N4630
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.548 of 2011

BETWEEN:

THE STATE

AND:

TALA JOHN
Prisoner

Mt Hagen: David, J
2012: 5 & 11 April

CRIMINAL LAW – sentence – sexual touching of victim's vagina using fingers – victim aged 10 years at the time of offence – prisoner is biological parent aged 35 years - depositions disclose evidence of sexual penetration of the victim's vagina with fingers and penis – serious injuries to vagina including tearing of hymen - indictment presented for a lesser charge – sentence of 6 years imposed. 

Cases cited:

Sakarowa Koe v The State (2004) SC739 
Review Pursuant to Constitution, Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855
The State v Jack Gola and Mopana Aure [1990] PNGLR 206
The State v Peter Yawoma (2001) N2032
The State v Attiock Ishmael (2001) N2294
The State v Moki Lepi (No 2) (2002) N2278
The State v Kagewa Tanang (2003) N2941
The State v Moki Lepi (No.3) (2004) N2374
The State v Kiddi Sorari (2004) N2553
The State v Thomas Angup (2005) N2830
The State v Paul Nelson (2005) N2844
The State v Thomas Tukaliu (2006) N3026
The State v William Patangala (2006) N3027
The State v Brady Meki (2006) N3391
The State v Alexander Junior Nara, CR 1236 of 2004, Unreported & Unnumbered Judgment of Davani, J delivered at Kimbe on 17 April 2007 
The State v Wasa David Warifa (2008) N3308
The State v Timothy Bipi (2009) N3608
The State v Jack Manuel Narakavi (2009) N3737
The State v Levi Ateika (2010) N3962

Counsel:

Joe Kesan, for the State
Philip Kapi Leka, for the prisoner

SENTENCE
11 April, 2012

1.	DAVID, J: The prisoner was convicted on a plea of guilty to a charge of sexual touching with his fingers, the vagina of a female child under the age of 12 years namely Gabal Tala, who was then aged 10 years, on 30 March 2011 at Bunumwo Tea Plantation, Banz in the Jiwaka Province contrary to section 229B (1)(a)(4) and (5) of the Criminal Code. 

2.	The short facts presented to the Court for purposes of arraignment were that on 30 March 2011, the prisoner was sleeping in his house with his children including the victim, aged 10 years at the time at Bunumwo Tea Plantation, Banz in the Jiwaka Province. In the early hours of that day between 01:00 am and 02:00 am, the prisoner got up from where he was sleeping in his room and went over to the children's room where the children including the victim were sleeping. He went to the victim, removed her clothes and rubbed his fingers against her vagina. The victim was the prisoner's biological child, the first born. The prisoner breached the relationship of trust.

3.	The prisoner is from Mormaulle village in the Gumine District of the Simbu Province. He is now 35 years old. He was married to Ambai, but his wife died in 2009 and he remains a widower. They have 5 children from the marriage and the victim is the eldest. He was employed by WR Carpenters as a casual labourer at the Bunumwo Tea Plantation and was residing at the residential compound at the plantation at the time of the offence. His parents are deceased. He is the 4th born out of 8 siblings in his family comprising 4 sisters and 4 brothers. He has received no formal education. He has been in custody since committing the offence on 30 March 2011 and that works out to be 1 year and 12 days.

4.	The prisoner has no prior convictions.

5.	In his allocutus, the prisoner said the victim had been away from home for about 2 months and was staying with people who were not relatives at a place he did not know. Someone told him where she was so after finishing work at 03:00 pm, he went to find her at the location given accompanied by 2 of his brothers. Compensation of K200.00 was demanded by people the victim was residing with. He only had K20.00 on him at the time so he paid them that amount. They then took the victim an d returned home. The victim was away for so long and might have been going around with men during that time so he wanted to check her body. He committed the offence whilst in the process of doing that.

6.	In mitigation, it was submitted that; the prisoner pleaded guilty; the prisoner was a first offender; and the prisoner co-operated with the police by making early admissions in the Record of Interview.

7.	Mr. Kapi Leka for the prisoner submitted that this case did not fall within the worst category of the offence under consideration so the maximum penalty for the offence should not be imposed. He suggested that a sentence between 3 to 5 years was appropriate in the circumstances of the present case.

8. 	Mr. Kapi Leka invited me to consider a number of decisions imposed by the National Court to assist me arrive at an appropriate sentence for the prisoner. These were The State v Peter Yawoma (2001) N2032; The State v Moki Lepi (No 2) (2002) N2278; The State v Kiddi Sorari (2004) N2553; The State v William Patangala (2006) N3027; The State v Brady Meki (2006) N3391; The State v Alexander Junior Nara, CR 1236 of 2004, Unreported & Unnumbered Judgment of Davani, J delivered at Kimbe on 17 April 2007. 

9.	In Peter Yawoma, the prisoner was charged with one count of unlawful carnal knowledge of a girl under the age of 16 years pursuant to the now repealed section 216 (1)(a) of the Code. That followed a plea bargain between the parties from the more serious charge of rape. The victim aged 13 years was gang raped by the prisoner and 2 of his accomplices whilst on her way home. Serious physical injuries were inflicted upon the victim, especially her vagina through penile penetration and the insertion of a copper wire coil. These injuries included bruises and lacerations to her vaginal wall, her hymen was torn and she was still bleeding from her vagina. The offence carried a maximum penalty of 5 years. The prisoner's co-offender was convicted on a similar charge and sentenced to 2 years IHL. On a guilty plea and to avoid disparity of sentence, a sentence of 2 years IHL was imposed.

10.	In Moki Lepi (No.2), a sentence of 8 years was imposed on a charge of attempted unlawful carnal knowledge of a girl under the age of 10 years and a further 3 years for indecently dealing with a girl under the age of 16 years after a trial. These sentences were ordered to be served cumulatively. That was in a case of a breach of a trust relationship where the victim and the offender were distantly related as niece and uncle respectively through the offender's marriage to the victim's aunt. The maximum penalty for unlawful carnal knowledge of a girl under the age of 10 years was 14 years. The maximum penalty for indecently dealing with a girl under the age of 16 years was 5 years if the victim were under the age of 12 years. The victim was about 5 years old at the time of the offences and the offender was a married man with children of his own. There was a substantial age difference. The offences were committed over a period of 7 months at different places including at the victim's grandparents' house.

11.	To the summary of the above-mentioned case, I add that the prisoner appealed against both his conviction and sentence. The Supreme Court confirmed his conviction, but upheld his appeal against sentence and remitted the matter back to the trial judge for a re-sentence for failure to administer the allocutus. At the re-hearing, the trial judge saw no reason to depart from the earlier sentences and re-imposed them less time already spent in custody. The case is now reported as The State v Moki Lepi (No.3) (2004) N2374.

12.	In Kiddi Sorari, the prisoner aged 14 years at the time of the offence was convicted for sexually touching a female child aged 6 years on her vagina with his fingers on a plea of guilty and sentenced to 5 years imprisonment in hard labour. The prisoner rubbed his fingers on the victim's vagina and tried to push his fingers into her vagina as well. The prisoner held up the victim and her sister as they were walking to their village with a knife and took the victim into the nearby bushes where he committed the offence. There were minor grazes to her clitoris and the vaginal area in general. The Court found that this was in fact an act of abduction and attempted rape.

13.	In William Patangala, the prisoner was convicted on a plea of guilty to one count of sexual touching aggravated by an existing relationship of trust, authority and dependency. The prisoner's wife and the victim's mother were sisters therefore he was an uncle to the victim. The victim was aged 14 years at the time of the offence. The prisoner fondled the victim's breasts and sucked the nipples. The prisoner paid compensation comprising K300.00 and 60 fathoms of tabu to the victim and her relatives after an order was made by village elders. He was sentenced to 4 years imprisonment and 3 years was suspended on terms. 

14.	In Brady Meki, the prisoner aged 18 years at the time of the offence was convicted for sexually touching a female child aged 6 years on her vagina with his right index finger on a plea of guilty and sentenced to 3 years imprisonment in hard labour. There was an attempt by the prisoner to sexually penetrate the vagina and in the process he caused some minor bruises and abrasions to the vagina resulting in bleeding.

15.	In Alexander Junior Nara, the prisoner was convicted for sexually touching a female child aged 9 years on her private parts with his hands after a trial and sentenced to 5 years imprisonment in hard labour. He was aged 25 years when he committed the offence. The victim did not sustain any injury. The prisoner and the victim were first cousins. 

16.	In aggravation, it was submitted by the State that this was a serious sexual touching case as was evidenced by the fact that the victim was a young girl aged 10 years at the time of the offence; the medical report revealing that the victim suffered serious injuries to her private parts; and the prisoner was guilty of breaching an intimate relationship of trust, authority or dependency in his position as the biological father of the victim. 

17.	Mr. Kesan submitted that the circumstances of the present case were similar to Alexander Junior Nara because close family members were involved. He urged the Court to impose a sentence between 5 and 6 years. 

18.	Section 229B of the Criminal Code creates the offence of sexual touching and prescribes the penalties for the offence. The maximum penalties range from 7 years imprisonment for sexual touching of a child under the age of 16 years under subsection (1) to 12 years imprisonment for sexual touching of a child under the age of 12 years and for breach of an existing relationship of trust, authority or dependency between an offender and the child under sub-section (4) and (5) subject to the Court's discretion to impose a lesser sentence under the various options available to the Court under section 19 of the Code.

19.	Section 229B 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, 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 sub-sections (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.

20.	In the present case, conviction was secured under section 229B (1) of the Code with aggravating circumstances under sub-sections (4) and (5), that is, that the victim was under the age of 12 years and there was an existing relationship of trust, authority or dependency between the prisoner and the victim. The maximum penalty applicable will therefore be 12 years imprisonment. 

21.	I find that the factors which mitigate the offence in the present case are that: first, the prisoner pleaded guilty therefore saving the Court time and resources to conduct a trial to determine his guilt and this also prevented the victim from being brought to Court to testify against the prisoner and saving the victim the stress and embarrassment to relive the bad memories in the course; second, the prisoner has no prior convictions, he is a first offender; third, until committing the offence, the prisoner had a good background; fourth, he co-operated with the police during their investigations by making an early admission whereby he accepted criminal responsibility for his action and he maintained that stance culminating in his pleading guilty; fifth, the prisoner acted alone; sixth, the prisoner is an unsophisticated casual labourer with no formal education; and seventh, this was an isolated incident.

22.	I find that the factors which aggravate the offence in the present case are these. 	First, the victim was of tender age, actually aged 10 years at the time of the offence. Second, the prisoner committed the offence in breach of the sacred relationship of trust, authority and dependency reposed in the prisoner as the biological father in their home. Third, serious injuries were inflicted on the vaginal area including the tearing of the hymen causing bleeding. That fact is supported by the medical report authored by one Dr. Paula Zeferio of the Mt. Hagen General Hospital dated 8 April 2011 (the Medical Report). Fourth, there is uncontroverted evidence that the prisoner sexually penetrated the victim's vagina with his fingers and penis. The learned doctor concluded in the Medical Report that the victim showed signs of being sexually penetrated and assaulted. The record of interview and the victim's undated statement to the police confirm that the prisoner sexually penetrated the victim's vagina with his fingers and penis. Fifth, there was a substantial age disparity of about 25 years. Sixth, the victim did not consent. The prisoner assaulted the victim by slapping her on her back and then forced her down on to the bed and did what he did. Seventh, the offence is prevalent. 

23.	The prisoner did not express any remorse, but I will treat that as a neutral factor. 

24.	I consider that both the number and the strength of the factors in mitigation and those in aggravation are equal. 

25.	The offences of sexual penetration of a child under section 229A of the Code and rape under section 347 of the Code are far more serious than the offence with which the prisoner has been charged. They each attract the maximum penalty of life imprisonment subject to section 19 of the Code where the offences are committed in circumstances of aggravation under section 229A (2) and (3) and section 347 (2) of the Code. Where the offences are committed without circumstances of aggravation, the maximum penalties are imprisonment for a term not exceeding 25 years under section 229A (1) and imprisonment for 15 years under section 347 (1) of the Code.

26.	The Public Prosecutor in the exercise of his unfettered discretion derived from sections 176 and 177 of the Constitution, section 4 (1) of the Public Prosecutor (Office and Functions) Act Ch.338 and sections 524, 525 and 526 of the Code either by himself or through a State Prosecutor has power to lay an indictment in the National Court on the charge or charges he prefers to pursue against an offender either after the offender is committed to stand trial in the National Court through the committal process or under his power to lay an ex-officio indictment pursuant to section 526 of the Code. His power is an absolute one: The State v Jack Gola and Mopana Aure [1990] PNGLR 206, Review Pursuant to Constitution, Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855. The Court has no power to direct or interfere with the functions of the Public Prosecutor by virtue of his independence under the Constitution.

27.	In the present case, it appears that the serious charges of sexual penetration of a child and rape have been abandoned for the lesser charge of sexual touching most likely as a result of plea bargaining. I will bear that in mind when considering an appropriate sentence for the prisoner: The State v Attiock Ishmel (2001) N2294, Sakarowa Koe v The State (2004) SC739. 

28.	Apart from the cases that counsel have cited which I have considered, I have also considered The State v Kagewa Tanang (2003) N2941, The State v Thomas Angup (2005) N2830, The State v Paul Nelson (2005) N2844, The State v Thomas Tukaliu (2006) N3026, The State v Wasa David Warifa (2008) N3308, The State v Timothy Bipi (2009) N3608, The State v Jack Manuel Narakavi (2009) N3737, The State v Levi Ateika (2010) N3962.

29.	In Kagewa Tanang, the victim was the daughter of the prisoner's brother. The prisoner pleaded guilty to one count of sexual touching with his penis of the vagina of the victim who was under the age of 12 years. She was then aged 10 years. The prisoner was aged 41 years, married and had 5 children. He unsuccessfully attempted penetration of the victim's vagina a number of times with his penis. He was sentenced to 6 years imprisonment.

30.	In Thomas Angup, the prisoner was convicted on entering pleas of guilty to one count of sexual touching of a girl under the age of 12 years in 1998, one count of sexual penetration of a child under the age of 12 years in 1998, two counts of sexual penetration of a girl under the age of 16 years, one in 2000 and one in 2003 on unspecified dates. The prisoner committed these offences in breach of an existing relationship of trust as a step-father. The charges arose out of a pattern of sexual abuse over a period of 6 years. The complainant became pregnant and bore a male child before attaining the age of 16 years and her schooling was terminated prematurely. The prisoner was 34 years old at the time of conviction. In relation to the first count of sexual touching, he was sentenced to 4 years imprisonment. This was made to be served concurrently with the sentences for the other offences.

31.	In Paul Nelson, the prisoner aged 65 years was convicted of the offence of sexual touching of a female child under the age of 16 years of her vagina with his fingers on a plea of guilty and sentenced to 3 years imprisonment in hard labour. The victim was aged 12 years at the time. Two years of the sentence was suspended on terms. There was no existing relationship of trust, authority and dependency and it was an isolated incident. 

32.	In Thomas Tukaliu, the prisoner pleaded guilty to 2 counts of sexual touching of a 10 year old victim. On both occasions, the offences were aggravated by an existing relationship of trust, authority and dependency. The victim was the daughter of the prisoner's eldest brother, thus, the prisoner's niece. He had on previous occasions sexually touched the victim many times. He was sentenced to 5 years imprisonment. Three years of the sentence was suspended on terms. 

33.	In Wasa David Warifa, the prisoner aged 24 years at the time of the offence was convicted for sexually touching a female child aged 6 years on her vagina with his penis on a plea of guilty and sentenced to 7 years imprisonment in hard labour. The prisoner attempted to sexually penetrate the victim with his penis, but did not succeed and ejaculated outside her vagina. The prisoner also caused some minor injuries and the victim bled from her vagina. The victim regarded the prisoner as an uncle.

34.	In Timothy Bipi, the prisoner pleaded guilty to 2 counts of child sex offences in 2 different incidents. The prisoner was living with the victims and their parents and he committed the offences in the family home. For the first count, he was charged with the offence of sexual touching of a female child aged 5 years on her vagina with his fingers and was sentenced to 2 years imprisonment. For the second count, the prisoner was charged with engaging in an act of sexual penetration, an offence under section 229A (1) and (2) of the Code. The victim was the first victim's sister and aged 9 years. The prisoner was aged 15 years at the time of the offences. He was sentenced to 6 years imprisonment. The sentences were ordered to be served cumulatively. 

35.	In Jack Manuel Narakavi, the prisoner aged 35 years at the time of the offence was convicted for sexually touching a female child aged 14 years on her vagina and anus with his penis on a plea of guilty and sentenced to 5 years imprisonment in hard labour. There was a breach of an existing relationship of trust, authority and dependency between the prisoner and the victim, the prisoner being an adoptive parent or guardian of the victim. The victim had been raised by the prisoner and his wife since she was about 4 years old.

36.	In Levi Ateika, the prisoner pleaded guilty to 2 counts of sexual touching with aggravating factors 2 young girls under the age of 16 years. The victims, DR and AS, were cousins and were both aged about 9 years at the time of the incident. The prisoner was aged 35 years at the time. He was married to the elder sister of AS' mother so he was a close relative to the victims. After returning from school, the victims went to DR's house preparing to cook some food. As they were preparing, the prisoner approached them. He told them to follow him to his block of land where he had a house and the victims followed him to his house. Upon arriving there, he told AS and another small girl to go into his cocoa block and gather some dry firewood. He then invited DR into his house and into his bedroom. In the bedroom, he told her to lie on the bed. He then removed all her clothes and using his finger he rubbed some sort of oil on her body. In the process he touched her vagina, kissed it, sexually penetrated her vagina with his penis and then ejaculated on her vagina. After DR left, he invited AS to also go into the bedroom and repeated what he did to DR on her. The prisoner was sentenced to 5 years imprisonment in hard labour on both counts which were ordered to be served concurrently as the offences arose out of closely related facts. 

37.	As can be seen from these cases, the sentencing trend by the National Court on the offence of sexual touching has fluctuated from terms of imprisonment of 3 years to 7 years and parts of sentences have been suspended on terms. They demonstrate that the National Court in the exercise of its sentencing discretion has imposed varying sentences according to the circumstances of each particular case. I will consider a sentence between 3 and 7 years. 

38.	None of the cases I have cited above involve biological parents. Cases involving a step-father or an adoptive father are Thomas Angup and Jack Manuel Narakavi where as I have alluded to earlier sentences of 4 years and 5 years were imposed respectively. The sentence in the present case will have to be closer to these cases. However, the seriousness and prevalence of the offence calls for a stern sentence for purposes of personal and general deterrence. 

39.	In all the circumstances, I consider that a sentence of 6 years in hard labour is appropriate. From the head sentence, I deduct the period of 1 year and 12 days for the pre-sentence period the prisoner has already spent in custody. He will serve the balance of 4 years, 11 months and 16 days at the Baisu Correctional Institution subject to any remission of any part of the sentence for good conduct whilst incarcerated or the need for relocation done pursuant to the provisions of the Correctional Service Act. 

40.	A warrant to execute the sentence shall issue forthwith.

Sentenced accordingly.
____________________________________________________
P. Kaluwin, Public Prosecutor: Lawyer for the State 	
F. Pitpit, Public Solicitor: Lawyer for the prisoner