N5837

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 610 OF 2014

THE STATE

V

DANIEL DATNAN

Madang: Cannings J
2014: 14 November, 5, 13 December

CRIMINAL LAW – sentence – sexual touching of child under the age of 16 years – Criminal Code, Section 229B – circumstances of aggravation – conviction after trial.

A 21-year-old man was convicted after trial of the offence of sexual touching of a child under the age of 16 years, in circumstances of aggravation in that the child was under the age of 12 years. The victim was a seven year old girl. This is the judgment on sentence.

Held:

(1)	The maximum sentence for sexual touching of a child under the age of 12 years is 12 years imprisonment.

(2)	Mitigating factors are: no aggravated physical violence; no prior convictions; an isolated incident; no sexually transmitted disease passed on to the victim; no further trouble caused.

(3)	There are no aggravating factors.

(4)	A sentence of five years was imposed, the pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following case is cited in the judgment:

The State v Stafford Hambo (2011) N4120

SENTENCE

This was a judgment on sentence for sexual touching of a child.

Counsel

F K Popeu, for the State
A Meten, for the offender

13th December, 2014 

1. CANNINGS J: Daniel Datnan was convicted after trial of one count of sexual touching of a child under the age of 16 years, in circumstances of aggravation in that the child, a seven-year-old girl, was under the age of 12 years. The offence was committed at Marawasa village in the Markham Valley area on 13 February 2014. He enticed the victim into a small house where he was alone with her, and lay on top of her and rubbed his penis against her vagina.

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 said:

I apologise for what I have done. The Court has found me guilty and I now ask for the mercy of the Court by putting me on probation.

PRE-SENTENCE REPORT

4. Daniel Datnan is aged 21 but the report prepared by the Madang branch of the Probation Service shows that little is known about him. He says he is from Alewak village and that he was visiting Marawasa at the time of the incident but this has not been confirmed. He says that he was employed by Ramu Sugar at the time but this too has not been confirmed. He was known to the child against whom he committed the offence and known to her family but they too were visitors to the village and the Probation Service has been unable to contact them.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mrs Meten highlighted that the offender has no prior convictions. He has also cooperated with the Police and the Court from the outset. No physical violence was involved. A sentence of no more than four years is warranted.

SUBMISSIONS BY THE STATE

6. Mr Popeu submitted that a deterrent sentence of more than four years was required. This is a prevalent case and there is no prospect of reconciliation, he emphasised.

DECISION MAKING PROCESS

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

•	step 1: what is the maximum penalty?
•	step 2: what is a proper starting point?
•	step 3: what sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. The indictment was presented under Section 229B (sexual touching) 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.

9. The circumstances of aggravation set out in Section 229B(4) were charged in the indictment and proven. 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 A PROPER STARTING POINT?

10. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a 'starting point' for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. The actual sentence imposed can be above, below or the same as the starting point depending on whether the aggravating factors outweigh the mitigating factors (resulting in a sentence above the starting point); the mitigating factors outweigh the aggravating factors (resulting in a sentence below the starting point); or the mitigating and aggravating factors are balanced (resulting in the starting point being the sentence). In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of six years as the starting point.

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

11. As I pointed out in The State v Stafford Hambo (2011) N4120 most sentences for adult offenders for the offence of sexual touching of a child have fallen within the range of three to six years depending on the circumstances of each case and whether the offender has pleaded guilty.

STEP 4: WHAT IS THE HEAD SENTENCE?

12. The head sentence will reflect the following mitigating and aggravating factors.

13. Mitigating factors:

•	no weapon or aggravated violence was used against the victim;
•	no sexually transmitted disease was passed on to the victim; 
•	it was an isolated incident; 
•	the offender cooperated with the Police and the courts;
•	he has caused no further trouble;
•	he is a first-time offender.

14. Aggravating factors:

•	nil.

15. There are more mitigating factors than aggravating factors so, despite the fact that the offender was convicted after trial, a sentence slightly below the starting point is warranted. I fix a head sentence of five years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. 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 ten months.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

17. No. There is no prospect of reconciliation or compensation. No good reason has been provided to suspend any part of the sentence.

SENTENCE

18. Daniel Datnan, having been convicted of one count 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 Section 229B(4) of the Criminal Code in that the child was under the age of 16 years, is sentenced as follows:

Length of sentence imposed	5 years	
Pre-sentence period to be deducted	10 months	
Resultant length of sentence to be served	4 years, 2 months	
Amount of sentence suspended	Nil	
Time to be served in custody	4 years, 2 months	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.
______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender