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State v Moses [2012] PGNC 213; N4886 (14 November 2012)

N4886

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 867 OF 2011

STATE

V

JACKY MOSES

Prisoner

Goroka: Ipang AJ
2012: 25, 31 October
14 November

CRIMINAL LAW – Sentence – Sentencing principles for Sexual Touching Child under 12 years – Criminal Code (Sexual Offences & Crimes Against Children) Act, 2002 – S.229 B (1) (a) (4) – Circumstances of aggravation – maximum penalty of 12 years – starting head sentence – identification of relevant considerations.

CRIMINAL LAW – Sentence – Pre Sentence Report and Means Assessment Report taken in to consideration – PSR recommends prisoner as suitable candidate for Probation.

CRIMINAL LAW – Sentence - Suspension of a sentence of imprisonment is not an exercise of leniency but an order made in the community interest designed to prevent re-offending.

Cases Cited
State v Paul Nelson (2005) N2844 (25.05.05)
State v Timothy Bipi (2009) N3608 (23.04.09)
State v Kagewa Tanang (2005) N2941

Counsel

Mr. K. Umpake, for the State

Ms. R.Kukari & Mr. R. Kasito, for the Prisoner

SENTENCE

14 November, 2012

1. IPANG AJ: The prisoner Jacky Moses pleaded guilty to one count of sexually touching the child victim JW at the time of the offence was two (2) years old by fondling with her vagina with his fingers. An offence which is contrary to Section 229 B (1) (a) and (4) of the Criminal Code (Sexual offences and Crimes Against Children) Act, 2002. This is the sentence for the prisoner.

Brief Facts

2. The relevant brief facts for the purpose of sentence for prisoner are as follows: On the 18th of January, 2011 between 11:00am and 1:00pm in the afternoon he took the child victim JW in to the house at Seigu village, Goroka and engaged in an act of sexually touching her by fondling with her vagina with his fingers. While doing this the child's mother called out for the child. This disturbed the prisoner and he let the child go.
   
3. During the incident the victim sustained injuries to her vagina. In the night while the child was passing urine, she felt pain. The child's mother found out and reported the matter to the Police. Prisoner was subsequently arrested and charged.
   

RELEVANT LAW

4. The penalty under the offence which the prisoner is charged with carries a maximum of 12 years imprisonment term. This penalty is provided for under subsection (4) of section 229 B. Thus, section 229 B provides:
   

"229 B

1. A person who, for sexual purposes –
   
   1. 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 not exceeding 12 years".
   

Antecedent Report

5. The Antecedent Report as presented by Mr. K.Umpake, State Prosecutor revealed that prisoner has nil prior convictions.
   

Allocutus

6. When I administered the allocutus, the prisoner said he is sorry for what he has done and asked for Probation.
   

Pre Sentence Report

7. At the time the prisoner was interviewed for the Pre Sentence Report to be prepared, he was 18 years old. Prisoner comes from a family of four (4) siblings comprising of two (2) females. He said he is the eldest. His second sister is Serah and she is 16 years old. The third born is Ale who is 8 years old and she is doing grade one (1) at East Goroka Primary School. The fourth born is Gena and she is four (4) years old. Prisoner's parents are unemployed settlers. They sell betel nuts and smoke at Seigu to sustain their family. They originated from Kimi in Okapa District of Eastern Highlands Province.
   
8. The prisoner has no source of income. He depends heavily on his parents for his basic needs. He said on the day of the offence the victim's mother went to the market to sell betel nuts and left the victim with him to take care of her. He said he played around with the victim, his younger sister and the victim's younger brother. He said his small sister and the victim were naked. After playing with the children for some time, he said he was sexually aroused. He scared the two (2) children away and took the victim in the house and sexually penetrated the victim's vagina with his fingers. He said the victim's parents found out and reported him to the Police. He was arrested and charged.
   
9. A community leader Gibson Urakusiee said the prisoner is a good person. Community sees him as an obedient person and always assists his parents. He said when the incident happened they realized the bad side of the prisoner. Urakusiee said when incident happened there was an argument but now both the victim's family and prisoner's family live happily. Michael Sipa confirmed that two families have reconciled. He said the prisoner's family under custom should compensate the victim's uncles so that there would be peace. What Michael Sipa said was confirmed by Wai Kuran and Rose Kuran, the victim's parents. Both also suggested a non- custodial sentence for the prisoner. The prisoner's parents are concerned about what prisoner did. They said they support the prisoner and pay compensation. They requested for a non- custodial sentence.
   
10. The prisoner was a grade 5 student at East Goroka Primary School in 2011 but has left school because of the incident. He is a first time offender and a juvenile. PSR states that he plans to do grade 6 next year, if he is given a non- custodial sentence. Prisoner has expressed remorse for what he did. Both the victim's family and the prisoner's family agreed that the prisoner be given a non –custodial sentence. PSR recommended prisoner as suitable candidate for Probation Supervision. In the Means Assessment Report the prisoner's family is willing to pay K1000.00 within 5 months. Probation Officer recommends K500.00 compensation to be paid within four (4) months.
    

Submission by Defence Counsel

11. Ms. R.Kukari of counsel for the Prisoner submitted the Prisoners Personal particulars much of which has been covered in the PSR so I do not wish to repeat them. Except that the prisoner practices his Christian faith with Seventh Day Adventist Church.
    
12. Defence Counsel submitted the following mitigating factors for the prisoner:
    
    1. No weapons were used against the victim.
    2. No relationship of trust.
    3. There is reconciliation between victims' relatives and the prisoners relatives.
    4. He co-operated well with the police during the investigation and made early plea.
    5. He pleaded guilty to committing the offence.
    6. He expressed remorse.
    7. He is a Juvenile and a first time offender – No prior conviction.
       
13. The following aggravating factors were submitted for the prisoner.
    
    1. There was a huge age difference (16 years)
    2. Victim sustained injuries.
       
14. Mr. K.Umpake of counsel for the State raised the aggravating circumstances and the need for a deterrent sentence to reflect this.
    
15. In terms of giving due consideration and reliance on the mitigating and aggravating factors to arrive at an appropriate sentence for the prisoner I consider the general approach stated by Cannings, J in The State v Paul Nelson (2005) N2844 (25 May, 2005) in the following terms:
    

"The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is the head sentence will be lifted above the starting. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be "strongly mitigating." Others maybe "mildly mitigating." The same goes for aggravating factors."

16. It is appropriate and relevant at this stage to consider past decided cases on how Judges have exercised their sentencing discretions in cases dealing with offences of Sexual Touching under Section 229 B of Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002. Refer to the table below with variety of sentencing ranges depending on circumstances of each case.
    

Table 1 Sentences of Section 229B of the Criminal Code (Sexual Offences and Crimes Against Children) Act, - Sexual Touching

17. From the decided cases dealt with offences of Sexual Touching under Section 229 B, the two (2) cases which seem to fall close to this instant case are The State v Paul Nelson (supra) and The State v Timothy Bipi (supra). In Paul Nelson (supra) like this instant case, the prisoner was indicated for one (1) count of Sexual Touching under S.229 B of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002. The prisoner was 65 years old and the victim was 12 years old. Prisoner sexually touched the victim's vagina with his fingers. There was a large age gap. The Court found, this was an isolated incident, no weapon was used, no physical injury was sustained, he co-operated with the police, did not cause further trouble, prisoner expressed remorse and was a first time offender. There was no existing relationship of trust, authority or dependency. Sentence of 3 years was imposed, 2 years were suspended and prisoner was to serve one (1) year.
    
18. In State v Timothy Bipi (supra) the prisoner was also charged with one count of sexual touching under s.229 b of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002. The prisoner was 18 years old and the victim was 13 years old. Prisoner sexually touched the victim's vagina with his penis. There was no weapon or aggravated violence used against the victim, moderate age gap between the prisoner and the victim, compensation was paid and there was reconciliation between the prisoner and the victim. Prisoner has not caused further trouble. He pleaded guilty and was a first time offender. There was no existing relationship of trust, authority or dependency. A sentence of 3 years imprisonment was imposed. Pre trial custody of one (1) year was deducted. Prisoner was sentenced to 2 years but was suspended with conditions.
    
19. In the present case, I have considered the following mitigating factors. Prisoner's early plea thus saving State's time and costs for putting up a trial. Prisoner co-operated with the Police. There was an understanding between Prisoner's family and relatives with victim's family and relatives. Prisoner is a first time offender and has no previous criminal record or conviction. He has expressed remorse and he is a juvenile. In aggravation, I find the following; there was a huge age difference between the prisoner and the victim. The prisoner was 17 years old at the time of the incident and the victim was 2 years old. So there was age difference of 15 years. The victim sustained injuries.
    
20. I have considered the Pre-sentence Report and the Means Assessment Report. I commend Ms. Keti Kenosi, Probation Officer based here in Goroka for the well- balanced Report compiled within short period when required. I have extracted much of the Pre-Sentence Report (PSR) in the earlier part of this judgment. The Pre Sentence Report spoke favorably of the prisoner and concluded that the prisoner is a suitable candidate for Probation Supervision.
    
21. I agree with the recommendation from the Probation Officer. Prisoner in this present case is very young to be sent to jail. Young people who are sent to jail are often mentally abused, physically and sexually by older prisoners. They are easy targets and can do very little to stop such assaults. In this day and age when diseases such as HIV- AIDS and other sexually transmitted diseases like syphilis or Gonorrhea are spreading through communities, a sentencing Judge or Magistrate must be more careful when exercising his or her sentencing discretion.
    
22. In Kuri Willie v the State [1987] PNGLR 298 Late Hinchliffe, J agreed with what was started in R v Taggart (1923) 17 Cr. App.R 132. These words are very much true and still very much reflective of today's situation:
    

"A judge or a Magistrate who sends a young man to prison for the first time takes on a grave responsibility. It is not practical or desirable to lay down a general rule but in many cases it is desirable to take a risk to save a young man or woman from the consequences of prison."

23. Again late Hinchliffe, J in State v Frank Kagai [1987] PNGLR 320 adopted the statements in William Davey [1980] FCA 134; (1980) 2 A. Crim R 254 I consider relevant:
    
    1. A sentencing judge should consider first and foremost the protection of the Community but judicial assessment of the prisoner, the prisoners family, his opportunities, demeanor and remorse and the precipitating factors causing the offence are also relevant.
       
    2. The suspension of a sentence of imprisonment is not an exercise in leniency but an order made in the community interest designed to prevent re-offending which a prison sentence standing alone seldom does.
       
    3. Persons charged with most serious offences may be dealt with by way of suspended sentence by reason of good character, the Court's view that there will be no re-offending ...... at times by reason of the fact that the Court believes that the particular individual will be positively damaged by immediate incarceration."
       
24. I am now saying that we should always bear in mind that juvenile offenders of today or at least some of them are potential adult offenders of tomorrow. Everyone knows and accepts the fact that those coming out of the custody, who are very young, are most likely to be re-convicted of another offence within two (2) years or even less than 2 years. It is clear that to break the ties with family, relatives, school, and local community (haus lain) is most unlikely to assist the young person in to law-abiding life. So for a juvenile (like the prisoner), custodial sentence:
    
    1. will only reduce the prisoner's responsibility,
       
    2. does not require him to face up with what he has done,
       
    3. does not require him to make any form of compensation to the victim or the public.
       
    4. removes him from the responsibilities, problems and temptations of everyday in life and it thus makes him less likely to acquire the self-discipline and self-reliance that will prevent re-offending in the future.
       
    5. reduces criminal activity for a limited period, but probably in the long term it adds to it because it adds to the difficulty which offenders find in living a normal and law abiding life.
       
25. I give the following sentence for the prisoner: I sentenced him to a prison term of 3 years. I deduct one (1) week, 4 days being for Pre- trial or Pre-Sentence Period spent in custody. Prisoner now has 2 years, 11 months 2 weeks to serve. I wholly suspended 2 years, 11 months & 2 weeks and placed the prisoner on Probation Supervision for two (2) years with the following conditions:
    
    1. Prisoner is placed on Probation Supervision to be supervised under Correction Based Centre, Goroka.
       
    2. He will do 100 hours of Community work to be identified and supervised by C.B.C.
       
    3. He will attend and receive 6 sessions of Counseling with Kafe Women's Association.
       
    4. Within four (4) months in to his Probation Supervision he shall pay a sum of K700.00 as compensation to the victim, victim's family and relatives. Payment to be witnessed by a CBC officer and Police Arresting Officer.
       
    5. Prisoner shall not live his usual place of resident and move to a new location without the leave of the National Court.
       
    6. He shall not consume dangerous drugs like marijuana and alcoholic drinks during his term of Probation Supervision.
       
    7. He should not commit any offences whilst serving his term of Probation Supervision.
       
    8. He should not take care or look after the victim during the term of his Probation Supervision.
       
    9. CBC to submit Quarterly Report to the National Court.
       
    10. Any breaches of the above conditions, will see Prisoner arrested and brought before this Court to be dealt with according to law.
        
    11. Prisoner's bail be refunded.
        

____________________________________
Public Prosecutor: Lawyer for the State

Paraka Lawyers: Lawyer for the Prisoner