N9459

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 681 OF 2021

THE STATE

V

DON LETIMA

Alotau: Koeget, J
2021: 16th July, 2nd August

CRIMINAL LAW –plea of guilty to the offence of sexual touching of under age child – prisoner victim’s step father – breach of trust authority and dependency – big age difference – aggravating and mitigating factors considered – offence committed while under influence of alcohol – what is the appropriate sentence to be imposed – prisoner sentenced to five years in hard labour less time spent in pre-sentence custody 
Facts:
The accused is charged with one count of Sexual Touching of a minor under the age of 12 years. The charge is brought pursuant to Section 229B(1)(a) of the Criminal Code Act Chapter 262 (as amended).

Cases Cited
 The State v Tanang (2005) N2941
The State v Nellson (2005) N2844	

Counsel: 

D. Mark, for the State
C. Namono, for the Accused

SENTENCE

2nd August, 2021
1.	KOEGET J: The victim JL was born on 28th September 2009 at Alotau General Hospital. The accused married the mother of the victim and raised her so he is the step-father.

2.      On the 01st November 2020, the victim JL was sleeping in her room in the family house when the accused after drinking alcohol went into the bedroom, removed the victim’s clothes and touched her vagina with his fingers. She woke up and hit the accused’s hand. 

3.     The accused held the victim’s two legs and threw her against the wall. He left the house and went out. The matter was reported to the Police and he was apprehended and charged with the offence of sexual touching of a minor under the age of 12 years.

Issue
4.     The accused pleaded guilty to the charge and was convicted accordingly. The issue for the Court to determine is what is the appropriate sentence the Court should impose upon him.

5.   The following particulars are considered by the Court to determine the appropriate sentence.

Personal Particulars
6.     He is 37 years of age and is married with three children. The victim is his step- daughter. He attended Martyrs Memorial High School and completed grade 7 in 2001. He returned home to Divinai village and lived as a subsistence gardener.

Aggravating Factors
7.     The age gap between the prisoner and the victim is 26 years old. Such offence is prevalent in Milne Bay Province and in the country. 
8.     He is the step-father of the victim as he is married to the victim’s mother and has a child of his own. He breached trust, authority and dependency. The offence was committed when he was under the influence of alcohol.

Mitigating Factors

9.     He admitted commission of the offence to the police and in court pleaded guilty and saved valuable time of the Court and the victim from embarrassment in giving evidence in Court before the trial judge and subjected to cross examination by the State Prosecutor. He is a first-time offender. He has been in custody for seven months three weeks awaiting disposal of the case.

Sentence
10.     The prisoner married the mother of the victim J.L and raised her up. She looked upon him as a father who provided food, cash to buy store goods, clothes, school fees, medicine etc. She looks upon him for protection from other people especially youths in the village. He breached the trust placed upon him by the victim and the mother. She is now living in fear of the prisoner and does not know who will provide security for her as she grows up to adulthood. 
11.     The prisoner consumed alcohol and entered the victim’s room, pulled her clothes off and used his fingers to touch the victim’s vagina. She woke up hit his hands and the prisoner held the two legs of her and threw her against the wall. The Court have held in the past that when accused persons commit crimes whilst under the influence of intoxicating liquor, they claim alcohol to be an excuse. In this case the prisoner cannot claim drunkardness as an excuse.
12.     The age gap between the prisoner and the victim is twenty-six years. The prisoner is much older and ought to have refrained from committing the crime against his stepdaughter as he raised her as his own and she called him as the father. The penalty under Section 229B(1)(a) of the Criminal Code (as amended) is a imprisonment for a term not exceeding seven (7) years. The victim did not suffer or sustain any injuries. Nevertheless, it is serious because he abused the trust placed upon him by the victim and the mother so he must be punished for the wrong committed upon the victim.
13.    So, the prisoner is sentenced to be imprisoned for a period of five (5) years in hard labour. The pre-trial custodial period of seven months and three weeks are ordered to be deducted and he is to serve the balance of four (4) years four (4) months and one week at Giligili Jail.
Order
1)	The prisoner is sentenced to be imprisoned for five years in hard labour.
2)	The pre-sentence custodial period of seven months and three weeks are ordered to be deducted and he is to serve the balance of four (4) years and four months, one week at Giligili Jail.

Accordingly sentenced.
____________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused