Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Mormor [2021] PGNC 585; N9401 (27 July 2021)

N9401

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 98 OF 2020

THE STATE

V

JOEL MORMOR

Kokopo: Suelip AJ
2021: 20^th May & 27^th July

CRIMINAL LAW – sentence – trial – guilty – sexual touching – licking of vagina – aggravated sexual touching – child under 12 years – prisoner considered mentally ill – more aggravating factors – consideration of submissions – sentence of 4 years less pre-sentence term – balance of sentence wholly suspended with conditions but only after evaluation by a psychiatric of prisoner’s mental health

Cases Cited

Goli Golu v. State [1975] PNGLR 653
State v. Penias Mokei (No.2) N2635
State v. Peter Anis (2018) N7155
State v. Thomas Tukaliu (2006) N3026
State v. Patrick Peter Mova (2011) N4523
State v. Misiru Inabin (2018) N7374

Legislations

Criminal Law (Compensation) Act 1991

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE

27^th July, 2021

1. SUELIP AJ: On 18 November 2020, you, Joel Mormor were found guilty on one count of sexual touching of a child pursuant to section 229B(1)(a) of the Criminal Code.

2. This is now my decision on sentence.

Facts

3. These are the facts upon which you were convicted. On 14 September 2019, between 12 pm and 2 pm, you, a 29-year-old male, and the complainant, a 7-year-old girl were at Vudal Block in the Gazelle District of East New Britain Province. As the child was walking to her house after going to a trade store, you approached her. You grabbed hold of her hand and took her into the nearby bushes. In the nearby bushes, you laid the child on the ground, removed her clothes, and then licked her vagina several times with your tongue. You then released the child, and she went home. Your actions contravened section 229B(1)(a) of the Criminal Code in that you, for sexual purposes touched with your tongue the sexual parts, namely the vagina, of a child under the age of 16 years old. The offence you committed is aggravated by Section 229B(4) of the Criminal Code because at that time, the child was under the age of 12 years old, being 7 years old.

The offence

4. Section 229B of the Criminal Code provides:

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) compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person’s own body,

is guilty of a crime.

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

(2) For the purposes of this section, “sexual parts” including the genital are, groin, buttocks or breast of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.

(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.

5. The penalty subscribed under sections 229B(1)(a) and 229B(4) is imprisonment for a term not exceeding 12 years.

6. It is also trite law that the maximum penalty is reserved for the worse type of cases. See Goli Golu v. State [1975] PNGLR 653.

Issues

7. The issue is what should be the appropriate sentence.

Personal particulars

8. Before discussing what your sentence should be, let me revisit your personal particulars so we know what your background is. You are now 31 years old. At the time of committing the offence, you were 29 years old. You are married with one child who is about a year old. You are very educated as you have attained a Certificate in residential Health Extension Officer in 2004 from Divine Word University. Your level of understanding and appreciation of the seriousness of the offence you committed is therefore top notch. You reside at Balil Section at Vudal Block, Vudal ward of Inland Baining LLG, Gazelle District, East New Britain Province.

Comparable case authorities

9. I find the considerations in State v. Penias Mokei (No.2) N2635 helpful in deciding the appropriate sentence and I adopt these considerations as follows:

(a) Is the offender a first-time offender?

(b) Did the offender plead guilty?

(c) The age of the victim and the difference between the offender and the victim’s age?

(d) Was there a relationship of trust, dependency or authority between the offender and the victim or, if there was, how close was the relationship?

(e) Was there any consent?

(f) Did the offender use threats of violence or actual violence?

(g) Did the offender cause any physical injury?

(h) Was this of one-off incident or was the offender’s actions part of a pattern of persistent sexual abuse?

(i) Did the offender express any remorse?

(j) Has the offender caused any further trouble with the victim or her family?

10. The case referred by both counsels which is about similar to the circumstances of this case, and is from the local area is State v. Peter Anis (2018) N7155 where the accused pleaded guilty to one count of sexual touching pursuant to section 229B(1)(a)(4) of the Criminal Code. The victim was only 1 year and 7 months old. The accused was sentenced to 4 years imprisonment and the sentence was fully suspended with conditions.

11. Counsel for the State referred to several case authorities but the one almost the same as this case is State v. Thomas Tukaliu (2006) N3026. This is also a local case where the accused pleaded guilty to 2 counts of sexual touching of his 10 year old niece. Compensation was paid to the family and he was sentenced to 5 years imprisonment of which 3 years was suspended with conditions.

12. Also, in the case of State v. Patrick Peter Mova (2011) N4523 in Bialla, West New Britain Province, the Court sentenced the prisoner to 5 years imprisonment in hard labour on a charge pursuant to section 229B(1)(a)(4)(5) of the Criminal Code after pleading guilty. The prisoner is the victim’s uncle.

13. There is another local case referred to by the State. This is case of State v. Misiru Inabin (2018) N7374 where the prisoner was charged pursuant to section 229B(1)(a)(4)(5) of the Criminal Code and after a trial, he was convicted of sexual touching of his granddaughter. He was sentenced to 5 years imprisonment in hard labour with 1 year suspended. In that case, a custodial sentence was ordered.

14. Both counsels agree that a sentence of 4 to 5 years imprisonment is the appropriate sentence for you.

15. The mitigating factors in your favor are you are a first-time offender and there was no injury sustained by the young victim.

16. Against you the aggravating factors include the age disparity of 22 years between you and the victim, the victim having to relive the ordeal at trial, the victim being traumatized and the prevalence of the offence in society, especially in this province.

17. In the pre-sentence report, only your views and that of your mother and the victim’s grandfather were engaged. Your mother supports your intention to pay compensation for K1000 cash and 150 fathoms of shell money which is equivalent to K1500, a total of K2500 to the victim and her family. She also wants you to be placed on probation.

18. The victim’s grandfather is a retired United Church pastor and although he feels stronger against you for what you did to his granddaughter, he is resigned to forgiving you but demanded K5000 as compensation. He says the time you have already spent in custody with payment of K5000 compensation is sufficient to punish you for the crime you committed.

19. He also wants an order for counselling so you can receive good advice on being a good citizen of the community.

20. I also note in the pre-sentence report that you have been observed to suffer from mental illness and I recall prior to your trial, counsels raised that issue before me. However, after having conversed with you in Court, I found that you are of sound mind but that does not completely erased the possibility of an existing condition as I am no expert in mental health.

Sentence

21. The pre-sentence is favorable to you in that your mother says you are a good person who assists in household chores for your family. You are currently unemployed due to redundancy, but you can seek employment elsewhere. Further, your mother is willing to assist you pay compensation for K1000 cash and 150 fathoms of shell money. You say that you have 300 fathoms of shell money saved at home and this will go towards compensating the victim and her family.

22. The victim’s grandfather is also lenient on you because he was a former clergyman for the church, and he is willing to forgive you, but you must pay the highest compensation amount allowed in this jurisdiction in the sum of K5000. Section 5(2)(b) of the Criminal Law (Compensation) Act 1991 provides for this maximum amount of compensation.

23. I share the view of my brother, Anis J in State v. Misiru Inabin (supra) that any form of violence against children is a very serious matter. Therefore, the penalty to be imposed on the offender must be one that deters the offender from recommitting the same offence or similar offence. This is also because your state of mind was observed on previous occasions in Court and now in the pre-sentence report.

24. I think it will be remiss of me to order you to be placed on probation or suspend any term of sentence imposed on you until your mental state is assessed and reported.

25. I am however, prepared to place on in light labour until such time you are evaluated by an expert in mental health.

26. In the premises, I sentence you to 4 years imprisonment in light labour. Your pre-sentence term of 1 year and 6 months will be deducted and subject to a favorable evaluation by a psychiatrist, I wholly suspend the balance of your sentence on the following conditions: -

(i) You will pay K1500 cash and the equivalent of K1500 in fathoms of shell money, a total of K3000 within 2 months of your release.

(ii) you will go to church every Sunday and submit to counselling from your local church pastor or priest once every week for the balance of your suspended sentence.

(iii) you will not commit a similar or another offence whilst on suspended sentence.

(iv) you will not live elsewhere except at your residence at Balil section at Vudal Block during your suspended sentence.

(v) you will not leave the province without leave of this Court

(vi) should you fail to comply with any of these conditions, you will be arrested and return to this Court to explain why you will not serve the rest of your sentence in prison.

27. The Orders for your sentence orders are therefore as follows:

(i) You are sentenced to 4 years imprisonment in light labour.

(ii) Your pre-sentence term of 1 year and 6 months is deducted.

(iii) You will be evaluated by a psychiatrist at the nearest hospital as soon as possible.

(iv) Upon a favorable report from the psychiatrist, your sentence is wholly suspended on strict compliance with conditions.

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