N4471

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 999 OF 2010

THE STATE

V

LEDI SOGASOG

Madang: Cannings J
2011: 8, 15, 19 December

CRIMINAL LAW – sentencing – sexual touching of child – Criminal Code, Section 229B – multiple offences – whether sentences should be served concurrently or cumulatively – totality principle – relevance of age of offender.

A 59-year-old man pleaded guilty to two counts of sexually touching a child under the age of 16 years contrary to Section 229B(1)(a) of the Criminal Code. The victim was a 9-year-old girl, his granddaughter.

Held:

(1)	When sentencing an offender for multiple offences the court should arrive at a notional sentence for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the total sentence.

(2)	The following notional sentences were imposed: count 1: 4 years; count 2: 4 years. The total potential sentence is 4 + 4 = 8 years imprisonment.
 
(3)	The sentences will be served concurrently as the victim was the same and the offences were committed in one incident. Hence the total potential sentence was reduced to 4 years. The age of the offender was sufficiently taken into account in arriving at the sentence, and it was not necessary under the totality principle to reduce the total sentence, which is 4 years imprisonment.

(4)	The pre-sentence period in custody was deducted from the sentence but none of the sentence was suspended as the pre-sentence report did not warrant probation.

Cases cited

The following cases are cited in the judgment:

Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State (2006) SC890
The State v A Juvenile, "GS", CR 80/2009, 20.05.10
The State v Paul Nelson (2005) N2844
The State v Stafford Hambo (2010) N4120
The State v Steven Archie (2009) N3727
The State v Timothy Bipi (2009) N3608

SENTENCE

This was a judgment on sentence for an offender convicted of two counts of sexual touching of a child under the age of 16 years.

Counsel

J W Tamate & M Pil, for the State
M Mwawesi, for the offender

19 December, 2011

1. CANNINGS J: The offender, Ledi Sogasog, is before the court to be sentenced after pleading guilty to two counts of sexual touching of a child under the age of 16 years contrary to Section 229B(1)(a) of the Criminal Code. The offences were committed on Tuesday 29 September 2009 at Furan village, near Madang town. The victim in each case was the offender's 9-year-old granddaughter, "C". She was going to the river with her sister when she forgot her towel and headed back to the house. On the way she met the offender who asked her to come with him to collect firewood. She did as she was asked and went into the bush with her grandfather. After a while she needed to urinate so she removed her pants to do so and at that stage the offender whistled at her, then grabbed her by the arms and pulled her under a tree where he removed his trousers, held his penis, removed her clothes and tried to push his penis into her vagina. He then licked her vagina with his tongue and tried again to push his penis into her vagina. He was interrupted by the victim's older brother who had come looking for her. The subject of count 1 on the indictment was the act of licking the vagina with the tongue. Count 2 concerns touching the vagina with the penis.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He stated:

I apologise to the Court and to the lawyers involved in my case for what I have done. My wife has passed away and I have eight children to care for and I am very concerned about their welfare. The last one is in grade 5 and I do not want to spoil his education. I need to be able to find school fees for him. I am on the Ward Development Committee. Thank you for listening to what I have had to say. I ask for the mercy of the Court and to be given a non-custodial sentence.

OTHER MATTERS OF FACT

4. 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). There is nothing to take into account, however, as the allegations against the offender appearing from the District Court depositions are more serious than what he has pleaded guilty to. He has already been given the benefit of the doubt on a number of factual issues.

PRE-SENTENCE REPORT

5. Ledi Sogasog is 59 years old. He comes from Furan. His wife died several years ago. He has eight children. He was an officer of the Department of Health at Modilon General Hospital for 23 years prior to his retrenchment. He has a grade 8 education. He has a small copra and coconut plantation from which he derives a modest income. He is well known in the local community and is an elder in the Lutheran Church. He claims to have a number of allergies and to suffer from occasional malaria and to have knee problems, but there is no medical evidence that proves that his health is poor. The victim's parents and other family members are very angry with him for bringing shame on the family and on the victim and for spoiling the victim's psychological well-being and for not showing any remorse for what he has done. They do not seek compensation. They do not forgive him. There has been no reconciliation. They do not want him shown leniency. They want him given a custodial sentence.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Mwawesi urged the court to take into account the offender's advanced age. He is a first time offender, with no bad community record, so he should be considered for a suspended sentence on condition that he pay a reasonable amount of compensation. The sentences for each offence should be served concurrently as the offences were committed at the same place within a short space of time.

SUBMISSIONS BY THE STATE

7. Mr Tamate highlighted the tender age of the victim, the very large age gap of 50 years between the offender and the victim and the fact that the offences were committed within the family. The wishes of the family must be given special consideration and therefore the offender must be punished by being subject to a custodial sentence.

DECISION MAKING PROCESS

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

•	step 1: what is the maximum penalty for each offence?
•	step 2: what is the starting point for each offence?
•	step 3: what sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence for each offence?
•	step 5: should the sentences be served concurrently or cumulatively?
•	step 6: what is the effect of the totality principle?
•	step 7: should the pre-sentence period in custody be deducted?
•	step 8: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY FOR EACH OFFENCE?

9. 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.

10. The circumstances of aggravation prescribed by Sections 229B(4) and (5) were charged in the indictment: the child was under the age of 12 years and at the time of the offences there was an existing "relationship of trust, authority and dependency" (defined by Section 6A(2)(e) to include circumstances where the accused is the complainant's grandparent). 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 THE STARTING POINT FOR EACH OFFENCE?

11. I will use the middle of the available range: six years imprisonment.

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

12. Sentences have tended to fall within the range of three to six years imprisonment, as shown in the following table.

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 vagina with fingers.	3 years	
2	The State v Timothy Bipi (2009) N3608, Cannings J, Kimbe	Guilty plea – offender aged 15 – victim a 7-year-old girl – touching vagina with fingers.	2 years	
3	The State v Steven Archie (2009) N3727, Cannings J, Buka	Guilty plea – offender aged 18 – victim a 13-year-old girl – putting penis against vagina.	3 years	
4	The State v A Juvenile, "GS", CR 80/2009, 20.05.10, Cannings J, Madang	Guilty plea – offender aged 13 – victim a 6-year-old girl – touching vagina with fingers.	2 years	
5	The State v Stafford Hambo (2010) N4120, Cannings J, Buka	Guilty plea – offender aged 62 – five offences – victims were girls aged 8, 8 and 12 years – touching vagina, buttocks with hands, penis.	6 years	

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

13. The offender is being sentenced for two offences. The court must arrive at a notional sentence for each offence before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the total sentence. I will begin by examining count 1 in detail and allocate a sentence for it, and then consider count 2.

Count 1: licking vagina 

14. Aggravating factors are:

•	large age gap (50 years) between the offender and the victim;
•	tender age of victim (only 9 years old);
•	touching of the most private part of a girl's body;
•	very severe breach of trust.

15. Mitigating factors are:

•	no weapon or aggravated violence;
•	no physical injury;
•	he is a first-time offender;
•	the offender is of an advanced age.

16. Taking all those factors into account and comparing this case with the precedents outlined earlier, I impose a sentence of four years imprisonment.

Count 2: touching vagina with penis

17. This offence is very similar to count 1. I impose the same sentence: four years imprisonment.

Total potential sentence

It is:	4 years (count 1) + 4 years (count 2) = 8 years imprisonment	

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

18. The general rule is that if two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88). Here, the victim was the same and the offences were committed in the course of a single incident, so the sentences should be served concurrently. The total potential sentence is thus reduced to 4 years imprisonment.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

19. Under the totality principle the court looks at the total sentence that the offender is potentially facing to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing crushing sentences, those that are over the top or manifestly excessive. The offender is now 59 years old. He claims to have health problems but there is no medical evidence to support that claim and he shows no obvious signs of being unwell. I do not think a four-year prison term would be an excessive sentence. The offender's age has sufficiently been taken into account in arriving at the sentence. It is not necessary under the totality principle to reduce the total sentence.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

20. Yes. 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 which is 6 months, 2 weeks.

STEP 8: SHOULD THE SENTENCE BE SUSPENDED?

21. There is nothing in the pre-sentence report to warrant suspension of the sentence, there being no evidence of reconciliation with the victim or forgiveness or other resolution of the problems created by the offender. As Mr Tamate emphasised these were very serious offences as they were committed within the family. Despite the horrendous breach of trust that has occurred, if the family had been willing to try to resolve the problems created by the offender within the family, this may have provided justification for a suspended sentence. But that is not the case. The family wants to see the offender sent to prison. It seems that this may assist the victim, who is now 11 years old, in dealing with what has happened to her. I decline to suspend any part of the sentence.

SENTENCE

22. Ledi Sogasog, having been convicted of two counts of sexual touching of a child under the age of 16 years contrary to Section 229B(1)(a) of the Criminal Code in circumstances of aggravation under Sections 229B(4) and (5) of the Criminal Code on each count, namely that the child was under the age of 12 years and that there was at the time of the offence an existing relationship of trust, authority or dependency between the accused and the child, is subject to the following total sentence:

Length of sentence imposed	4 years	
Pre-sentence period to be deducted	6 months, 2 weeks	
Resultant length of sentence to be served	3 years, 5 months, 2 weeks	
Amount of sentence suspended	Nil	
Time to be served in custody	3 years, 5 months, 2 weeks	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.
_________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender