N4523

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1392 OF 2009

THE STATE

V

PATRICK PETER MOVA

Bialla: Kawi, J
2010: 10th November
2011: 16th March

CRIMINAL PRACTICE AND PROCEDURE – Sexual touching of a girl under 16 years – Section 229B of the Criminal Code – Accused used his tongue to lick vagina of a 4 year old young infant – Vagina of the girl traumatised as a result of the licking with human tongue – Circumstances of aggravation – The accused is in a relationship of trust and dependency – Aggravating factors reduce the weight of mitigating factors significantly – Need for a deterrent sentence to be imposed – Prisoner sentenced to five (5) years in jail.

Facts

The accused was indicted with one count of sexual touching contrary to Section 229B of the Criminal Code (Sexual Offences and Crimes Against Children's Act) 2002. Initially he pleaded not guilty; this forced the State to call three witnesses. At the close of the State case, the accused changed his plea to a guilty plea.

Held:

(1) Parliament enacted the Criminal Code (Sexual Offences and Crimes Against Children's Act with a deterrent objective to ensure that offenders and would be offenders who committed or have in mind to commit sexual crimes against our children and the female population are equally punished.

(2) A strong deterrent custodial sentence is warranted in this case. In the circumstances the accused is sentenced to 5 years jail to be served at the Lakiemata Jail in hard labour. 

Cases cited:

State –v- Paul Nelson [2005] N2844
The State v Damien Mangawi [2003] N2419
The State –v- Di Gideon [2002] N2335
The State –v- Peter Yawoma [2001] N2032
The State –v- Nivi Araba [1999] PNGLR 131
Aloises Peter Iboro Kovei –v- The State [2001] SC676
Avia Aihi –v- The State (No. 3) [1982] PNGLR 96
Goli Golu –v- The State [1979] PNGLR 653
James Mora Meaoa –v- The State [1996] PNGLR 280
The State –v- Sottie Apusa [1988-89] PNGLR 170
The State –v- Kiddi Sorari [2004] N2553
The State –v- Brady Mecki CR 1478 of 2006 N339
The State –v- Linus Miria CR 1623 of 2005
The State –v- Alexander Junior Nara (No. 2) [2007] N3214

Counsel

Mr Francis Popeu, for the State
Ms J. M. Ainui, for the accused 

16 March, 2011

SENTENCE

1. KAWI, J: Patrick Peter Mova initially pleaded not guilty on arraignment to an indictment charging him with one count of sexual touching contrary to Section 229B of the Criminal Code (Sexual Offences and Crimes Against Children's Act) 2002. 

2. The State called three witnesses who all gave evidence. Finding that the weight of the evidence was against him, his counsel advised the court that he was vacating his earlier plea of not guilty to one of guilty. I accepted this and the case then proceeded as a plea matter.

The Facts

3. The facts to which the accused admitted committing the offence are that on the 24th June 2009 at Area 8, Bialla, the accused was with the child, one CP and her mother Yvonne Sai in their house. About 9:00 am Yvonne Sai had returned to their main bedroom to fold the previous day's laundry. The victim CP was left alone with her uncle, the accused in the lounge room.

4. While there, the accused took advantage of the child tenderness and then after removing her pants poked his tongue into her vagina. At the relevant time CP was only 4 years old. By touching and licking her vagina with his tongue, the accused is alleged to have contravened Section 229B(1)(a)(4)(5) of the Criminal Code (Sexual Offences and Crime Against Children's) Act. 

5. Being the uncle of the victim, the accused is said to be in a relationship of trust and dependency with the victim.

6. The accused used his tongue to lick the vagina of the victim CP to satisfy his own sexual lusts and gratification and for sexual purposes.

7. The provisions of Section 229A, 229B and the offences created under that Division came about as a result of substantial amendments made to the Criminal Code relating especially to sexual offences against females and children. Parliament enacted and passed this amendment following widespread concerns all over the country over an increase in and the prevalence of sexual crimes against women, girls and children.

8. It was then felt that this category of our population is most vulnerable to any perverted sexual attacks and are defenceless.

9. The amendment is aimed at deterring offenders and would be offenders from committing such crimes or perpetrating their lustful carnal desires on our female population. See State –v- Paul Nelson [2005] N2844 per Cannings J.

10. A number of past National Court Judgments have acknowledged the failure that past National Court judgments are not deterring sexual offenders and would be sexual offenders. See for instance The State v Damien Mangawi [2003] N2419 and The State –v- Di Gideon [2002] N2335.

11. Victims of sexual offences may not be physically injured, but by its very nature, victims of such sexual crimes continue to suffer ongoing and long term psychological problems. The National Court has acknowledged this in two cases; viz The State –v- Peter Yawoma [2001] N2032 and The State –v- Nivi Araba [1999] PNGLR 131.

12. In the present case the accused pleaded not guilty on arraignment and the matter proceeded to trial. The state was forced to call three witnesses:

(a) Mrs Yvonne Sai – the mother of the victim.

(b) Mr Harry Peter – The Security Supervisor of Hargy Oil Palm Limited.

(c) Mr Richard Bulo – the Health Extension Officer who carried out a medical examination of the victim CP and whose evidence confirmed that the vagina of the victim CP was traumatized and the traumatic state of the vagina was consistent with a human tongue being used to lick the vagina. Harry Peter gave evidence of an admission made by the accused who confessed to the witness, confessing in Motu of what is being alleged. The accused had said to Peter Harry in Motu "Lau Karaia, ie I did it." 

13. On the basis of this clear unequivocal evidence, there was no way at all the court would have acquitted the accused let alone uphold or entertain any no case to answer submissions.

14. After the state closed its case, the court then explained to the accused, the options available to the accused at this stage. 

15. Learned counsel for the defence, Ms J. M. Ainui then advised the court that the accused was changing his plea from "Not guilty to one of guilty" in view of the evidence as it stands. Like all good defence counsels, Ms Ainui, may have to be commended for her diligent efforts in assessing the evidence as it stood and then explaining to the accused his almost nil chances of being acquitted. This is an excellent example of a good defence counsel, who bearing in mind her duties to her client as well as her duties to the court, did a highly commendable job in discharging her duties to her client in advising him his true chances of being acquitted or convicted. This court places on record the commendable efforts of defence counsel, Ms Ainui in that regard. 

16. Consequently after the change of plea, I then convicted the accused for sexual touching under Section 229B(1)(a)(4)(5) of the Criminal Code (Sexual Offences And Crimes Against Children) Act.

17. After conviction, the accused Patrick Peter Mova of Iokea, Gulf Province can now be properly referred to as a prisoner of the state.

Antecedent Report

18. The state does not allege any prior convictions in the National Court, but there is a recorded conviction against the prisoner in the District Court. In the District Court, the prisoner was convicted of possessing firearms under the Summary Offences Act and was sentenced to prison for two years in hard labour. He served the two years in Lakiemata prison from 2001 – 2002. For purposes of this case, I will treat the prisoner as a first time offender.

Allocutus

19. When the allocutus was administered, the prisoner told the court that he was very sorry for what he did. He apologized to the victim, her parents, the National Court and the Community of Bialla for his actions.

20. After expressing remorse, he pleaded for mercy and leniency. When he pleaded leniency, he asked the court to impose both a custodial or non-custodial sentence.

21. He was then remanded in custody for a Pre-Sentence Report to be done and for submission on sentence.

Pre-Sentence Report

22. A Pre-Sentence Report was prepared on the prisoner by the Probation Officer here in Kimbe/Bialla and this was relied upon by learned defence counsel in her submissions.

23. The Pre-Sentence Report sought the views of the offender, the parents of the victim as well as the other relatives of the offender. The parents of the victim refused in accepting any form of compensation for their daughter. They stated that any form of compensation would not restore the damage done to their daughter as the psychological harm was permanent. They stated that neither had reconciliation or any form of compensation payment had been attempted. And now it is too late to attempt any form of compensation or reconciliation. Even then they would not accept any form of compensation or reconciliation owing to the permanent nature of the damage done to their daughter.

24. The report assessed the prisoner to be of low risk to the community. It however, did not make any specific recommendations in terms of whether the court should impose a custodial or non-custodial or part custodial. It left that decision to the discretion of the court.

Sentencing Process

25. Sentencing is not an exact science. It is a discretionary process. And a sentencing judge has a wide discretion. And the sentencing discretion is vested upon a judge by Section 19 of the Criminal Code.

26. A sentencing judge always starts from a reference point when they are fixing a sentence. Usually a good reference point is a sentence in a previous case, against which the case being dealt with can be assessed. The judge assesses whether the case being dealt with is more or less serious. If it is, to what extent is it more serious or less serious?

27. Another sentencing principle that a sentencing judge takes into account is that the maximum penalty prescribed by the legislation itself is always reserved or imposed on cases which is assessed as being a worst type case or belonging to a class of cases categorized as a worst category case or the offender is classed as a worst type of offender.

28. An example of this kind of case is the Supreme Court decision in the case of Aloises Peter Iboro Kovei –v- The State [2001] SC 676. That was a case where the appellant appealed inter alia a life imprisonment sentence imposed by the National Court for the abduction, rape and brutal killing of a young woman.

29. Amet CJ and Gavara-Nanu and Kandakasi JJ made the following comments:

"It is a well accepted principle in our jurisdiction now, that the maximum penalty prescribed by the legislature should be reserved for the "worst type" or worst category of the offence under consideration. This has been made abundantly clear in the context of wilful murder cases. For example, the Supreme Court in Avia Aihi –v- The State (No. 3) [1982] PNGLR 96 referred to its earlier decision in Goli Golu –v- The State [1979] PNGLR 653, where it was said:

"In fact this court has said that the maximum sentence for any offence (including wilful murder) should be reserved for the most serious instance of a particular offence."

30. This principle of law has its genesis in the sentencing discretion vested in the court by Section 19 of the Criminal Code. Section 19 actually gives the court the discretion to impose a lesser penalty upon an offender if the factual circumstances of a case do not establish a case as falling in the "worst case" category. 

31. How I exercise that discretion depends upon the factual circumstances of a case under scrutiny.

32. More importantly the court will look at the mitigating factors operating in your favour and the aggravating factors operating against you.

33. A factor operating in your favour is your early plea of guilty. Your early plea saved the court a lot of time and expense in conducting a full trial in this case. But I note that your guilty plea came in only after the state was forced by your earlier not guilty plea to run a trial in which the state called three witnesses whose evidence proved the State case beyond reasonable doubt.

34. Looking now at the factors operating in your favour, I note the presence of the following factors;

•	You are a young unemployed man and this is your first time in court having committed a case of this nature, although in its antecedent report the prosecution informed the court that this is not your first time in court. Previously you were charged with illegally possessing a firearm without a license for which you were convicted and sentenced to two years in jail. I would have taken that conviction into account if that offence involved a child or was of a sexual nature directed at a child.

•	Did the offender plead guilty? It is generally accepted that if an offender pleads guilty, especially for an offence such as the present case, it is something that goes in his favour. It saves the court time and expense in running a full trial. More importantly it can minimise the hurt and grief of the victim and the victim's family.

•	What was the age of the victim? Generally speaking, the younger the child, the more serious the offence.

•	Was there any aggravated violence? If a child was actually harmed physically, because of the incident of sexual touching, this is a factor that would go against the prisoner. If threats were issued before, during or after the incident, this could in my view be regarded as aggravated violence, a factor which demands a heavier sentence.

•	Was the offence part of a pattern of persistent abuse? The crime of persistent abuse is provided for by Section 229D. Section 229D provides that a person who on two or more occasions engages in sexual penetration or sexual touching of a child or commits an indecent act directed at a child commits a separate offence.

There are many documented cases, where children have been the subject of a pattern of persistent sexual abuse by members of their own family. Many such children have to live with the trauma, guilt and devastation of these prolonged incidents for the rest of their lives. No evidence was produced to show that this was a case of persistent sexual touching. I therefore find that it is simply a case of a one off incident which goes in your favour.

•	Is there an existing relationship of trust, authority or dependency? What was the strength of that relationship? The level of breach of trust is to be considered and judged on its own merits. The closer the bond of trust between the offender and the child, the more serious is the betrayal of trust, where an offence of a sexual nature is committed. And thus the penalty must also be higher.

The evidence produced so far here is that the accused is the uncle of the victim. This being so there is a serious breach of that relationship of trust and dependency. I find that this is a factor against the accused which calls for a stronger penalty to be imposed.

Both the National and Supreme Courts have clearly stated that an offence created in a breach of trust situation renders the commission of the offence to be very serious. Thus the Supreme Court in James Mora Meaoa –v- The State [1996] PNGLR 280, made that very clear. In so doing it held that a breach of a position of trust is an aggravating factor in sexual offences and warrants heavier sentence.

It also held that position of trust may even extent to de-facto situations such as a vehicle or boat operator and his passengers.

•	Has the offender shown or offered any remorse, apology or regret or sorrow? If so is it genuine, meaningful, timely and tangible? If there was remorse shown and apology given, then that would be a factor in favour of the offender.

35. In this case, no compensation or regret or apology was offered to the victim and her parents. In fact the pre-sentence report states that the offender did not offer any apologies to the victim, or had reconciliation been sought amongst them. The parents of the victim now say that the accused must now be severally punished.

36. Furthermore, there was no genuine expression of remorse shown by the offender to the victim. Neither was compensation ever attempted. Even then the offender has no capacity to make any form of compensation payments if the court were to order compensation.

37. Another factor of aggravation against you is that this offence was committed by you upon a very young girl who has not even reached the age of puberty or adolescence as yet. Parliament amended the Criminal Code as passed by the legislation Criminal Code (Sexual Offences And Crimes Against Children's Act 2001) to show its displeasure and other disgust at the ever increasing and the prevalence of sexual crimes and offences committed against young girls, women and even children, who constitute the most vulnerable part of our population. The people's displeasure and their indignation to these sexual crimes is reflected in range of sentences imposed on offenders for the commission of these kind of offences. The courts on their part have been imposing heavy deterrent sentences on sexual offenders. Despite this, sexual predators like you have not taken heed of the deterrent sentences imposed on offenders.

38. Weighing all these factors together, I find that the aggravating factors which I discussed above, far outweigh any factors operating in your favour. In my view therefore, it is more sensible and appropriate that a strong deterrent and custodial sentence is warranted and should be imposed upon you.

Sentencing Tariffs And The Offence

39. What you did was against the law in particular s229B(1) and 229B(4) of the Criminal Code. This provision is stated in these terms:

s.229B(1) – 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;

is guilty of a crime.

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

(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 of not exceeding 12 years.

40. The victim CP here was 4 years old when you committed the offence upon her by poking your tongue and licking her vagina with your tongue. Effectively then she was a child under 12 years old. You are therefore caught by Subsection 4 of the Criminal Code. 

41. In determining your penalty, I will therefore start at 12 years and adjust downwards.

42. The predecessor of this offence was Section 216 –

"Defilement of girls under 16 and of ..............."

43. The maximum sentence prescribed then was 5 years subject of course to Section 19 of the Code.

44. Section 11 of the Criminal Code (Sexual Offences And Crimes Against Children) Act 2002 repealed and replaced S216 with Section 229B.

45. The only reported case on point is the case of The State –v– Sottie Apusa [1988-89] PNGLR 170. That was a case where the offender, a step father had sexual intercourse with his step daughter six times over a period of 4 months. He pleaded guilty to a charge under Section 216(1)(a) of the Criminal Code and was imprisoned for 3 years and two months in hard labour.

46. Brunton AJ set out some guidelines for sentencing in unlawful carnal knowledge cases. Those guidelines which appear in the head note to the judgment are in these terms:

(1) a lower range from discharge up to 20 months for cases where the accused and the victim are of similar age, where the accused is a young offender and the victim between 14 and 16 years and where the offender is disabled, or physically or mentally handicapped and the victim a consenting party. 

(2) A middle range from 20 months to 40 months, for cases where the accused is a mature man and there are no circumstances of aggravations;

(3) An upper range from 40 months to the maximum of five years, for cases where there a sentences of aggravations, such as cases where there is a relationship of trust and dependency between the accused and the victim, for example, a teacher and a pupil, medical officer and patient, and step father and uncle relationships.

47. In The State –v– Kiddi Sorari [2004] N2553, the accused pleaded guilty to a charge under Section 229B(1)(4) in that he abducted a victim, a young girl under 16 years by holding her up with a bush knife. He then forcefully removed her clothes and used his fingers to rub against her vagina. He was chased away before he could do any other damage. The rubbing of the fingers on the victim's vagina caused minor grazes under the victim's vagina. Kandakasi J sentenced the offender to five years in prison minus the time spent in custody.

48. In The State –v– Brady Meki [2006] N3391, Kandakasi J imposed a sentence of 3 years jail against a young 19 year old first offender who pleaded guilty to a charge of sexually touching a 6 year old female victim. The prisoner had touched the victim's vagina with his index finger. There were no circumstances of aggravation, but the victim sustained bruises to her vagina. His Honour made these comments when sentencing Brady Meki;

"......Parliament considered then (2003) and even now, that sexual exploitation and abuse of young children as very serious offences. The reasons for this is because this category of our population is very vulnerable and defenceless. Therefore the need to protect our young children against offenders like you is far more urgent and important. Past sentences have failed to fulfil that desire to protect our children, evidence (sic) by the prevalence of the offence.

Accordingly Parliament increased the penalty from 5 years to 12 years for the offence of sexual touching of a girl under the age of 12........."

49. In The State –v–Linus Miria CR 1623 of 2005, the accused pleaded guilty to one count of sexual touching of a child under 12 years. He had placed his erected penis on the victim's outer genitalia and then ejaculated on her. It was later discovered that the victim contracted gonorrhoea and syphilis from what the accused did to her. He was sentenced to 11 years of which 1 year was suspended.

50. In The State –v– Alexander Junior Nara (No. 2) [2007] N3214, after a trial, the accused was found guilty of sexual touching under Section 229B(1)(a)(4) of the Criminal Code. 

51. In that case the victim had gone to the house of the accused to fetch water from a drum. As she bent over the drum to fetch water, the accused walked up from the rear and held her. He inserted his fingers and touched and fondled her vagina and rubbed it. The victim screamed and ran off to her mother. She did not sustain any physical injuries to her vagina or to her body. However, there existed a relationship of trust and dependency, in that the offender and the victim's mothers were blood brother and sister. The victim was therefore a niece to the offender. At the time of the offence, the victim was 9 years old and the offender was 24 years old. He was sentenced to five (5) years in hard labour.

Your Sentence

52. I have taken into account factors operating in your favour and those against you. I have also taken into account matters you raised in your allocutus. The age difference between you and the victim was quite substantial when you committed the offence upon her. You were twenty-four (24) and she was only four (4). There is an age difference of 20 years. There is also in existence a relationship of trust, authority and dependency. While there was no physical injury caused to the young victim, her vagina was traumatized from your act of licking it with your tongue. These factors are serious enough for a custodial sentence to be imposed. In my view suspension of the whole or part of the sentence, other than a deduction of time spent in custody, is inappropriate.

53. In my view, sexual offenders must always be punished severally with the imposition of strong custodial sentences which should serve as a deterrent. Parliament in enacting the Criminal Code (Sexual Offences And Crimes Against Children) Act 2002 had intended that offenders and would be offenders should be deterred from committing sexual crimes against children and our female population. It would be remise of me as a judge not to give effect to this honourable intention. 

54. In my view, a strong deterrent sentence would be strong custodial sentence. 

55. Taking a comparative approach on the sentencing trend fixed by the decisions examined above, I find that your case is much more closer to the cases of Alexander Junior Nora (No. 2), Kiddi Sorawi, Brady Meki and Linus Miria.

56. Going by the sentencing range, fixed by those cases, I impose a sentence of five (5) years upon you to be served at the Lakiemata prison outside Kimbe. The period spent in custody awaiting trial is however to be deducted from these five (5) years.

Judgement accordingly.

___________________________________
The Acting Public prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused