N6302
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1033 OF 2015

BETWEEN:

THE STATE 

AND:
CHARLIE EMBERE      
Offender 

Popondetta: Davani J
2016:  09th, 20th, 21st May

Counsels:

Mr D. Kuvi, for the State 
Mr F. Kirriwom, for the Offender 

				          SENTENCE
21st May, 2016

1.	DAVANI J; On 9th May, 2016, the State tendered an Indictment alleging that Charlie Embere (the ‘Offender’), had sexually touched the victim, ML (the ‘Victim’), a female child, on 14th February, 2015, at Kendasusu village, Oro Province, in breach of s. 229B (1) (a) of the Criminal Code, as amended.  At that time, the Victim was aged 12 years. The Offender was aged 22 years old.
S.229B (1) (a) reads;
(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 is or her body, the sexual parts of the accused person’s own body,
On arraignment, the Offender pleaded guilty.
Penalty: Subject to Subsection (4) and (5), imprisonment for a term not                exceeding seven years.
(2)	For the purposes of this section, “sexual parts” including the genital area, groin, buttocks or breast of a person
Facts 
2.	The facts the Offender pleaded guilty to are that on 14th February, 2015, the Victim met the Offender when she was on her way to the garden. It was then that the Offender asked the Victim to accompany him to collect mustard, however, on the way, he pushed the Victim to the ground and went on top of her. He covered the Victims mouth then removed her panties. He attempted to insert his penis into her vagina but was not able to because the Victim was hysterical and constantly moving. The Offender was disturbed by another young man which prompted him to get up and run off.
3.	The Victim ran off to her house and told her parents who then reported the matter to the police. The Offender was later arrested, charged and remanded in custody.
4.	The Victim is related to the Offender and they are both from Kendasusu village, Kokoda LLG in the Oro Province. 
Aggravating factors 
5.	The medical report prepared by Health Extension Officer Ms F. Tumbari of the Kokoda Health Centre, dated 16th February, 2015, describes the injuries as;
•	“Both Labia Majora slightly swollen and red.
•	Clear sticky mucous was seen around the vaginal hole.
•	The Hymen was slightly open but not torn and looks inflamed.
•	There were two tears on the left Labia Minora.
•	No active bleeding seen”.

6.	The medical report states further that the Victim will be traumatised by the Offender’s actions and will be ashamed to be with her peers which can lead to mental disorder. 
Mitigating factors
7.	The mitigating factors are;
•	The Offenders guilty plea which saved the State a lot of time and money 
and the Victim the embarrassment of having to give evidence in open court.

•	The Offender’s admissions in the Record of interview with the Police.

•	He is a first time, young offender.

•	His expressions of remorse on allocatus.

Analysis of evidence and the law
8.	Both counsel made very helpful submissions in relation to both the law and the facts. I set out some of these cases below.
1.	The State v Tukaliu (2006) N3026
The prisoner pleaded guilty to 2 counts of sexual touching. The victim is his eldest daughter. He was aged 25 and the victim, 10. The court noted that there was an existing relationship of trust, authority and dependency. 
The court sentenced the prisoner to 5 years in hard labour. It suspended 3 years and the balance of 2 years to be served.  
2.	The State v Nelson (2005) N2844
The prisoner pleaded guilty to sexual touching. He had touched the victim on her breasts and genitalia. He was aged 68 whilst the victim was aged 12. There was a lack of consent. He was a first time offender.
The court sentenced the prisoner to 3 years in hard labour. 2 years of that sentence was suspended and the prisoner was directed to pay compensation to the victim’s school. He was ordered to serve 1 year of that sentence.
3.	The State v Titus Ukil (2016) N6195
On a guilty plea to sexual touching, more akin to sexual penetration with fingers, the court sentenced the prisoner to 4 years and 6 months. None of the head term was suspended.
The prisoner in that case was aged 36 and the victim, aged 3.
4.	The State v Ape Handrella (No.2)(2016) N6196
In that case, the prisoner was charged with sexual touching, having touched the victims genitalia. He was aged between 60   and 70 and the victim was aged 5. Upon medical examination, her genitalia was found to be swollen. 
After a trial, he was sentenced to 3 years in hard labour. The 22 months in custody was deducted. The sentence was wholly suspended and he was placed on good behaviour for 24 months. He was also ordered to pay K500.00 compensation.

5.	The State v Kagewa Tanang (2005) N2941
The prisoner touched the victim’s genitalia, then attempted to penetrate her. He could not so he rubbed his penis on her genitalia.  The prisoner was aged 41 and was the victim’s uncle. She was aged 12.  
On a guilty plea, he was sentenced to 6 years.
6.	The State v Sailor Peter Tatanu (2006) N3392
The victim in this case was 8 years old. The prisoner, her cousin, took over babysitting chores and in the process, took the victim to the bedroom where he sexually penetrated the victim. After plea bargaining, the charge was reduced to sexual touching.
The prisoner was aged 17 years. He was sentenced to 6 years.

9.	Defence counsel has urged me to consider the fact that because the Offender is only 22 years old and that this is his first offence, that sending him to prison will only make him worse. He submits further that the court must consider seriously, the deterrent aspect of sentencing, and impose a non-custodial sentence. 
10.	The State however, submits that the court impose a custodial sentence because the offender did admit in his record of interview with the Police, that he sexually penetrated the Victim, however, because of plea bargaining, the charge was reduced. 
11.	In sexual offences, the court must also be wary of the fact that although deterrence is an aspect of sentencing that the courts must always be focussed on, experience in PNG has shown that despite the rhetorics by the courts in relation to deterrence and the eventual punishment being laid, sexual crimes, both heinous and simple, against women and children, have not been alleviated by this sentencing trend. Men and boys, continue to be the predators that they are and women and children, continue to live and walk in fear, always looking over their shoulders and always being insecure. That is the reality in present day PNG. That is the environment within which the courts in present day PNG, must exercise their constitutional function, to sentence and to sentence fairly. 
12.	So, in my view, each case must be gauged and weighed, based on its own peculiar set of circumstances, which is what I will do in this case. The cases that have been decided by the courts, should only be used as a guide, and I must admit, do play a very useful role in the sentencing process. I thank both counsels for their very able assistance in that regard.
13.	In this case, the Offender is related to the Victim. She trusted him, when she agreed to accompany him to get mustard in the bush. However, the Offender’s primal urges got the better of him, subjecting the Victim to a traumatising event, which will torment and haunt her for the rest of her life. 
14.	For the court to consider a non-custodial sentence and for there to be a suspended sentence, there must be a pre-sentence report before the court. (Acting Public prosecutor v Don Hale (1998) SC 564). And there must be a Means Assessment Report before orders for compensation can be made (State v Eddie John Naopa (2003) N2411).
15.	The pre-sentence report (‘PSR’) before me, portrays the Offender as a shy and withdrawn individual, who had very few friends and who always wanted to please his teacher by bringing her gifts.  He is from a broken family and was raised by his grandmother. As to how this situation has affected him psychologically, I do not know because I do not have the specialist evidence before me. But definitely, there has been some psychological impairment, which remains unknown. 
16.	I also heard in submissions that he was in grade 7 at Kokoda top up primary school when he committed the offence.
17.	The PSR states that the offender’s aunt Maryanne is worried about his education. The Victim’s mother wants the Offender to be punished and is of the view that the Offender may have learnt his lesson whilst in custody on remand for 1 and a half years. A ward councillor, a village chief, a teacher and an aunt, when interviewed, expressed their sympathies for the Offender and say also that he is an obedient boy. 
18.	The PSR recommends a non-custodial sentence, for the following reasons;
1.  That compensation be paid by the Offender, to enable reconciliation       between the families.
2.   That the Offender be allowed to return to school to complete his       education at Ilimo primary School, to avoid stigma and discrimination.
19.	I need not give consideration to the recommendations in the PSR, if the justice of the case does not warrant it (State v Bomai Hesi (No.2) 2007 N3232).
20.	I am also aware of the fact that since his arrest in early 2015, the Offender and his family have not taken any steps to reconcile with the Victim and her family, to appease the wrong done by the Offender. Clearly, the request to pay compensation is made very late in time and in my view, is not genuine. 
21.	Apart from that, the medical report shows the injuries suffered by the Victim in her genitalia, after the attack upon her by the Offender, to be serious injuries, an aggravating factor indeed. 
22.	Although Defence Counsel urges the court to accept that the aggravating factors are not as serious as the mitigating factors, I find that not to be the case.  Indeed, the aggravating factors seriously outweigh the mitigating factors. However, I do note that the Offenders guilty plea did save the State a lot in time and money and enabled the victims privacy in that she did not have to come to court to give evidence in public. 
23.	Considering all the evidence before me, the mitigating and aggravating factors including the PSR and the decided cases I refer to above, I am of the view that a custodial sentence must be imposed and which will be partially suspended. I say this because perpetrators of sexual offences must be punished unless the nature of the offence is not serious. And by being “not serious”, it means that the court must take note of the nature of the injuries suffered by the victim, the circumstances under which she was attacked and the offenders relationship with the victim. Definitely, a boyfriend/girlfriend relationship is not as aggravating as a family relationship of some sort.
24.	This court will impose a sentence of 4 years. 
25.	The term spent in custody on remand of 1 year 3 months will be deducted from the head sentence, leaving a balance of 2 years and 9 months.  
26.	Of the period of 2 years and 9 months, the Offender will serve 1 year and 9 months in hard labour. 
27.	The balance of 1 year will be suspended, upon the Offender entering into a recognizance without sureties, to keep the peace and be of good behaviour, after having served the 1 year 9 months term. 
28.	So ordered.
______________________________________________________
Public Prosecutors Office: Lawyer for the State
Public Solicitors Office: Lawyer for the Offender