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State v Inabin [2018] PGNC 255; N7374 (20 July 2018)

N7374

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1643 of 2016

THE STATE

V

MISIRU INABIN

Kibil - Duke of York: Anis J
2018: 7^th June & 20^th July

CRIMINAL LAW – Sentencing after trial - Section 229B(1)(a)(4) & (5) of the Criminal Code Act Chapter No. 262 – prisoner guilty of sexual touching of a child under the age of 12 years old – child 11 years old – breach of trust, authority and dependency

Cases cited:

State v. Stanley Marai Uriye (2003) N2386
State v. Kenneth Peter (2002) N2336
Jennifer Jean Scott v. Michael Jean Scott (2009) N3881
State v. Misuru Inabin (2018) N7287
State v. Makis (2017) NCSO 545
State v. Manu Nombo (2016) NCSO 478
State v. Aigilo (2017) NCSO 554
State v. Bire Bonnie (2018) N7301

Counsel:

Ms S. Luben, for the State
Ms J. Ainui, for the Accused

SENTENCE

20^th July, 2018

1. ANIS J: On 7 June 2018, the Court, after a trial on verdict, found the prisoner guilty of sexual touching of a child under the age of 12 years under section 229B(1)(a), (4) & (5) of the Criminal Code Act Chapter No. 262 (the CC Act). The decision on verdict is unreported and its citation is State v. Misuru Inabin (2018) N7287.

2. This is my ruling on sentence.

BACKGROUND

3. The incident occurred on 23 June 2016, at Mioko Palpal village in the Duke of York of East New Britain Province. The victim was 11 years old at the time. The prisoner was a grandfather of the victim. He was found guilty of touching the vagina of the victim with his fingers at his house whilst he was alone with her.

ISSUE

4. The main issue of course is for this Court to determine a fitting punishment for the prisoner. To do so, let me begin by setting out the relevant provision.

SEXUAL TOUCHING

5. Section 229B(1)(a), (4) and (5) of the CC Act reads:

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

.....

is guilty of a crime

Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.

.....

(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.

6. The prisoner was also found guilty under subsections (4) and (5) of section 229B of the CC Act. As such and under statute, the prisoner is liable to be sentenced to a maximum of 12 years imprisonment. Of course, the Court’s discretion on sentence (section 19 of the CC Act) will depend on various factors including the circumstances of the case. Let me address them now.

THE VICTIM

7. The victim was 11 years old at the time of the incident. The prisoner is closely related to her. The prisoner is the brother of her grandfather and he is also regarded as her grandfather. The victim was adopted by her grandparents as a child and has since lived with them up to the time she was sexually assaulted by the prisoner. The prisoner is their immediate neighbour.

8. The victim was never interviewed so there is no further information about her.

9. But let me say this. The Court has found in its decision on verdict that the prisoner had an existing relationship of trust, authority and dependency with the victim at the material time. The Court has also found through the evidence of the victim’s grandmother that the victim had shown signs that she was traumatised immediately after the incident.

THE PRISONER

10. No pre-sentence and means assessment reports were requested for the prisoner. The antecedent report states that the prisoner has no prior convictions. This was his first recorded conviction.

11. The prisoner is 66 years old. He comes from Mioko Palpal village in Duke of York in East New Britain. He completed grade 3 at the Kabian Primary School. He never completed his primary education. Since that time onwards, the prisoner has remained a villager. He lived in the village or as a villager up to the time he committed the offence. He sustains himself economically through fishing.

12. At allocatus, the prisoner had these to say. Firstly, he thanked the Court for finding him guilty. Secondly, he said that he was old and that it was his first time to appear in Court. Thirdly, he asked the Court to have mercy on him and give him a non-custodial sentence with probation terms and conditions. There were no extenuating circumstances.

FACTORS

13. The mitigating factors in favour of the prisoner are as follows. Firstly, the prisoner is a first time offender and it appears to be a one off incident. Secondly, the prisoner’s old age. The prisoner is 66 years old. The defence also submits that the advanced age of the prisoner’s mother should be treated as a mitigating factor. I reject that as a valid mitigating factor. Firstly, there is nothing put down to support this claim. There is no information regarding the age of the prisoner’s mother. The prisoner himself makes no mention of this in allocatus. I also find that such a consideration may be raised at the later stage when the Court is considering the type of punishment to impose on the prisoner and not as a mitigating factor.

14. The aggravating factors are as follows. Firstly, there is big age gap of 53 years. Secondly, the tender age of the victim that is 11 years old at that time the crime was committed upon her. The victim was and still is legally regarded as a child. See cases: State v. Stanley Marai Uriye (2003) N2386; State v. Kenneth Peter (2002) N2336 and Jennifer Jean Scott v. Michael Jean Scott (2009) N3881. Thirdly, evidence that the victim was traumatised immediately after the incident. Fourthly, the prisoner has not apologised to the victim in allocatus.

15. The prosecution also submits that because the prisoner has not pleaded guilty, court’s time and resources have been wasted so it submits that these should be taken into account. It also submits that because of the non-guilty plea, the victim had to relive the ordeal by testifying in Court at the trial. Whilst these considerations may be recognised, the thing that bothers me about these two factors is this. I think we should be reminded that the fundament rights of accused persons are protected under the Constitution. In my view, for a person to plead “not guilty” is his or her fundamental right, that is, the right be presumed innocent until proven guilty, and also the right to a fair trial (see section 37 generally and in particular sub-sections (1) & (4)(a) & (e) of the Constitution). So can the Court later be asked to hold an accused person accountable because the accused person had exercised his or her fundamental right and had pleaded not-guilty but that he or she was later found to be guilty? I do not think so. It would be most unfair and also I think that it would be against the spirit of the Constitution. Now, having said that, I note that it would be different, in my view, in a case where an accused person has pleaded guilty or in a plea case. Considerations such as avoiding wastage of resources or the Court’s time or saving the victim from having to relive or retell the ordeal at the trial, would be appropriately regarded as valid or relevant mitigating factors.

16. As such, I disallow these two (2) aggravating factors.

PROSECUTION

17. The prosecution submits that a custodial sentence is warranted for this case. It submits that the maximum prison term the prisoner is eligible to for the offence is 12 years. It submits that the Court should consider a starting point of 6 years before increasing or reducing the sentence as it deems fit.

DEFENCE

18. The defence submits that the suitable sentence should be a non-custodial sentence of 4 years. The defence submits that the Court should take into account the advanced age of the prisoner’s mother. However, as I have stated above in my judgment, this consideration is not supported with any evidence. I dismiss it as a valid consideration for this sentence assessment.

19. The defence also suggests that the Court should consider imposing strict terms and conditions upon the prisoner should he be released on probation. The defence submits that an order for the prisoner to pay compensation should also be part of the conditions that the Court should impose if the prisoner’s sentence is fully suspended.

ASSESSEMNT

20. Both counsel have assisted the Court with the case authorities. I have considered them. I have also considered various similar case authorities and precedents. I will not discuss them all but refer to a few that I think are relevant for this purpose.

21. The first case is the case of State v. Makis (2017) NCSO 545. The decision was delivered on 9 February 2018. The accused pleaded guilty to sexual touching of a child under the age of 12 years old under section 229B(4) of the CC Act. The victim was less than 12 years old at the time of the offence. The prisoner was 29 years old. He was found to be in a position of trust, authority and dependency over the victim. He was sentenced to 6 years imprisonment less the time he had spent in custody. The second case is the case of State v. Manu Nombo (2016) NCSO 478. The decision was delivered on 26 October 2017. The prisoner pleaded guilty to sexual touching of a child under the age of 12 years old under section 229B(4) of the CC Act. The victim was under the age of 12 years old at the time of the offence. The prisoner was 26 years old. He was found to be in a position of trust, authority and dependency. He was sentenced to 7 years imprisonment less his pre-sentence custody period. The third case is the case of State v. Aigilo (2017) NCSO 554. The prisoner pleaded not guilty. After a trial, he was found guilty of sexual touching under section 229B(5) of the CC Act. The prisoner was 40 years old at the time he committed the offence. He was found to be in a position of trust, authority and dependency at the time. He was sentenced to 6 years imprisonment. Two (2) years of his sentence was suspended with imposed conditions. The prisoner’s pre-sentence custody period of 11 months was also deducted.

22. The maximum prison term I could impose on this prisoner is 12 years. I note that for this case, the prisoner was found guilty of one count of sexual touching. The worst case I would imagine would be for example if the prisoner had been found guilty of more than one count of sexual touching, or for example if weapons or violence were used as well. The present case, in my view, does not fit into the worst type of case category for the offence. I consider that the appropriate starting point should be a prison term of 6 years.

23. In mitigation, I take into account the age of the prisoner; the fact that this was a one off incident and the fact that the prisoner did not use force or violence at the time of the assault. I will allow a reduction of 3 years. This will see a reduction of the draft sentence to 3 years imprisonment. For aggravation, I take into account the big age gap of 53 years between the prisoner and the victim. I also take into account the fact that the prisoner did not say sorry to the victim. In regard to the tender age of the victim that is 11 years old and the fact that the prisoner was in a position of trust, authority and dependency, I note that these are taken into account in the statute itself, that is, under section 229B(4) and (5) of the CC Act. Upon being found guilty under these provisions, the prisoner was liable to a higher sentence of 12 years. These considerations, in my view, have been proven and I have also considered the 12 years maximum sentence before I started applying the discounts. So to add or take these into account again here would, in my view, be unjust or be regarded as an inappropriate exercise of my discretion. So with that said and noting the aggravating factors stated herein, I will add 2 years imprisonment onto to the 3 years.

24. This will see the prison term increase to 5 years. I therefore sentence the prisoner to 5 years imprisonment.

TYPE OF PUNISHMENT

25. Should this Court impose a full custodial sentence upon the prisoner? Should this Court fully suspend the sentence that is imposed on the prisoner? Or should this Court consider partial suspension?

26. I have considered these options. In my view, I will firstly suspend one (1) year from the 5 years prison sentence for the prisoner. The prisoner shall serve the balance of his sentence that is 4 years imprisonment. In my view, a custodial sentence is warranted for this case. Let me explain. I have taken into account the interest of the victim in this regard. The victim was 11 years old when she was sexually assaulted. She would now be 13 years old. She is still a child under law for all purposes. As a Judge, I must ask myself this. “What sort of message will the Court convey to the victim, to her parents and others who are affected by the actions of this prisoner, if the Court is to fully suspend the prisoner’s sentence and send him back to re-join the society?” The victim is still a child growing up and she has already been affected psychologically by the incident. If she sees the prisoner back at his house which is next to the victim’s house, how would she understand this? What sort of message would the Court be sending out to the victim? In the recent case of State v. Bire Bonnie (2018) N7301, I stated at paragraph 20 and I quote:

20. Any form of sexual offence that is committed on a child is a very serious matter. In my view, children are the cradle of a society; they (i.e., children) are the building blocks of society itself. Their evolvement or experiences in societies that they live in will eventually shape or determine the type of societies, or a province, or a nation as a whole

27. I adopt what I have stated therein here. In my view, to impose a custodial sentence on the prisoner would be appropriate. It will or should send a positive impact or view towards the victim and to society as a whole. That is, that sexual offences against minors or a child will not be tolerated or be treated lightly with a fully suspended sentence. It is vital, in my view, for the victim child to know or see that the prisoner is actually put away in prison for the offence that he has committed on her.

28. I will therefore impose a custodial sentence of 4 years imprisonment with hard labour upon this prisoner. The prisoner has been out on bail but if any time had been spent in custody, it shall be deducted forthwith. The prisoner’s bail money shall be refunded.

THE ORDERS OF THE COURT

29. The prisoner is sentenced forthwith.

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Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused