N7473

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.126 OF 2017

THE STATE

V

PETER BEN NDRAHIYEK

Lorengau:	Gora, AJ
2018: 13th, 14th & 27th March

CRIMINAL LAW – Sentence– Sexual purposes touched with his penis the vagina of the victim – Victim aged 14 years at the time of offence - Criminal Code, Section 229B(1)(a) – Guilty plea.

CRIMINAL LAW – Sentencing range – Not a worse type of case – Maximum penalty not appropriate.

Cases Cited

Avia Aihi v. The State (No.3) (1982) PNGLR 92
Goli Golu v. The State (1979) PNGLR 653
Ure Hane  v. The State (1984) PNGLR 105 
The State v. Ape Handrella (No.2) (2016) N6196
The State v. Tala John (2012) N4630
The State v. Moide Kaki (2016) N641
The State v. Arhcie (2009) PGC 118 N3727

Counsel

Francis Popeu, for the State
Tom Kaleh, for the Applicant/Accused

RULING ON SENTENCE

27th March, 2018 

1.	GORA AJ:	INTRODUCTION: Prisoner PETER BEN NDRAHIYEK pleaded guilty to  an indictment charging him with one count of Sexual Touching pursuant to Section 229B (1) (a) of the Criminal Code (Sexual Offences and Crimes Against Children) Act and was convicted on that charge.

2.	The indictment to which the prisoner pleaded guilty is in the following terms: PETER BEN NDRAHYEK of KOROJIH village, POBUMA – LORENGAU, MANUS PROVINCE stands charged that he on the 19th day of October 2016 at Korojih Manus Province, Papua New Guinea for sexual purposes touched with his penis the vagina of MELINDA ANDREW, being sexual part of her body, a child under the age of 16 years, then 14 years old.

FACTS

3.      Facts are that on Wednesday 19th October 2016, between 3:00pm and 4:00pm the victim child was on her way home from school. A she was walking home she heard someone call out “hey you wait first.” When the victim child turned around she saw the prisoner Peter Ben Ndrahiyek walking quickly towards her. She noticed the prisoner putting his left hand into his left back pocket of his trousers and removed something concealed with a green cloth. Thinking it was a knife she got scared and began to run but the prisoner ran after her, caught up with her and grabbed her left hand. She struggled to free herself from him but he held her hands tightly and pulled her backwards. He then put his hands around her breast and carried her into the nearby bushes. The victim child cried out loud and prisoner slapped her on the mouth and told her not to shout or he would stab her. He carried her into the bushes and laid her under a coconut tree. She attempted to run away but the accused pushed her onto the ground and ordered her not to get up. She began to cry and prisoner threatened her and told her to remain quite. He then removed her uniform trousers and under wear. Then he pulled down his own trousers, parted the complainant’s legs and began rubbing his penis against her vagina. He continued to rub his penis against her vagina until he ejaculated. Then he pulled up his trousers. The complainant child got dressed crying and left.

ISSUE

4.      What is the appropriate sentence?

THE LAW

5.     Section 229B (1) (a) of the Criminal Code creates the offence of Sexual Touching and also prescribes the penalty for that offence. Sub Section (1) is in two parts. Firstly it provides that a person who for sexual purposes touches with any part of his or her body, the sexual parts of a child under the age of 16 years is guilty of a crime. Secondly it provides that a person who for sexual purposes compels a child under the age of 16 years to touch any parts of his or her body, the sexual parts of the accused person’s own body is guilty of a crime. 

Penalty for both instances is imprisonment for a term not exceeding 7 years.

APPLICATION OF THE LAW

6.      Law imposes a maximum term of 7 years for those who touch for sexual purposes the sexual parts of a child under the age of 16 years. If the child is under the age of 12 years the maximum term is 12 years. And if at the time of the offence there is an existing relationship of trust, authority or dependency between the accused and the child the maximum is a term not exceeding 12 years.

7.      In the present case the complainant child was 14 years old when the prisoner committed the offence and at that time there was no existing relationship of trust, authority or dependency between the complainant child and the prisoner. Therefore the maximum term of imprisonment is 7 years.

8.      The law however does not set a minimum term and this in essence means that there is room for exercise of discretion whether to impose the maximum term or a term lower than the maximum term of 7 years.

9.      I am aware that it is now an established law in our jurisdiction that the maximum prescribed sentence must be reserved for the worst type of cases. This is well illustrated in the cases of Goli Golu v. The State (1979) PNGLR 653; Ure Hane v. The State (1984) PNGLR 105 and Avia Aihi v. The State (No.3) (1982) PNGLR 92. 

10.      The question is whether the circumstance under which the offence was committed equals to a worse type of case.

11.     Counsel for the Prisoner submitted that this is not the worse type of case and the court should take note of comparable case authorities to assist in determining an appropriate sentencing range for this particular offence.

12.      The following cases relating to charges of sexual touching of a child are cited for comparison purposes:

(a)	The State v. Ape Handrella (No.2) (2016) N 6196. In this case the victim child was under the age of 12 years, who was then 5 years old at that time. The prisoner was given 3 years less the pre-trail custody period. The remaining balance was wholly suspended with conditions.

(b)	The State v. Tala John (2012) N4630. In this case the victim child was 10 years old at the time of the offence and the prisoner was her biological father. He was charged for rubbing his daughter’s vagina with his fingers. Prisoner was sentenced to 6 years imprisonment.

(c)	The State v. Moide Kaki (2016) N641. In this case the victim child was 13 years old at the time of the offence. Prisoner rubbed his penis against the victim’s vagina but did not sexually penetrate her. He was sentenced to 4 years in hard labour. 2 years were suspended with conditions.

(d)	The State v. Arhcie (2009) PGNC 118. In this case the victim was 13 years old at the time of the offence. The prisoner had put his penis against the victim child’s vagina and was attempting to sexually penetrate her when he was interrupted by a third party. He was sentence to 3 years imprisonment less 1 year in custody. Balance of 2 years was suspended with conditions.

13.      From the above cases it is obvious that the sentencing range for the offence of touching for sexual purposes the sexual parts of a child is between 2 – 6 years imprisonment as illustrated by these cases. However, the term of sentence for each case should be considered on its own peculiar facts and circumstances for example the age of the victim child, age gap between the prisoner and the victim, the mode or nature of sexual touching, use of threats or violence.

14.    These cases also demonstrate that maximum sentence is reserved only for the worse type of cases.

15.      In the present case the offence committed by the prisoner may not appear to be in the worse type of cases and is similar to the case of State v. Moide Kai and State v. Archie (supra) where 4 years and 3 years terms was imposed respectively. These two cases are similar to the present case where it involved rubbing of penis against the victim’s vagina. They could be considered as guide in determining the appropriate sentence for the present case.

16.      However there are aggravating circumstances to take into account which vary and these are:

(a)	Prevalence of the offence – there is an increase in such cases in the community, not only in Manus Province but in the country as a whole. Such offences threaten the safety of young women in the society who cannot walk around freely out of fear of falling victims of such crimes.
(b)	Deterrence – a sentence imposed must not only deter the prisoner from committing such offences again but must also deter others as well.
(c)	Young Victim – she was at a tender age of 14 years at the time of the alleged offence and such experience is likely to cause traumatic effects on the victim child.
(d)	Threats were issued when victim cried and tried to resist the prisoner and at one stage prisoner hit her on the mouth.

17.    But I am equally mindful to take into account the mitigating factors and these are:
(a)	Prisoner pleaded guilty to the charge thereby saving courts time and resources in running a trial.
(b)	Prisoner is a first time offender with no prior conviction
(c)	He has expressed remorse for the wrong he did
(d)	Victim did not suffer any serious injuries as a result of the offence
(e)	He acted alone.

18.      It appears to me that in the present case the mitigating factors outweigh the aggravating factors and therefore any term of sentence to be imposed must be reflective of these factors.

19.     I also take into account the Pre-Sentence Report provided by the Community Based Correction (CBC) office. The report recommends that the prisoner is a suitable candidate for probation supervision and that non-custodial sentence may be appropriate for the prisoner for rehabilitation and counseling purposes. The report further recommends compensation payment in cash and kind and for a reconciliation ceremony to be done.

20.     Taking in to account all these considerations I am of the view that 3 years sentence term would be appropriate for the Prisoner.

21.      I therefore order that:

(a)	The prisoner is sentenced to 3 years imprisonment in hard labour less 4 months spent in pre-trial custody, hence balance of 2 years and 8 months.
(b)	However 2 years is suspended on conditions that the prisoner pays compensation of K500.00 in cash to the victim and a reconciliation ceremony to takes place to be facilitated by the CBC office. All these are to take place in the first 12 months of the suspended term.
(c)	If any of the conditions are breached, the prisoner shall be arrested and brought to the National Court in respect of the suspended portion of the sentence.
(d)	Prisoner is to serve the remaining balance of the sentence which is 8 months at the Lorengau Corrective Institution Service (CIS).

Public Solicitor:	Lawyers for the Applicant/Accused
Public Prosecutor:	Lawyers for the State