N9217                                      

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1133 OF 2019

THE STATE

V

SAULO OISILO

Alotau:  Toliken, J.
2020:  18th November

CRIMINAL LAW – Sentence – Guilty plea – Sexual touching – Circumstances of aggravation – Child under 12 years of age – Abuse of trust – Guilty plea – Aggravating and mitigating factors considered – Not a worst case – Appropriate sentence 6 years less time in custody – Resultant sentence wholly suspended on condition – Criminal Code Ch. 262, s 229B.
   
Cases Cited

Public Prosecutor v Tardrew [1986] PNGLR 96
Aihi v The State (No.3) [1982] PNGLR 92
Golu v The State [1979] PNGLR 653
Public Prosecutor v Hale (1998) SC564
The State v Torrie (2015) N5966
The State v George Temule; CR NO.726 of 2014 (unnumbered and unreported judgment of 20 July 2015)
The State v Moses Dirtala; CR NO. 347 of 2015 (unnumbered and unreported judgment of 09 December 2015
The State v George Manasi; CR NO. 661 of 2011(unnumbered and unreported judgment of 09 August 2013)

Counsel

A Kupmain, for the State
N Wallis, for the prisoner

JUDGMENT ON SENTENCE

18th November, 2020

1.	TOLIKEN, J:   Saulo Oisilo, you pleaded guilty to an indictment charging you with one count of sexually touching the vagina of a child, who, at the time of the offence was under the age of 16 years, namely 6 years, with whom you stood in a position of trust, authority and dependency.  This is an offence under Section 229B(1)(a)(4)(5) of the Criminal Code.

2.	The facts put to you to support the charge (which you agreed to) are these.  You were the Chairman of Naura Elementary School, where the victim MT was a pupil.  She was 6 years old at that time.  On 7th May 2019, you were at the school.  You called the victim into the School Office and gave her lollies.  You then showed her photographs of a nude woman.  You then pushed your hand into her clothes and touched her vagina and let her go.

3.	I was satisfied that the depositions supported your charge and accordingly convicted you.

4.	The circumstances of aggravation pleaded in your indictment are that the child was under the age of 12 years (6 years old) and that you were in a position of trust, authority, and dependency as Chairman of the Naura Elementary School which the victim was attending. This means that you can be imprisoned for a period not exceeding 12 years.  In the absence of these circumstances of aggravation, you could be sentenced to 7 years imprisonment only.

5.	But while the maximum penalty for this type of offending is 12 years, this does not necessarily mean that you will get 12 years.  That is because the maximum penalty is usually reserved for the worst type of cases or offending.  Furthermore, you must be given a sentence that fits the facts and circumstances of your own case.  These are well settled principles of sentencing. (Golu v The State [1979] PNGLR 653; Aihi v The State (No.3) [1982] PNGLR 92) 

6.	What must be stated quite emphatically at the outset is that people who abuse children, particularly those like you who stand in positions of trust, authority or dependency must be severely punished.  People in positions of trust like you – such as school board members, teachers, parents, doctors, Pastors and close relatives have a legal as well as a moral duty to protect those under their care, especially children because of their vulnerability.

7.	Child abuse is a global problem – it is perhaps pandemic and in our own society, the problem is so bad that Parliament, in keeping with its duty or obligation under the United Nations Convention on the Right of the Child (CRC) which it had ratified, created specific offences, such as the one you were charged with, to protect children from sexual abuse.  And it had prescribed very stiff penalties including life imprisonment for cases involving sexual penetration of a child below the age of 12 years or where there is an existing relationship of trust, authority, or dependency.  Persistent sexual abuse involving acts of penetration also attract life imprisonment. (s 229A and 229D of the Code) Even for sexual touching an offender may be liable to be imprisoned for up to 12 years where circumstances of aggravation are pleaded in the indictment. This Court is therefore duty bound to give effect to the will of the people as expressed through Parliament.

8.	Coming back to your case, you are 72 years old, may be 73 by now.  You have never been married and are the second of 5 siblings.  You are a member of the Kwato Church and had been educated up to Standard 6 in the 1960s.  Except for a short stint with the Department of Works as a Labourer in the early 70s, you have essentially lived a subsistence life in the village.  You are a first-time offender.  You spent 1 month and 23 days in custody before you were granted bail.

9.	When asked to address the Court before you were sentenced, you again admitted committing the offence.  You apologised and said that you did not know what made you commit the offence, but since this is your very first offence, you asked that you be placed on probation so that you will go back home and apologise to the whole community and pay compensation to the victim and her family.

10.	Mr. Wallis, your lawyer, submitted that yours is not a worst case.  Hence, it should not attract the maximum penalty.  Instead, Counsel said an appropriate sentence for you should be 4 – 6 years.  You also have a balanced and favourable Pre-Sentence Report (PSR), so Mr. Wallis asked that your sentence be suspended and that you be placed on probation.

11.	Mr. Kupmain on the other hand submitted on behalf of the State that yours is a very serious case because you, not only breached the trust placed in you as Chairman of the Elementary School, but also because your victim was a child of 6 years of age.  Mr. Kupmain refers the Court to a Report attached to your PSR by teachers in the school who suspect that there may have been a lot more children abused by you.  The State is afraid, therefore, that you might re-offend and hence Mr. Kupmain submitted that you be sentenced to 5 – 8 years. This should, Counsel said, be a strong punitive and deterrent sentence for you.

12.	I agree that this is not necessarily a worst case notwithstanding that it exhibits 2 statutory circumstances of aggravation.  I will set a starting point of 6 years.  What then should be an appropriate head sentence?

13.	Let me start by considering your mitigating and aggravating factors.

14.	I find the following factors in your favour:

(1)	You pleaded guilty very early to your offence, thus saving time and money for the State. You also saved the victim the trauma of not re-living her unpleasant experience had the matter gone to trial.

(2)	You co-operated with the police by admitting your offence very early.

(3)	You are a first-time offender.

(4)	You were of prior good character before you committed this offence.

(5)	You are well advanced in years.

(6)	You are a simple unsophisticated villager.

(7)	The victim did not suffer any physical injuries.

(8)	You acted alone.

(9)	This was a one-off incident.

(10)	You did not use any physical violence or weapons on the victim.

(11)	You have expressed remorse and have offered to pay compensation.

15.	Against you, I find the following factors:

1.	Your victim was very young – she was merely 6 years old.

2.	You were the Chairman of the Naura Elementary School and hence you breached the trust reposed in you.  This was in fact a very serious breach of that trust.

3.	While the victim did not suffer physically, there is always the possibility that she will sometime in the future experience the psychological effect of the abuse and she may also suffer ridicule from her peers.

4.	This offence is very prevalent, not only here in Milne Bay but right across the country.

16.	You must be given a sentence that will not only punish you, but most importantly, deter you personally and others who may be similarly inclined.

17.	What you did was despicable and shameful.  You were entrusted by the parents of Naura to not only care for the affairs of the school but also to care for the welfare of the pupils attending the school.  These were duties imposed upon you and your Board by the parents and citizens of the school.  Your appointment to the Board as Chairman, bespeaks of the confidence and trust the parents had in you, which to me would have meant that you had a good reputation in your community.  Instead of cherishing the honour bestowed on you by parents, you abused their trust.  You also abused the trust that the young pupils had in you, and in so doing, you brought great shame upon yourself and your relatives as well.

18.	If touching the child, however, slightly it was, was not enough, you also had the audacity to show her nude photographs of a woman. I do not know what you could possibility have achieved by that, but what it does show is how depraved your mind is.  The teachers at the school have reported in the PSR that you may have abused other girls in this manner, but those statements stand untested, and I will not give them any weight.  However, it shudders me and parents of Naura Elementary School to think that this may have indeed happened to the pupils there.

19.	You are not the first person in a position of trust to have appeared before this Court.  I will cite a few of the cases that have been dealt with here in Alotau to give you some idea about what you can expect to receive.

20.	In The State v Torrie (2015) N5966, I sentenced the offender to 4 years imprisonment for sexually touching his 4-year-old great granddaughter’s vagina with his tongue.  I considered the offender’s advanced age (87) years) and wholly suspended his sentence and placed him on probation with strict conditions.

21.	In The State v George Temule; CR NO.726 of 2014 (unnumbered and unreported judgment of 20 July 2015), Kassman, J. sentenced the offender to 5 years imprisonment on a plea of guilty.  The offender aged 50 years, licked, and touched his 8-year-old niece’s vagina with his tongue and penis.  The sentence was wholly suspended.

22.	The State v Moses Dirtala; CR NO. 347 of 2015 (unnumbered and unreported judgment of 09 December 2015).  There, I sentenced the offender to 6 years imprisonment.  I ordered that he serve 2 years and suspended the balance.  The offender there had lured his 6-year-old granddaughter into the bush in the pretext of showing her a cub house but instead proceeded to rub his penis on her vagina.

23.	The State v George Manasi; CR NO. 661 of 2011(unnumbered and unreported judgment of 09 August 2013).  The 75-year-old offender called two girls aged 6 and 9 years, whom he regarded as grand-daughters into his room.  He then proceeded to touch their vaginas after removing their clothes.  On his guilty plea, I sentenced him to 3 years for each count which I wholly suspended on condition.

24.	There are many more cases which have come before me here in Alotau, but the above cases should suffice for our present purposes.

25.	So, having considered the circumstance under which you committed this offence and your aggravating and mitigating factors and the need to give effect to the object of sentencing offenders for sexual offences – the protection of children – and after having set the starting point of 6 years, I think that an appropriate sentence for you ought to be 6 years.  I, therefore, sentence you to 6 years imprisonment.  From that, I will deduct the 1 month and 23 days for the time you spent in Pre-Trial/Sentence Detention.

26.	Finally, should any part of the balance of your sentence be suspended? The Court does have the discretion to suspend a sentence.  You have met the requirements for suspending a sentence. (Public Prosecutor v Tardrew [1986] PNGLR 96; Public Prosecutor v Hale (1998) SC 564) And so, I am of the view that your sentence ought to be wholly suspended.  You will be placed on probation with some strict conditions.

27.	Your sentence is, therefore, as follows:

1.	You are sentenced to 6 years imprisonment from which 1 month and 23 days is deducted for time spent in custody.
2.	The balance of your sentence which is 5 years 11 months and 7 days is wholly suspended, and you are placed on probation for a period of 5 years with the following additional conditions:
(i)	You will not have any contact whatsoever with any girl under the age of 16 years in the absence of adults.
(ii)	You are not to hold any positions in school boards or in other boards which are responsible for the affairs of children.
(iii)	You are to perform two (2) hours of unpaid community service at Naura Elementary School each Saturday for the first 2 years of your probation, except for those Saturdays that fall within the Easter Weekend and the Christmas and New Year period, under the Supervision of the Chairman and Peace Officer of Naura Village Court and the Provincial Community Based Correction Officer.

Ordered accordingly.
______________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State 		
L B Mamu, Public Solicitor: Lawyer for the Prisoner