N6913

PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1447 OF 2014

THE STATE

V

BEMU KAYAS
Prisoner

Kainantu: Polume-Kiele, J
2015: 3, 18 & 19 November
2016: 29 February; 11 March 

CRIMINAL LAW - Sentence – Sexual Touching of a child under the age of 16 years, Criminal Code, s 229B (1) (a) (4) - Plea – Guilty – Offender (17 years old) - Early guilty plea – Cooperation with police

CRIMINAL LAW: Sentence – Compensation – Not beneficial to victim - Inappropriate and repugnant where victim is of tender age – Criminal Code Ch. 262, s 229B (1) (a) (4). 
	
CRIMINAL LAW- Sentence – 7 years imprisonment imposed – less period of 1 year 3 months 12 days deducted – to serve 5 years 8 months 18 days sentence in custody - None of the sentence is suspended

Brief Facts:

Between the 31st of August 2014 and the 1st of September 2014 at the Lutheran Church area at Tiunka Village, the victim and other youths and school children were camping out. The accused was one of those youths who were out camping and they were all asleep in one house. During the night between 10 pm and 6 am on this date, the accused for sexual purposes with his penis touch the vagina, of one Nisa Nason, a female child under the age of 12 years then aged 6 years. He was caught by other children after the victim called out. The victim reported the matter to her parents and the accused was arrested and charged.  The State alleged that the actions of the accused contravenes s 229B (1) (a) (4) of the Criminal Code, an offence which attracts a maximum penalty of imprisonment not exceeding 12 years.

Held:

(1)	The range of sentences determined in relation to sexual touching of a child under 12 years old varied depending on the given facts and circumstances of a case. 

(2)	In considering what is an appropriate sentence to be imposed in the light of the present case, this court will give due consideration to circumstances where aggravating facts exist such as:

(i)	Use of lethal weapon such as a bush knife or axe on an unarmed victim;

(ii)	Offender is in a position of trust;

(iii)	The offender inflicts physical violence on the victim;

(iv)	Where there is pre-planning; 
  
(3)	The prisoner’s mitigating factors are: he pleaded guilty early, he is a first time offender, cooperated with the police and is remorseful.

(4)	The aggravating factors against the prisoner are that he is in a position of trust and there is an element of pre-planning and prevalence of offence.

(5)	Sentenced to 7 years imprisonment, less period of 1 year 3 months 12 days that the prisoner has been held in custody. None of the sentence is suspended.

Cases Cited:

Avia Aihi v The State (No.3) [1983] PNGLR 93
Golu v the State [1979] PNGLR 653
Public Prosecutor –v- Tardrew [1986] PNGLR 91)
Public Prosecutor -v- Don Hale (1998) SC564 
SCR No. 1 of 1984: Re Maximum Penalty PNGLR 418
The State v Thomas Manasi; CR No. 661 of 2011 (unnumbered and unreported judgement dated 9th of August 2013)
The State v Tala John (2012) N 4630
The State v Patrick Mova (2011) N4523
The State v Nelson [2005] PGNC 113; N2844
The State v Tukaliu [2006] PGNC 43, N3026 (22 February 2006)
The State v Meki [2006] PGNC 169, N3391) (15 November 2006)
The State v Albert Kavena (CR No.1444 of 2014) (21 September 2015) (Unreported)
The State v Epo Matao (CR NO. 168 OF 2015) (21 of September 2015) Unreported
Ure Hane v the State [1984] PNGLR 105

Counsel:

Ms B Gore, for the State
Mr S Ifina, for the State

JUDGMENT ON SENTENCE

11th March, 2016

1.	POLUME-KIELE J – The prisoner, Bemu Kayas was charged on an indictment with one count of sexual touching contrary to s 229B (1) (a) (4) of the Criminal Code; an offence which he had entered a plea of guilty upon arraignment. It appears from the evidence in the Kainantu District Court Committal depositions that the prisoner for sexual purposes with his penis touched the vagina of one Nisa Naso, a female child under the age of 12 years then aged 6 years old contrary to s 229B (1) (a) (4) of the Criminal Code. This offence attracts a maximum penalty, of 12 years imprisonment.

229B. Sexual touching.

(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)...

(3)...

(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.

Committal Court Disposition

2.	The Committal Court Disposition presented at the Kainantu District Court alleged the particulars of the offence as follows:  Between the 31st of August 2014 and the 1st of September 2014 at the Lutheran Church area at Tiunka Village, between 10 pm and 6 am on this date, the accused for sexual purposes with his penis touch the vagina, of one Nisa Nason, a female child under the age of 12 years then aged 6 years contrary to s 229B (1) (a) (4) of the Criminal Code

3.	The State did not call any oral evidence to substantiate its allegations against the prisoner. However, the State relied on documentary evidence which comprised mainly of statements from the witnesses including the victim and the Police Record of Interview which were contained in the Kainantu District Court Deposition that had been tendered into evidence by consent. These are:

(a)	The Confessional Statement of Bemu Kayas dated 11th September 2014 and the Record of Interview comprised both the original Pidgin and English Version dated 19th September 2014 which was marked as Exhibit "A" relating to the offence of sexual touching whereby the prisoner Bemu Kayas denied the charge. However, the prisoner has since changed his plea to guilty.

(b)	The Statements of State witnesses namely Nisa Nason who is the complainant in this matter dated the 1st of September 2014, including the statements of Eli Wapi dated 8th of September 2014 and Bathshiba Nason dated 1st of September 2014. Bathshiba Nason is the mother of the Complainant and she stated that she is the biological mother of Nisa Nason who was born on the 2nd of January 2008 at Barola House Mama and is her first female child which is confirmed by the statement of Danny Nason dated the 5th of September 2014 who is the father of the complainant. 

(c)	All these statements respectively confirmed the identity of the accused and the circumstances and his demeanour at the time of the commission of the offence including the interrogation and the laying of the charge against the prisoner.

4.	Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted. The prisoner was convicted on the charge of sexual touching under s 299B (1) (a) (4) of the Criminal Code Act (Ch No 262).

Antecedent Report

5.	The antecedent report presented disclosed that there is no prior conviction against the prisoner that that he is are a first time offender; aged about 17 years and is from Tiunka Village, Eastern Highlands. He is educated up to Grade 6. 

Pre-Trial Detention

6.	The prisoner was committed to stand trial on the 27th of November 2014. He has been held in custody for a period of 1 year 3 months 12 days to the date of this ruling on sentence.

Allocutus

7.	When administering the allocutus, you were asked if you had anything to say on penalty. You stated that you wished to speak to the Court on the issue of penalty. You were then given the opportunity to speak and in your statement on penalty, you said that you were sorry for what you did. You apologised to the court and court staff and all those people present in the court room for what you had done. In addition, you asked for leniency from the Court and that you asked this Court that you be placed on probation.  

Pre-Sentence Report

8.	Because you had asked to be placed on probation and to pay compensation, your lawyer, Mr Ifina requested that this Court direct the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report and a Means Assessment Report for purposes of assessing your suitability as a candidate for supervisory probationary orders and capacity to make compensation payments if so ordered and also to assist this Court determine penalty. This process is now a necessary component of the Court process where prisoners have exercised their right to ask the Court to be placed on probation (given the principles established in the case of Public Prosecutor -v- Don Hale (1998) SC564 . To facilitate this process, this Court had directed the Probations Officer, (Kainantu) to prepare and file a Pre-Sentence Report and Means Assessment Report which was compiled and filed prior to the 16th of November 2015.  These Reports were promptly provided by the Probation Officer.  

9.	According to the Pre- Sentence Report, you have three brothers and two sisters. You are the last child in the family. You are educated up to 6 at Kainantu Primary School.  All your other siblings including your parents are all living in Tiunka Village. You were unemployed and depend entirely on your parents for financial support.  With regard to the issue of payment of compensation, your relatives have indicated that they will pay compensation in the sum of K1, 000.00, 1 carton of lamp flaps and garden crops to say sorry to the victim and her family and to reconcile with the victims whatever the outcome of this proceeding. 

10.	This Court also notes your relatives however has asked that the court give them a grace period of three months to pay compensation. Aside from your relatives’ commitment to making reconciliatory matters with the victim and her family; the community was also consulted as to your suitability for supervisory probationary orders and the community hold the view that payment of compensation is necessary for purposes of reconciliation with the victims and encourage the payment of compensation to the victim and her family.  Overall, the Pre-Sentence Report compiled by the Probation Officer, recommended that you are a suitable candidate to be placed on Probationary supervision with certain terms and conditions and these are:

(1)	You be placed on 100 hours at the Community Work to be supervised by the CBC Office, Kainantu; 

(2)	The time frame of 3 months should be given to the offender to pay compensation and reconcile with the victim’s relatives;

(3)	If the court pleases no custody sentence should be imposed to the offender;

(4)	The offender shall not change his address or move to other Province until the completion of your Probationary Supervision Orders.

Mitigating Factors

11.	The relevant mitigating factors in your favour are your early plea which has resulted in saving Court’s time and State’s expenses which has resulted in this early outcome. In addition, this Court also noted that you are a first time offender and that you have co-operated well with the police including your explanation relating to the offence as recorded in the Record of Interview. 

Aggravating Factors

12.	The aggravating factors against you are that you engaged in acts of sexual touching with the victim on between 31st August 2014 and 1st September 2014 at Tiunka. At the time that you engaged in this acts, you and the victim was under the age of 12 years old, this is an offence contrary to s 229B (1) (a) (4) of the Criminal Code. This type of offence is prevalent; an offence for which you have to face the consequences of your actions.

Relevant Law

Elements of the Offence - s 229B (1) (a) (4) - Criminal Code

13.	In order to substantiate the charge of sexual touching, the elements of the offence must be established by evidence under s229B (1) (a) (4) of the Criminal Code. In that the State must prove the following:

 (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)...

(3)...

(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) …..

14.	In this present case, the State relied on the oral statements of witnesses and the Police Record of Interview as evidence to corroborate the charge of sexual touching which had been tendered into evidence by consent to substantiate the allegations. The witnesses’ statements clearly showed that an act of sexual touching of a child namely Nisa Nason who was under the age of 12 years, then aged 6 years old had occurred. Although initially the offender had denied the charge, he had since changed his plea and has now pleaded guilty to the charge.  

Submission on Sentence

15.	Mr Ifina on behalf of the prisoner submitted that although the prisoner had pleaded guilty upon indictment to the charge of one count of sexual touching, and offence for which the maximum penalty prescribed under s 229B (1) (a) (4) of the Criminal Code Act (Ch No 262) subject to Subsection (4) imprisonment for a term not exceeding 12 years. He submitted that this is not the worst type case of sexual touching and said that this case should be considered on its own set of facts and merits and referred to SCR No. 1 of 1984: Re Maximum Penalty PNGLR 418; Avia Aihi v the State [1982] PNGLR 92, Golu v the State [1979] PNGLR 653 and Ure Hane v the State [1984] PNGLR 105 in support of his submission. He submitted further that by operation of s 19 of the Criminal Code, the Courts have wide discretion under s 19 of the Criminal Code to impose a lesser penalty and on that basis, this exercise of powers gives this Court wide discretion in making the maximum sentence discretionary. A number of case authorities were also referred to in support of his submission on sentence and some of these case authorities are referred to in this judgment.

16.	Mr Ifina also urged this Court to also consider other factors in its determination of penalty which include the fact that the prisoner had pleaded guilty early saving court time and expenses to the State including his cooperation with the police, the offence was committed alone, he is a first time offender with no prior convictions and that he is a youthful offender and that there were no threats or inducement of any form or manner used in the commission of the crime.  He is remorseful and has apologised for his behaviour to this Court, the victim and her relatives and their community of Tiunka Village.

17.	Mr Ifina submitted that this Court in the exercise of its discretion impose a prison term of between 2 to 3 years and further suspend half of the imprisonment term with conditions that the offender compensate the victim and her relatives K1000 in cash  including food stuff to the victim and her relatives within 3 months.

18.	Ms Gore for the State; in reply, submitted that the offence of sexual touching is a serious crime which is committed on young child of tender age, a crime that must be dealt with appropriately as it would have a lasting effect on the young child who was only 6 years old at the relevant time. This type of offence is prevalent. Ms Gore impressed upon this Court that such offence should not be allowed to go unpunished. There is an increase trench relating to offences relating to the abuse of vulnerable and innocent young girls of tender years and this Court should impose a custodial sentence as this would be seen as having a deterrent effect on offenders from re-offending and to others from committing such offences. 

19.	In addition, Ms Gore submitted that whilst the prisoner has stated that he is willing to pay compensation, there is really no genuine attempt or efforts made to do so nor there being any serious attempt made to reconcile or to pay compensation to the victim and her family. Furthermore, other factors which should be taken into account include the fact that there is age difference of the prisoner and the victim which is about 11 years. That is the prisoner is 17 years and the victim then 6 years old.  

20.	With regard to sentence, Ms Gore submitted that this Court has wide discretion under s 19 of the Criminal Code to impose an appropriate penalty; including discretion to also impose conditions as to the payment of compensation and to reconcile and make peace with the victims and their family. Overall, Ms Gore submitted that there was an age difference of 11 years between the prisoner and the victim. This type offence is also becoming prevalent and a deterrent sentence must be imposed to protect vulnerable children despite a favour PSR. She submitted that the Court exercise discretion to impose a custodial sentence of 5 to 7 years as a deterrent factor.

Determination of sentencing criteria 

21.	The issue before the court is whether the prisoner should be sentenced according to the penalties prescribed under s 229B (1) a) (4) of the Criminal Code Act (Ch No 262)?  The maximum penalty, however, is always reserved for the worst offences and every case is different and therefore when determining the issue of a sentence; this would very much depend on the circumstances of each case ((SCR No. 1 of 1984 (supra), Golu Golu –v- The State (supra), Avia Aihi –v- The State (No3) (supra), Ure Hane v the State (supra)). In applying these principles to this present case, it will be necessary to decide or determine an appropriate sentence to be imposed and to also determine whether the offence for which you are charged warrants the imposition of the maximum penalty. If so, then this will result in the maximum penalty being imposed on you; if not, then this would result in the imposition of a lesser penalty being imposed. Furthermore, under s 19 of the Criminal Code, the Court has a very wide discretion to impose lesser sentence. 

Application of consideration

22.	Overall, the Pre-Sentence Report compiled by the Probation Officer, recommended that you are a suitable candidate to be placed on Probationary supervision with certain terms. The relevant mitigating factors in your favour are your early plea which has resulted in saving Court’s time and State’s expenses which has resulted in this early outcome. In addition, this Court also noted that you are a youthful and first time offender and that you have co-operated well with the police including your explanation relating to the offence as recorded in the Record of Interview. The aggravating factors against you are that you engage in acts of sexual touching with the victim on the 31st August 2014 and 1st September 2014 which took place during a church camping activity in your Village and fellow youths from your area. At the time that you engaged in this acts, it appeared that being involved in religious activities and your Christian faith and believe was not even taken into consideration. Instead you conducted yourself in such a manner that resulted in a young female child then aged 6 years being sexually assaulted and by doing so, you have broken a law of this country. This type of offence is prevalent; an offence for which you have to face the consequences of your actions. 

23.	Because of an increase in sexual abuse of children. Parliament had to bring about changes to the Criminal Code by enacting the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 and the introduction of the offence of sexual touching among other offences. Parliament also recognized that most of the abuse arose in family setting or in situations where offenders stood in position, of trust, authority and dependency towards their victims and therefore provided that these be visited upon by stiffer penalties as circumstances of aggravation.

24.	The Courts are therefore duty bound to respond appropriately by giving effect to the clear intentions of Parliament. Sentences have to be appropriately high not only to punish offenders but importantly to deter them and others from indulging in this demoralizing activity towards our vulnerable children (irrespective of their relationship). Society has a duty to protect a vulnerable and innocent child from abusive sexual predators. And where it is warranted offenders should be kept away from their victims and others. 

25.	In order to determine the issue of penalty, a few cases (including cases involving offenders in existing relationship of trust authority and dependency) for purposes of assisting this court arrive at an appropriate as this Court is of the view that the circumstances upon which and where this incident occurred called for a higher level of responsibility due to our religious believe and moral obligations to our own kind irrespective of kinship. I outline these cases including others of relevance below.

26.	In the State v Nelson [2005] PGNC 113; N2844, the prisoner pleaded to the charge of sexual touching. The accused who was 65 years old then was at his house in Kimbe when a girl then aged 12 years who was known to him came inside his house. He then touched her vagina with his fingers, for sexual purposes. After considering both the mitigating and aggravating factors, The Court in this case imposed a penalty of 3 years imprisonment, suspended 2 years of the sentence with the balance of 1 year to be served in custody.

27.	In the State v Tukaliu [2006] PGNC 43, N3026 (22 February 2006), the prisoner pleaded guilty to two counts of sexual touching on the victim’s vagina who was aged 10 at the time. On both occasions, they were aggravated by an existing relationship of trust, authority and dependency. The court after considering the circumstances giving raise to the offence, imposed 5 years imprisonment, suspended  3 years of this sentence with the balance of 2 years to be served in custody.

28.	In the State v Meki [2006] PGNC 169, N3391) (15 November 2006), the prisoner used his index finger to sexually touch the victim’s vagina causing it to bleed. The prisoner was 18 years old and the victim was then 6 years old at the time of the offence. The court in that case considered both the mitigating and aggravating factors of the offence and imposed a penalty of 1 year 9 months 1 week imprisonment. None of the sentence was suspended.

29.	In the State v Tala John [2012] N 4630. The prisoner there pleaded guilty to one count of sexually touching his biological daughter. She was 10 years old and he was 35years old. He had left his room and entered his children's room, removed his daughter's clothes and rubbed her vagina with his fingers in breach of a relationship of trust. He didn't express any remorse however the court held that the factors in mitigation and those in aggravation were equal so he sentenced the prisoner to 6 years imprisonment.

30.	In The State v Thomas Manasi, CR No. 661 of 2011 (unnumbered and unreported judgment dated 9th of August 2013), the prisoner was a 75 year old prisoner. He was charged with two counts of sexual touching. The prisoner had called two girls then aged 9 and 6 years, who were his classificatory grand-daughters to his room. He removed their clothes and touched their vaginas. The prisoner was remorseful and had reconciled with the girls, and their family. The prisoner was sentenced to 3 years each for two counts of sexual touching. Because of his advanced age and other mitigating factors in his favour, the sentence of 6 years was wholly suspended with strict terms.

31.	In the case of The State –v- Patrick Mova [2011] N4523. The prisoner was indicted for one count of sexually touching the victim aged 4 years with his tongue. He initially denied the charge but then changed his plea to guilty after the State closed its case. The prisoner was an uncle of the child. The court in that case sentenced him to 5 years imprisonment.

32.	I now turn to the charge against you and to determine an appropriate penalty. To do so, I will evaluate the mitigating factors that go in your favour.

1.	You pleaded guilty early to the charge;

2.	You are a first time offender, with no prior convictions

3.	You are a young offender; aged 17 years at the time of the offence;

4.	You committed the offence alone, not in a group;

5.	You co-operated very early with the police;

6.	You are not a blood related to the victim (the District Court Disposition disclosed otherwise)

7.	You are willing to pay K1000 compensation plus food stuff to the victim and her relatives

33.	The aggravating factors, however are:

a.	There is a big age difference between you and the child, who was only 6 years old. An age difference of 11 years.

b.	This offence is also becoming very prevalent.

34.	While the mitigating factors outweigh the aggravating factors; these factors do not in any way diminish the gravity of the offence. Irrespective of whether you stand in a position of trust, authority and dependency, there is a moral duty placed on all humans to protect young vulnerable children of tender age as a responsible and God abiding citizen. Furthermore, due to the big age difference, I see that these factors outweigh any factor that called for leniency within bounds of reason and principle. 

35.	The maximum penalty here is 12 years and for an offence such as yours where the circumstances of aggravation provided under Subsections (4) of Section 229B is present then the head sentence is fix at 7 years imprisonment. The mitigating factors do not have any effect in setting the head sentence too much below that or at all given the reasons stated above; there is a duty on this Court to ensure that any punishment imposed must be seen as a deterrent so that offenders are deterred from re-offending and that others are deterred from committing such offence, whether these victims are any young child or daughters, nieces or granddaughters.  This offence and other offences against children by men (young and old) are on the increase. It therefore calls for tough sentences to be imposed to curtail such offences due to its prevalence. I therefore sentence you to 7 years imprisonment. 

The next question is “Should all or part of the head sentence be suspended?

36.	Counsel for the prisoner submitted that this Court suspension of the sentence either partly or wholly after passing sentence. Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report as held in the case of the Public Prosecutor –v- Done Hale (1998) SC 564).  This court notes that the prisoner is 17 years old. Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships (Public Prosecutor –v- Tardrew [1986] PNGLR 91). For your case, the PSR favourable. Whilst this court agrees that some form of punishment be imposed as a deterrent factor, there is also a necessity to encourage reconciliation and peace between the parties. This will be seen as a reinforcement of the prisoner’s genuineness of being remorseful.  

37.	This court’s approach (my view) as expressed in the case of the State v Albert Kavena (CR No.1444 of 2014) (21 September 2015) (Unreported); I echoed the sentiments that “the traditional form of compensation payment is important to maintaining peace and harmony within families, communities and the public at large. This is a gesture that should be voluntary and not Court ordered.  It indicates a genuine show of remorse for the harm occasioned on a victim” and similarly in the State v Epo Matao (CR NO. 168 OF 2015) (21 of September 2015) Unreported which also reinforced the view that “payment of compensation is a means through which an accused or offender says ‘sorry’ to the victims and their families. This act of goodwill must be done voluntarily (‘willingly’) by the offenders/accused”. However this Court is also aware that payment of compensations is also dependent on the circumstances of each and every particular case.

38.	A number of factors will have to be taken into account and these relate to the mitigating and aggravating factors that either go in your favour or against you. Furthermore, the payment of compensation in this case would not in any way, compensate for the trauma that the young victim has endured. Besides, even when these parties are not closely relatives, it appeared that no genuine attempts have been made by parties to reconcile nor express genuine and real remorse for the crime perpetrated on the young child. As I have already expressed in a recent judgment on the State v Albert Kavena (supra), “…payment of compensation should be an expression of genuine remorse and should be voluntary; not court ordered…”

39.	While compensation has its benefits, for sexual offences against victims of tender age; compensation will not benefit her personally and therefore totally appropriate if not repugnant. Secondly, offenders like you should not think that such an abhorrent act and its psychological effects of child victims can be vitiated and mitigated by the payment of compensation. However, if you wish to reconcile with the victim’s family; this is a matter between you and members of the victim’s family. This Court need not tell you what to do. 

40.	By reasons of all the matters discussed above, I sentence you to 7 years imprisonment less the period of 1 year 3 months 12 days that you have been held in custody (s 3 (2) of the Criminal Justice (Sentences) Act 1986); the balance of the term of sentence of 5 years 8 months 18 days imprisonment to be served in custody at CIS, Bihute.

41.	None of the sentence is suspended.

Orders accordingly,

________________________________________________________________
Public Prosecutor: 	Lawyer for State
Public Solicitor: 	Lawyer for Prisoner