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State v Lin [2019] PGNC 121; N7818 (17 May 2019)

N7818

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 193 of 2018

THE STATE

-v-

JOSHUA LIN
Defendant

Kavieng: Kangwia, J
2019: 18 April &17 May

CRIMINAL LAW – Sentence - Offence of Sexual Touching in relationship of trust – Use of force to subdue victim – Possible rape saved by rain – Commission of offence after being drunk - Unreasonable explanation – Serious case of sexual touching – custodial sentence

Cases Cited:

State v Mungana Tovue CR 1111 of 2014 (unreported Judgement of 15 September 2015
State v Peter Tulemanil (2008) N3685
State v Kagewa Tanang (2005) N2941
State v Paul Nelson (2005) N2844
State v Thomas Angup (2005) N2830
State –v- William Patangala (2006) N3027
Goli Golu v the State (1979) SC 172

Counsel

S. Luben, for the State
A. Tunuma, for Defence

17^th May, 2019

1. KANGWIA, J.: The prisoner appears for Sentence after he was convicted on his guilty plea to one count of Sexual Touching, an offence created by s. 229B (1) (a) & (5) of the Criminal Code Act.

2. It was alleged that on 15 July 2017 the victim was returning from school when the prisoner who was sitting under a raintree near the basketball court called out to the victim and told her to go and see his wife. They walked together through a track and near the Catholic Compound the prisoner asked the victim for sex. The victim refused as they were cousins.

3. The prisoner grabbed her, lifted her blouse and kissed her breasts. He laid her on the ground and tried to have sex with her but rain fell and interfered with his attempt. The matter was reported to police and the prisoner was charged. The prisoner and the victim were cousins.

4. The prisoner is 27 years old and married with one child. He was educated up to Grade 5 only. He is the last born of three children.

5. He has no prior convictions.

6. On his allocutus, the prisoner said; ‘I was drunk then and did not know what I did. I recovered and found out that I committed a wrong. I apologize for what I did. I ask for probation to be out and settle the problem with the family.”

7. On his behalf, Mr. Tunuma submitted that the prisoner pleaded guilty early and was a first-time offender. He co-operated in the investigations by police. He was formerly employed as a security guard. He has been in custody for one year and eight months.

8. The penalty prescribed for the offence was 12 years but the Court has discretion to impose a lesser sentence. While conceding that the offence was serious a lower sentence was sought as the present case did not fall into the most serious case of sexual touching.

9. The Court was referred to the sentences in the following sexual touching cases for consideration of the penalty to be imposed;

10. The State v Mungana Tovue CR 1111 of 2014 (unreported Judgement of 15 September 2015) where a sentence of 5 years was imposed; State v Peter Tulemanil (2008) N3685 where a sentence of 7 years was imposed; State v Kagewa Tanang (2005) N2941 where the prisoner was sentenced to 6 years; State v Paul Nelson (2005) N 2844 where the prisoner was sentenced to 3 years and the State v Thomas Angup (2005) N2830 where the prisoner was sentenced to 4 years.

11. It was submitted that in the present case a sentence between 2 and 3 years with deductions and suspension was appropriate.

12. For the State, Ms. Luben conceded that the maximum penalty prescribed was 12 years and that it was reserved for the worst type of sexual touching. The aggravating features of the offence were that it was serious and prevalent. There was a breach of trust with a big age difference where the victim was 13 years old while the prisoner was 26 years. Although it was a one-off incident it was pre-meditated and the prisoner showed no remorse.

13. The State referred the Court to the case of State –v- William Patangala (2006) N3027 where the prisoner sexually touched the child to whom he was an uncle and was sentenced to 4 years even though he had paid compensation. In the case of the State –v- Mungana Tovue (supra) the prisoner was sentenced to five years for sexually touching the vagina of the victim with his penis and fingers.

14. The Pre-Sentence Report stated grounds to show that the prisoner was not a suitable candidate for probation. The statement of the victim’s guardian also preferred a custodial sentence.

15. It was therefore submitted that a custodial sentence of 4 years should be imposed.

16. The prisoner was indicted on one count of Sexual Touching under s 299B (1)(a) and (5) of the Criminal Code. The provision is in the following terms:

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) ...

is guilty of a crime.

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

(5) If at the time of the offence, there was an existing relationship of trust, authority or dependency between accused and the child, an offender against subsection (1) is liable to imprisonment for a term not exceeding 12 years.

17. The combined effect of the Subsections is that the prisoner stands to suffer a maximum sentence of 12 years.

18. The principle of Law was that the maximum penalty prescribed was usually reserved for the worst category of each offence: (See Goli Golu v the State (1979) SC 172)

19. From the facts, this case is serious and renders it as falling into the most serious category of Sexual Touching.

20. The victim was aged 13 years which is under the age limit of 16 years prescribed by the provision he was charged under. He was related to the victim. There was an age difference of 13 years. He abused his relative merely out of lust more than anything else. He was an adult having a wife and being the father of a child. He applied force by lifting her blouse and forcefully laying her on the ground and undressing her. This makes it a heinous act that calls for deterrence from all fronts.

21. I consider that the offender has shown no remorse; instead he gave prominence to settlement with compensation. Before sentence he stated that he was drunk when he committed the crime. That is no excuse. It is an unreasonable explanation.

22. I accept the submissions of both Counsels as relevant. The mitigating factors operate to minimize what could be a higher sentence.

23. The sentencing trend for Sexual Touching cases are hovering between suspended sentences to a term of Imprisonment. The sentences in such cases are more dependent on the circumstance of each case.

24. As stated earlier the present case falls into the serious category of sexual penetration. The probation report has stated that the prisoner was not a suitable candidate for probation. The views of the victim’s relatives in the probation report also indicated that they were not willing to accept any form of compensation. All these circumstances support a custodial sentence.

25. In sentencing, I would be doing grave injustice to either send the prisoner to a very high sentence or a very low one. The offence amounted to defilement of a child and it should be deterred for all purposes. The offence was aggravated by the use of force with an intention to rape the victim but was unsuccessful. Rain saved her. The prisoner was a parent who had a child of his own which never featured anywhere in his lust for sexual gratification.

26. Given all that has been said a sentence of 04 years imprisonment is appropriate and the prisoner is sentenced accordingly. The period of time spent in custody awaiting trial shall be deducted from the 04 years. He will serve the balance of the sentence at CS, Kavieng.

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner