N9238

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1256 OF 2016

THE STATE
V
GODFREE MANUEL

Alotau:  Toliken, J
2017:   27th October
2018:     6th July

 CRIMINL LAW – Sentence – Sexual touching – Guilty plea - Juvenile – Prisoner accosted 8 year old victim on road – Drags him into the bush and rubs his erect penis on victim’s anus – Not as worst case – No physical injuries suffered – Good mitigating factors  - Some aggravating factors – Sentencing objectives and principles under Juvenile Justice Act 2014 considered – Welfare of juvenile of paramount consideration – Need to steer prisoner away from life of crime – Period of 2 years 1 month and 26 days sufficient punishment – Sentenced to rising of the Court – Criminal Code Ch. 262, s 229B (1)(4); Juvenile Justice Act 2014. 
				       
Cases Cited

The State v Jeremaiah Topio; CR NO.888 of 3027 (unreported and unnumbered judgment dated 8th September 2017)

Counsel

J Apo, for the State
P Palek, for the Prisoner

SENTENCE
6th July, 2018

1.	TOLIKEN, J: 	Godfree Manuel, on 27th October 2017, you pleaded guilty to one count of sexual touching of a child below the age of 12 years, an offence under Section 229B (1)(4) of the Criminal Code, Chapter 262.
2.	I was not able to pass sentence on you, so I do so now.
3.	The brief supporting facts are that on the 2nd of March 2016, the victim Clowes Basinauro was at Naura Village and was on the way to the river to fetch water.  You accosted him on the way and told him that you wanted to show him something. The victim refused and kept walking. You then grabbed him and dragged him into the nearby bushes.  There, you pushed him to the ground face down and removed your clothes as well as the victim’s.  You then rubbed your very hard and erect penis on and around his anus as the child cried in pain.  You then let go of the child and told him not to tell anyone. The victim, however, went home and reported the matter to his mother. The matter was later reported to the police resulting on your apprehension. The victim was 8 years old at that time while you were 17 years old.
4.	I convicted you after I had perused the committal court depositions and invited you to address the Court on sentence. I adjourned the matter to allow for a Presentence Report for you to be filed.  
5.	You are from Bidas Village, Weraura, RLLG, Alotau District, Milne Bay Province.  You are 19 years old now, but at the time you committed the offence, you were 17 years old.  You are the second born in a family of five – 3 brothers and 2 sisters.  Your parents are both still alive.  You are a member of the Seventh Day Adventist Church and were only educated up to Grade 7 at Naura Primary School. 
6.	The offence of sexual touching of a child under the age of 16 years carries a maximum penalty of a term of imprisonment not exceeding 7 years.  However, where the victim child is under the age of 12 years an offender may be liable to a term not exceeding 12 years. Your victim was 8 years old hence, you are liable to be sentenced to 12 years imprisonment.
7.	This, however, does not mean that you will be imprisoned for twelve years.  That is because the maximum penalty is reserved for the worst type of cases only.  Each case must also be treated according to its own facts.  And because you were a juvenile when you committed the offence, the Juvenile Justice Act 2014 (JJA) provides that you must be treated quite differently from adult offenders and must be sentenced according to the requirements of that Act.  
8.	The JJA provides that the most important consideration when sentencing a juvenile like you is your welfare.  The object of sentencing juveniles is to ensure that the juvenile offender appreciates and takes responsibility for his offence so that he can be directed to turn away from his criminal behaviour.  In that regard, the JJA also provides that a juvenile may only be sentenced to a term of imprisonment as a last resort, among other safeguards.  The scale, as it were, is therefore heavily tipped in favour of juveniles like you.
9.	What then should be an appropriate sentence for you?  When I invited you to address the Court on sentence, you apologised to the Court and to God for breaking the law.  You asked the Court to show mercy on you and place you on probation.
10.	Your lawyer, Mr. Palek submitted that an appropriate sentence for you should be 3 – 6 years, because of your good mitigating factors such as your youthfulness, your guilty plea, your lack of prior convictions and your expression of remorse. I accept that those factors do mitigate your offence and I may add also that the victim did not suffer any physical injuries.
11.	Your Pre-Sentence Report was non-committal in that the author left it to the Court to impose an appropriate sentence for you.
12.	Mr. Apo, for the State submitted that you should get a sentence of 4 years.  This is because of the pain and suffering suffered by the victim, loss of dignity, the very tender age of the victim and the prevalence of the offence.  I also accept these factors as aggravating your offence.
13.	Both Counsel cited some cases to assist the Court in determining an appropriate sentence for you.  All but one of these cases involved adult offenders hence, they are not entirely relevant to sentencing juvenile offenders.
14.	The case that would be relevant and similar to your case is that of The State v Jeremaiah Topio; CR NO.888 of 3027 (unreported and unnumbered judgment dated 8th September 2017).  There, the offender, who was aged 17 years met the victim, a 15-year-old girl, as she was walking home from her garden.  He held her and forced her to the ground, took off her skirt and tights as well as his own shorts and then forcefully tried to penetrate the victim but could not.  I convicted the young man on his admission and sentenced him to 3 years.  I ordered that he serves 6 months and suspended the balance.
15.	The JJA also provides that a sentencing court is not bound by precedence i.e., by what sentences had imposed in other cases or by any guideline tariffs set by the Supreme Court for that matter. (s 77 (2) JJA) And that is again because the sentencing court must be guided by the individual circumstances of the case before it so that it imposes a sentence that is best suited for the juvenile offender before it. Hence, the fact that the court may have imprisoned a juvenile in a previous case, does not necessarily follow that it will do likewise in the case currently before it.
16.	Coming back to your case, what you did to the victim was an act which must be condemned in the strongest possible way.  You tried to sodomize the young boy who was only 8 years old.  While he did not suffer physically, the experience would have traumatized him.  He would have and may still suffer emotionally and psychologically, not to mention the stigma and ridicule he must face from his peers and members of his community.
17.	You ought then to be punished for your offence.  However, you must also be corrected and steered away from the destructive course that you have taken.
18.	I am certain that you have learned a hard lesson during your incarceration at the Giligili Corrective Institution.  The past 2 years 1 month and 26 days certainly were not easy for you, and I am sure that you would not want to go back to prison ever again. 
19.	You must learn to respect other people and especially the vulnerable - those who cannot defend themselves like young boys and girls.  Certainly, you would not want to be sexually penetrated in your anus against your will by another man – a stranger and possible violent man.  Like your victim, you will feel dehumanized and defiled and you will suffer the trauma and stigma associated with such a degrading assault and invasion to your most intimate privacy.
20.	I am of the opinion that you have more than paid for your offence during the 2 years 1 month and 26 days of your incarceration.  And I think that, that period is sufficient punishment for you.
21.	Therefore, I sentence you to the rising of the Court.
Ordered accordingly.
______________________________________________________________________
Public Prosecutor: Lawyers for the State	
Public Solicitor: Lawyers for the Prisoner