N5249

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.649 OF 2012

THE STATE

V

MICHAEL SION

Kokopo: Lenalia, J.
2013: 15th, 19th April & 20th May

CRIMINAL LAW – Sexual Offences – Sexual Touching Of A Minor – Aggravations – Existing Relationship Of Trust, Dependency And Trust – Sexual Touching Of Minor And Underage Child – Plea – Matters For Consideration – Sentence – Criminal Code (Sexual Offences And Crimes Against Children) Act 2002.S.349(1) (A) By Definition Of S.6a Of The Act. 

CRIMINAL LAW – Sexual Offence – Sexual Touching Of His Wife On Suspicion Of Having Extra-Marital Affairs With Another Man – Sentence – Matters For Consideration – Sentence Of 3 Years Appropriate But Fully Suspended With Conditions

Cases cited

Maima-v-Sma [1972] PNGLR 49
John Elipa Kalabus-v-The State [1989] 195
The State-v-Penias Mokei (No.2) (26.8.04) N2635
The State v Paul Nelson (25.5.05) N2844
The State v Kagewa Tenant (2005) N2941
The State v William Patangala (2005) N3027
The State-v-Thomas Tukaliu (2006) N3026
The State-v-Mark Samuel Haupas (2007)
The State-v-Hillary Laris (2009) N3724
The State-v-Ima Esiko (2009)
The State-v-Marcus Yame (2010) N4131

Counsel

Mrs. S.Cherake, for the State
Mr. B.Waffi, for the Accused

SENTENCE

20th May, 2013

1. LENALIA, J: The accused pleaded guilty to one count of sexual touching of the victim contrary to Section 349(1)(a) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. At the time and date of the offence the victim was and is still the accused wife.

Facts.

2. The victim of this case, Serah Michael is the wife of the prisoner. The State's case is that, from Tuesday 7th to 10th February 2012, the prisoner has suspected his wife of having extra-marital affair with another man. Between the hours of 12 midnight and 1 am in the morning of those four day, the prisoner woke his wife up and started to ask Serah if someone had been having sex with her. In the course of questioning her, he used the torch to check the victim's vagina and used his hands together with the torch and pushed them in and out of the vagina. It was really hurtful to the victim and on the fourth time she decided to report the matter as it had been repeated four times. The prosecution has only brought one charge.

Addresses on Sentence.
 
3. The prisoner said, he is sorry to the State, to the victim and her relatives and to those who were in the court room and Court. He asked for leniency saying he is married with three children with the first born doing Grade 10 this year at Malabonga Secondary School. 

4. For the prisoner, Mr. Waffi submitted that that the case concerns the prisoner and his wife and the Court should consider the prisoner's guilty plea and is previous good character and sentence the prisoner accordingly. He submitted this case is not the worse type case and 

5. Mrs. Cherake of counsel for the State replied by saying that this case is one of those rare cases where the prisoner is charged with sexual touching of his wife. Counsel submitted that this case would be the second case in this Province where husbands have been charged for sexual touching. She asked the Court to impose an appropriate penalty. 

Pre-Sentence Report

6. I appreciate the response by the leaders of the community where the prisoner and his wife come from. It is vital to have community input about what the relatives of affected parties think about what custom requires of them and what their communities think about the sin that has been committed. I have read the Pre-Sentence Report. Councillor Danly Joseph commented that the prisoner is a member of the Gaulim United Church. He says despite what the prisoner had done, he is a well respected person. He got a shock when he heard what the prisoner did to his wife. Councillor Danly had been the prisoner's guarantor since he was released on bail. He asked for leniency.

7. In case of the prisoner's wife, she raised concern that if the prisoner is sent to jail, she will suffer trying to provide for the children one of whom is currently doing her Grade 10 and as soon she will be preparing for her Grade 10 examinations. According to Serah, if the prisoner is sent to jail, it might disturb her education. She asked for K500.00 compensation. 

Application of Law

8. The maximum penalty under s.349(1)(a) of the Criminal Code Amended is five years imprisonment. The State invoked s.6A of the Act for breaching relationship of trust, authority and dependency. This is because the complainant is the wife of the prisoner. The earlier provision states:

 "SEXUAL ASSUALT.

(1)	A person who, without a person's consent – 

(a)	touches, with any part of his body, the sexual parts of that other person; or

(b)	compels another person to touch, with any part of his body, the sexual parts of the accused person's own body,

is guilty of a crime of sexual assault.

Penalty: Subject to Subsection (4), imprisonment for a term not exceeding five years."

9. If or where an offence is committed with circumstances of aggravation, Subsection (4) of the above Section states that an offender is liable to the maximum penalty of 10 years imprisonment.

10. The theme about sexual abuse of our women and young girls has been adequately addressed by the Parliament when it passed the Criminal Code (Sexual Offences and Crimes Against Children) Act of 2002 Amended. The Act provides for all forms of sexual abuse including sexual touching, sexual penetration, indecent acts directed at a child, persistent sexual abuse and even "child prostitution" and "child pornography". Today we read and hear on the news that, the parliament is intending to increase penalties for sexual offences. The offence of rape is already punishable by life imprisonment. It is likely other similar offences will receive higher penalties. There is international outcry about the offence of rape. This shows how serious sexual offences are. 
 
11. What aggravates this case is that, the prisoner is married to the complainant. Where is the respect due to the victim as his wife? If the prisoner suspected his wife of having an affair with another man, why not settle amicably rather than attacking the victim's private person, the private part that that is usually shared between him and the victim during acts of sexual intimacy. Under s.6A (2) (b) of the Act, the victim in is under the care and custody of the prisoner. 

12. The sentencing trend by the National Court on sexual touching on the recent past has fluctuated from terms of imprisonment to wholly suspended sentences. I cite a few cases to illustrate that point. But most case involved underage victims or young women. I wish to cite a number of cases which facts are totally different from the instant case, but where offenders had been charged with sexual touching. 

13. For instance, in The State-v-Thomas Tukaliu (2006) N3026, the prisoner pleaded guilty to two counts of sexual touching of a 10 years old victim with aggravations of an existing relationship of trust, authority and dependency. He had on previous occasions sexually touched the victim many times. He was sentenced to 5 years imprisonment. Three years were suspended with conditions. He only served 2 years.

14. In The State-v-Paul Nelson (2005) N2844, the offender was at the age of 65 years. He was sentenced to 3 years for a similar offence. Two years were suspended with conditions. There was no existing relationship of trust and dependency and it was an isolated incident. In The State-v-William Patangala (2006) N3027, the prisoner pleaded guilty to one count of sexual touching aggravated by an existing relationship of trust authority and dependency. It was an isolated incident. He was sentenced to 4 years imprisonment with 3 years suspended on conditions. 

15. In The State-v-Kagewa Tenant (2005) N2941, the prisoner was charged with one count of sexual touching of the victim who was under the age of 12 years. The prisoner in that case attempted penetration a number of times. He was sentenced to 6 years imprisonment with 2 years suspended on conditions. 

16. This Court is very concern about the level of sexual abuse cases in this Province.
 
 17. In The State-v-Penias Mokei (No.2) (26.8.04) N2635 Cannings, J. set out certain considerations which should be considered as a guide to sentencing offenders on charges of sexual abuse under the Act. I have covered some of those factors in this discussion. One of the relevant considerations which His Honour made in that judgment is "the level of breach of trust". If the relationship of trust between the accused and the victim is very close, the more serious the betrayal of trust becomes and the higher the penalty should be.

18. Cases cited by Mr. Waffi such as The State-v-Marcus Yame (2010) N4131 or the case of The State-v-Mark Samuel Haupas (2007) or even that of The State-v-Hillary Laris (2009) N3724, or that of The State-v-Ima Esiko (2009) were cases involving different persons which in my view totally different from the facts of this case where the victim is the wife of the prisoner. 

19. It is not fair for a person like you to treat your own wife life what you did to her. Your wife is the person who can support you when you are in trouble or sickness. She can support you when you are in the mood of sexual pleasure and at least you share the same house and same bed. Why not talk over the issue with your wife in privacy. 

20. As Mrs. Cherake rightly submitted, this case would the second case in this Province which involves the husband and wife in sexual assault. The other case involves a couple from Watom Island also a sexual offence.

21. The case of Maima-v-Sma [1972] PNGLR 49 and that of John Elipa Kalabus-v-The State [1989] 195 stand for the principle that the maximum penalty ought to be reserve for the worse case of a particular crime. On the instant case, I am of the view that, the Court should not impose the maximum penalty as this is not the worse type case. 

22. I have considered the prisoner's guilty plea and his statement on allocutus. I have considered counsels' submission on sentence and the terms of the PSR and the MAR. I consider that the prisoner be given a suspended sentence because of the special nature of the instant case. Almost all cases that the Court has referred to above concern close relatives in the sense of biological relationship. On the instant case, it concerns the wife of the prisoner whom he shares intimate relationship with her.

23. In criminal law a husband can also be charged for rape of his wife. As in the circumstances of the current case, the wife now begs for mercy. The issue arises is why did she report to the village elders then on to the police? People must know and in context of husbands and wives, the caters for everyone even spouses who commit breaches against their own partners. 

24. That is to say, whenever the two (prisoner and his wife) decide to have sex, they can do whatever they like. There is a saying, "intimate relationship knows no bounds". However such love ought to be kept within its bounds so that, there is no spill-over in the sense of physical harm caused to the persons of each other. I consider that the appropriate sentence for this offence should be 3 years imprisonment. The sentence is fully suspended on the following conditions:

1.	Shall keep the peace and be of good behavior for 12 months.
2.	The prisoner shall pay compensation to the victim in the sum of K500.00.
3.	His bail of K400.00 is converted to be part payment of the above order.

_________________________________________________________
The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused