded guilty to two counts of sexual touching, he was sentenced to 5 years, two years were suspended with conditions. In The State v Paul Nelson (25.5.05) N2844, a 65 year old man was sentenced to 3 years for a similar offence. There was no existing relationship of trust, authority or dependency. 

16. You are charged with two counts of sexual touching and one for sexual penetration. I am required by law to consider the principles of concurrent and consecutive sentence. In your case you committed these offences on three separate nights. They include closely related facts although they did not arise from a congeries of offences committed in the prosecution of a single purpose: Tremellan v The Queen [1973] PNGLR 116.

17. Considering your guilty plea on the 3rd count, your expression of remorse and your lawyer’s submission on mitigation together with the State lawyer’s address on aggravations, the court shall sentence you in the following manner.

Count.1. On the first count of sexual touching you are sentenced to 5 years imprisonment.

Count.2. On the second count for sexual penetration, the prisoner is sentenced to 10 years imprisonment.

Count.3. On count three, he is sentenced to 4 years imprisonment.

18. The court orders that the sentences for Count 1 & Count 2 be served cumulatively on each other making a total of 15 years. The sentence for Count three be served concurrently on the sentence in counts 1 and 2. The Court suspends 3 years from the sentence of 15 years on condition that after he has served 12 years, he shall enter into a recognizance to keep the peace for a period of 2 years.

19. I will not order compensation on this case. His bail money shall be refunded to him.

____________________________________

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