N6426
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 173 OF 2015

THE STATE

V
MALA  SILOWANA

Alotau:  Toliken, J
2016:  08th February
 And 18th May

CRIMINAL LAW – Sentence – Indecent act – Plea – Prisoner exposes penis to child – No physical contact – Likelihood of physical abuse considered – Grandfather/granddaughter relationship – Abuse of trust – Need for deterrence – Starting point 3 ½ years – Head  sentence 2 ½  years less pre-conviction custody period – Suspension on condition – Criminal Code Ch. 262; s 229 (1) (2).
 
Cases Cited:

The State v Mailai (2011) N4649
The State v Tap (2015) N6118

Counsel:

D Sopane,for the State.
P Palek, for the Prisoner.

SENTENCE

18thMay, 2016

1.	TOLIKEN, J:The prisoner, Mala Silowana, pleaded guilty on 8th February 2016 to one count of indecent act toward a child, an offence under Section 229C (1)(2) of the Criminal Code Ch. 262.

2.	I wasn’t able to pass sentence then, so I do so now.

3.	The brief facts in support of the charge are that on Tuesday 23rd September 2014, the prisoner took the complainant DM, a child under the age of 12 years, pretending to take her to the bus stop but instead led her to Mutuyuwa village.  He led her to nearby bushes at Mutuyuwa and removed the complainant’s clothes.  He then removed his own clothes, took out his penis and exposed it to the complainant.  The accused was caught in the act by a passer-bystander.

4.	The offence is punishable by imprisonment for a term not exceeding 7 years.  However, the maximum penalty is usually reserved for the worst offences.  Sentences also usually depend on the peculiar circumstances of each particular case.

5.	I must therefore decide firstly whether this is a worst case.  If it is not then I must determine an appropriate sentence for the prisoner and then decide if any part of such a sentence ought to be suspended.

6.	The prisoner is 54 years old and comes from Walaula village, Suau, Alotau District of Milne Bay.  He is married with three children.  He attends the COC Church and was educated up to Grade 10.  Prior to being granted bail, he spent 4 months and 11 days in custody.  He has no prior convictions.

7.	On his allocutus, the prisoner apologised to the victim and her family.  He said he was very sorry for his actions.  He said this is the first time for him to commit a crime against a child and promised never to re-offend.  He further said that he had reconciled with the victim’s family and relatives and had undertaken to pay them compensation.

8.	Ms. Kambua submitted on behalf of the prisoner that this was a case which only involved the prisoner pulling down his trousers and exposing his penis to the victim.  He did not touch the victim, did not use any threats of violence or use any offensive weapons on the victim, though, Counsel did concede that the victim was his daughter’s step-child, hence, he was like a grandfather to the child.  Therefore there was abused of trust. Ms. Kambua submitted further that there are several mitigation factors.  I will come to these later.

9.	Counsel also referred the Court to the prisoner’s Pre-Sentence Report which she said was well balanced, having incorporated the views of the prisoner himself and his relatives, and the victim’s relatives.  The Pre-Sentence Report reveals that the parties had reconciled during two reconciliation ceremonies held at Sibolai village, during the Christmas and New Year Period (2015).

11.	Ms. Kambua submitted therefore that an appropriate sentence should be in the range of 3 – 5 years which could then be fully suspended on condition.

12.	Ms. Roalakona for the State agreed that an appropriate sentence would be in the range suggested by Ms Kambua i.e. 3 – 5 years.  She, however, urged the Court to note the aggravating factors of this case which include a significant age difference of 45 years between the prisoner and the victim, that the prisoner lured victim to nearby bushes, breach of trust and the prevalence of offences against young children.

13.	So, is this a worst case of the offence under consideration?  This depends on the level of culpability of the prisoner and the harm he occasioned on the victim (if any) or harm which he ought to have foreseen as being occasioned on the victim.

14.	There was no physical harm occasioned on the victim.  However, the prisoner ought to have foreseen that in the state that he was in, sexually aroused – he would have ended up doing something much more serious to the victim than just exposing his penis to her.  He also was in a position of trust which he breached, so I would say that his degree of culpability or moral blame worthiness was quite high, but, not the worst.

15.	In case of indecent acts against children under 12 years, where there is in existence a position of trust, authority and dependency, the starting point should be at the mid range i.e. 3½ years.  I, therefore, set a starting point for the prisoner at 3½ years.

16.	What then should be an appropriate head sentence?

17.	To arrive at a sentence that is appropriate to the circumstances of this case, I need to consider the prisoner’s mitigating, as well as, his aggravating factors.

18.	I consider the following as mitigating the offence.

1.	The prisoner co-operated with the police by making early admissions.
2.	He pleaded guilty early, thus, saving the victim the trauma and shame of having to recall and relate her experience in Court had a trial been forced.

3.	He is a first time offender.
4.	He has expressed genuine remorse.
5.	And as an expression of his remorse, he has reconciled with the victim’s family and had offered to pay customary compensation which includes giving a piece of customary land to the victim’s family to settle on.

6.	This was also an isolated incident.

19.	There are, however, aggravating factors.  These are:-
1.	The prisoner lured the victim into the bushes and it is open to say that there was some pre-planning or careful thought involved here.

2.	There was huge age difference between the victim and the prisoner – 45 years.  The victim was 9 years.

3.	The victim was the step-daughter of the prisoner’s daughter, hence, he was like a grandfather to the victim.  The prisoner was, hence, in a position of trust, authority and dependency and he breached or abused that trust.

4.	Sexual abuse of children is a very prevalent offence and is increasing.

20.	Before I consider an appropriate sentence for the prisoner, I must say something about this offence and similar offences which were created by Parliament.  Sexual offences against children were created specifically to protect children from all sorts of abuse but more particularly sexual abuse.  Parliament responded to an increase in the incidence of these types of abuse against children, particularly girls.

21.	Children are the most vulnerable members of society.  They need to be protected, first, by their parents and other adult relatives and those whom they stand in position of trust, authority or dependency, and secondly by adults generally.  They need to be loved, nurtured and guided through their formative years, so that they can grow up into caring, loving, stable and responsible adults.

22.	Abuse of any sort, but more particularly sexual abuse, unfortunately does nothing of that to children, but turns them into emotional wrecks and often leads them down to the road of worthlessness and despondency.

23.	It is therefore important to discourage this abhorrent behaviour, so that adults – mostly men – are discouraged from seeing children, particularly girls, as mere objects for sexual gratification.

24.	Parliament has responded to this evil or scourge, so it is up to the courts to similarly respond by imposing appropriate sentences on sexual offenders, primarily to deter them personally but for general deterrence as well.

25.	So how have the Courts treated this type of offence?  Both lawyers have cited cases to me to assist me in arriving at an appropriate sentence.  However, all of those cases are not directly on point as they mostly involved some physical contact with the victims’ genitalia, which is not the case here.  Despite that, it is instructive to consider a couple of those cases to demonstrate the point that indecent acts against children falling short of penetration, is serious and must be visited upon with appropriate custodial sentences.

26.	 In The State v Mailai (2011) N4649, the victim and her brother were going to their mother in their garden when the offender called the victim from the bush and offered her bananas.  When the victim went to him, the offender instructed her to remove her clothes and lie down, which she did.  The offender then tried unsuccessfully to penetrate her vagina, desisting only when the victim’s mother called out to her. He was indicted for one count of indecent act. The offender pleaded guilty to the charge.  Despite some good mitigating factors, the trial judge (Batari, J.) commented that the current sentencing trend for similar offences was 3 – 5 years.  His Honour was of the view that a sentence in the mid range would be justified and sentenced the prisoner to 4 years imprisonment less time in custody.

27.	In The State v Tap (2015) N6118, the victim, aged 3 years, was alone in her house with her brother.  The offender came in and offered her sugar cane.  He took the victim into the house and removed her clothes.  He then proceeded to indecently deal with the victim by inserting his fingers into her vagina.  After that, he dressed the victim and came out of the house just as the victim’s mother was returning from the garden.  The mother noticed her daughter crying and, suspecting that something was wrong, took her to the nearby Health Centre for examination. Examination confirmed the incident act.

28.	The offender also pleaded guilty to one count of indecent act.  Despite the offender’s mitigating factors, the court (Makail, J.) compared this case with that of Mailai (supra) where the child was 11 years old.  His Honour said that the court must come down hard on sex offenders and a deterrent sentence was the only way to deter people like the offender, so that our children can grow up and walk around in our communities without being afraid of being sexually harassed or subjected to immoral acts.

29.	His Honour imposed a term of 3years and deducted the time spent in custody.  And taking into account concessions made by the victim’s family and the offender’s preparedness to pay compensation, His Honour suspended 1 year from the resultant with conditions.

30.	Turning back to the case at hand, I do acknowledge that the offender merely exposed his penis to the victim.  Could he have gone farther than that?  Of course he could have, had he not been disturbed by a passer-by.  And that was an event that the offender would reasonably have foreseen and it must followed that some serious injury could have been occasioned on the victim.

31.	But, despite the fact that there was no physical contact, the abuse of the child with whom the offender stood in a person of trust, is still a despicable act that must be punished because such indecent exposure will often lead to more serious abuse of children such as sexual touching and penetration.

32.	In the circumstance, I think that a head sentence should be below the starting of 3½ years, and, hence, below the sentences imposed in the cases cited above, which, in actual fact were cases of sexual touching and sexual penetration, but which for some reason were downgraded to charges of indecent acts instead.

33.	The offender has reconciled with the victim’s family and is prepared to pay compensation.  That I take into account and may justify some suspension.

34. 	An appropriate sentence in this case should therefore be 2½ years or 30 months.

35.	I, therefore, sentence the prisoner to 2½ years or 30 months imprisonment less the pre-conviction custody period of 4 months and 11 days.

36.	And as I said, the circumstances of this case warrant or justifies some or a whole suspension.  So, in exercise of my discretion, coupled with a very favourable pre-sentence report, I shall wholly suspend the result sentence and place the prisoner on probation for a period of 2 years with the following additional conditions:-

	1.	The prisoner shall not remain alone with any girl under the age of 16 years.

	2.	The prisoner shall pay customary compensation to the victim’s relatives within 3 months from today the details of which shall be furnished to the Court by the Probation Officer soon after the conclusion of the compensation ceremony.

37.	 I order accordingly and further order that the prisoner’s bail and sureties paid by his guarantors be refunded.

_____________________________________________________________
Public Prosecutor	: Lawyers for the State
Public Solicitor	:Lawyers for the Accused