N6309
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 783 OF 2015

THE STATE

V

NICHOLAS KIPAKPU

Wabag: Auka, AJ 
2016: 8th April & 9th May

CRIMINAL LAW -  Criminal Code – Section 229 B – Sentence - Guilty plea – Victim female under 16 years – Offender aged 41 – Single touch of vagina –No force or injury – Three years – Reduced by Pre-Trial custodial period and the remaining balance fully suspended on condition.

Case Cited:
The State v. George Philip (2012) N4829
The State v. Jack Andy (2012) N4779
The State v. Paul Nelson (2005) N2844
The State v. Penias Mokei (No.2) N2635

Counsel:
Mr. Joe Waine, for the State
Mr. Robert Bellie, for the Offender

DECISION

9th May, 2016 

1.	AUKA, AJ:		The prisoner pleaded guilty to one Count of Sexual Touching of TAPITA WAIS, a child under the age of 16 years with his hand. This is an offence Contrary to S. 229 B (1) (a) of the Criminal Code, (Sexual Offences and Crimes against Children) Act 2012. No relationship of trust authority or dependence was pleaded in the Indictment.  

2.	The facts on arraignment were that on 6th January, 2015 in the afternoon, the victim Tapita Wais was playing with her friends at her house at Kiwi Village. At that time accused approached them and asked them to follow him to the nearby bush. Whilst there he lured the victim away from the rest of the children and led her further into the bush. He then held the victim tight and put his hand down to the genital area of the victim and touched her vagina with his hand. The victim screamed for help and accused ran away. 

3.	On his allocatus, the prisoner said he touched part of victim’s vagina since the victim was wearing a tight trousers. He spent 1 year 2 months and some days in custody awaiting his trial. He is a TB patient and almost died but God saved him. His father died when he was in grade 2 that is 28 years ago. His mother is a disable woman and attends regular church services. He said sorry for the offence he committed and asked the Court to release him so that he can go and look after his mother. He asked the Court to have mercy on him.

4.	On mitigation, Mr. Bellie submitted that the prisoner is 41 years old from Kiwi Village, Wabag Enga Province. At the time of the offence was living in his village. He is married with three (3) children and two of his children are with his wife at Pogera. He is the fifth born in the family of six children. He has not received any formal education and employment.

5.	The offence was committed on 6th January, 2015 and he was arrested on 12th January, 2015. He has been in custody awaiting trial for one 1 year 2 months, 3 weeks and 4 days.

6.	Mr. Bellie urged the Court to take into account prisoner’s plea of guilty to the offence, his early admission to police during the investigation of the matter, his expression of remorse in Court, that victim suffered no injuries.

7.	Mr. Bellie referred the Court to the National Court decision in the case of The State v. Paul Nelson (2005) N2844, offender was 65 years old when the victim was 7 years old. The accused pleaded guilty to Sexual Touching and sentence of 3 years was imposed and 2 years suspended on Condition.

8.	Mr. Bellie urged the Court to impose 3 years and part of the Sentence suspended.

9.	For the prosecution, Ms Luben said that the accused should have known better that the victim was a young girl. The accused was 41 years and the girl was 12 years old and the age gap is great which is a aggravating factor to be considered against him. The offence is a prevalent offence throughout the country and that should be considered against the accused.

10.	Ms. Luben referred the court to the National Court cases of The State v. Jack Andy (2012) N4779. Accused pleaded guilty to Sexual Touching and Maliku AJ, sentenced him to 4 years but partly suspended 2 years on Condition. In the State v. George Philip (2012) N4829, the accused pleaded guilty to Sexual Touching of a 6 year old girl. There is an Age gap of 10 years. The offender was a Juvenile aged 16 years old. David J sentenced him to 5 years reduced by pre trial custody term to serve 3 years 11 months and 15 days. Ms. Luben submitted that sentence of 3 years with no suspension is appropriate in this case.

11.	The maximum penalty for Sexual Touching of a child under the age of 16 years under section 229B (1) (a) is 7 years. This is subject to Section 19 of the Criminal Code.

12.	It is established principle that the maximum penalty ought to be reserved for the worst type of case.

13.	There are certain considerations which should be considered as a guide to Sentencing offenders on charges of Sexual abuse under the Act. These conditions were set out by His Honour Justice Cannings in the case of The State v. Penias Mokei (No.2) (2004) N2635. I adopt the considerations and have applied the appropriate ones to the circumstances of the instant case.

14.	The aggravating factors are the victim was a young 12 years old girl. There is a great age gap of 36 years and the offence is a prevalent offence.

15.	I note the mitigating factors in this case are prisoner’s guilty plea, his expression of remorse in Court, no injuries suffered by the victim and accused have no prior conviction. I consider these factors in prisoner’s favour on Sentence.

16.	This court is of the view that the penalty that is to be imposed must reflect the concern of the Community as well as a reflection of the seriousness of the crime of sexual abuse committed upon young children.

17.	On that note the accused is sentenced to 3 years. The time spent in custody awaiting trial and sentence shall be deducted and the remaining term is fully suspended on condition that after prisoner is released, he shall keep the peace and be of good behaviour for 12 months.
                
The Public Prosecutor	: Lawyer for the State
The Public Solicitor	: Lawyer for the Accused