N10888

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 144 OF 2024

THE STATE

V

HEZEKIAH MAIYU

Vanimo: Batari. J
2024: 22nd March

CRIMINAL LAW – sentence – sexual touching – victim under 16 years, aged 12 year – offender pressed against victim’s thighs as she slept, forced her hands onto his penis and fondled her breasts – victim was offender’s niece – existence of a relationship of trust, authority, dependency – seriousness of – comparative sentencing guides – mitigating factors – 4 years imprisonment appropriate – s. 229B (1) (a) (5) Criminal Code.

The offender intruded the victim’s bedroom in the night and pressed against the thighs of the sleeping child. He next forced the victim’s hand onto his genitals and fondled her breasts. The child fled the room and reported the incident to her grandmother. The offender was/is the victim’s uncle. The victim was then 12 years old. 

Held:
1.	The sentencing scheme in s. 229B of the Criminal Code envisages two categories of offences of sexual touching against a child under 16 years and the relative penalty that applies in respect of each category, in the first category where there is no statutory aggravation (s. 229B (1)), and in the second category, there are statutory factors of the child being under 12 years (s. 229B (4)) and there is existing relationship of trust between the accused and the child (s. 229B (5)).

2.	Sentences in the first category will be lesser, but in appropriate cases, the maximum term of 7 years may apply where circumstances of aggravation exist.

3.	Where the victim is under 12 years, or there is existing relationship of trust, the sentencing threshold appears to be higher, consistent with the sentencing policy that offenders meet with severe penalty to protect young children against sexual violations by adults.

4.	The sentencing trend has not changed much in 20 years, and there have been numerous warnings, thus the need to increase in sentencing. 

Cases Cited
The State v Andrew Amid (2004) (Unreported) 
The State v Bradly Maki (2006) N3391 
The State v Caspar Zoromatabia (2005) (Unnumbered) 
The State v Daniel Datnan
The State v Farai [2017] PNGNC 221; N6890
The State v Iume [2019] PNGNC 177; N7886
The State v Joshua Lin (2018) N7818
The State v Kagewa Tenang (2005) N2941 
The State v Kataka [2016] PNGNC 96: N6297
The State v Kayas (2016) N6913
The State v Kiddi Korari [2004] N2553 
The State v Kuse (2011) N4304 
The State v Ndrahiyek [2018] PNGNC 423; N7473
The State v Paul Nelson (2005) N2635
The State v Pokas (2011) N4375 
The State v Rodney Waluka CR NO. 261 OF 2019
The State v Thomas Tulalin (2006) N3006
The State v Torie (2015) N5966
The State v Was [2017] PNGNC 100; N6740
The State v Yape [2016] PNGNC 73; N6316

Counsel
Ms D. Ambuk, for the State
Mr O. Himore, for the Accused

JUDGMENT ON SENTENCE

22nd March 2024

1.	BATARI, J:   Hezekiah Maiyu, yesterday the Court convicted you of sexually touching a child under the age of 16 years in breach of trust and dependency. The child was 12 years old. This is your sentence.
 
2.	The proven facts are brief. Around midnight of 15/06/2023, 12-year-old victim I will refer to as CM, was asleep in her house at Makepa compound in Vanimo when you entered her bedroom. She was alone. You pressed against her thighs, causing her to wake up. Upon seeing you naked next to her bed, she sobbed. You cautioned her to be quiet and identified yourself as, “daddy Maiyu” before pulling her hands onto your penis and stroking her breasts. CM resisted and fled the room. In the nearby house, she related her ordeal to her grandmother, resulting in this Court case.

3.	CM is your elder brother’s adopted child and she had lived with your family in the same compound at Makepa, Vanimo town since childhood.

4.	Your conduct breached s. 229B (1) (a) and (5) of the Criminal Code. Section 229B of the Criminal Code provides:

“(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 Subsections (4) and (5), imprisonment for a term not exceeding seven years.

(2)  For the purposes of this section, “sexual parts” include the genital area, groin, buttocks or breasts 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 scheme of this provision is to differentiate for the purpose of punishment, the seriousness of the offence against a child under the age of 16 years in the first category without statutory circumstances of aggravation, (Subsection (1)) and with statutory aggravating factors spelt out in the second category, in respect of a child under 12 years (Subsection (4)) and where there was an existing relationship of trust, authority or dependency between the accused and the child (Subsection (5)).

6.	The maximum penalty of seven years imprisonment in the first category implies a lesser serious form, type, and degree of sexual touching involving victims between 12 years and 16 years of age. The offence will attract the maximum penalty where factors of threats, physical violence with or without use of weapons and injury are present, or where the act was repeated, or involved more than one person.  Cases having circumstances of aggravation under Subsections (4) or (5) but not charged on the indictment will also fall into this category. The sentences will be lower than the second category of sexual touching under Subsections (4) and (5). In some instances, the sentences will overlap.

7.	Subsections (4) and (5) are intended for the more serious type and form of sexual touching. The punitive provision of 12 years imprisonment envisages greater punishment for sexually touching offences committed in circumstances of aggravation. The two statutory aggravating factors are: (i) the victim is under 12 years, and (ii) there is an existing relationship of trust and dependency between the victim and offender. It follows, that the punishment will be greater than that for the offence committed under Subsection (1).   

8.	This is a case of sexual touching with statutory circumstances of aggravation. The maximum penalty in this category is 12 years imprisonment. It is not mandatory because of s. 19 of the Code.

9.	A useful guide on matters to consider in sentencing sexual touching cases is succinctly set out in The State v Paul Nelson (2005) N2635 by Cannings, J in questionnaire form. I have considered those matters.

10.	I will use the pattern of sentencing from decided cases over the years from 2004 as a guide, drawing from the trend across the board I have been able to access from the PNG Sentencing Database. 

11.	In 2005, in State v. Kagewa Tenang (2005) N2941 his Honour, Justice Kirriwom, when imposing a six-year term on 41-year-old offender who rubbed his penis on the vagina of a 10 year victim, observed:
“Recent cases of similar nature have attracted between 3 and 5 years imprisonment. In the State v. Kiddi Korari (2004) N2553 the offender, a young boy aged 14 years was sentenced to five years after he pleaded guilty to rubbing his fingers around the victim’s vagina. The victim was aged 6 years old and suffered no physical injuries. The other case is the State v. Paul Nelson (2004) N2844, the offender aged 65 years was sentenced to 3 years”.

12.	The following year in, State v. Thomas Tulalin (2006) N3006 where the offender, a church pastor committed two counts of sexual touching of a 10-year-old’s vagina, Lenalia J sentenced the offender to 5 years. Kandakasi J (then) imposed a sentence of 3 three years where the offender touched victim’s vagina with his fingers. The victim was 3 years old: State v. Bradly Maki (2006) N3391. 

13.	 From 2006 to 2011, the sentencing trend has not changed much as represented by, State v. Kuse (2011) N4304 (Canning J), where a 58 year old man pleaded guilty to one count of touching the vagina of a child under the age of 12 years and was sentenced to 4 years. In State v. Pokas (2011) N4375 (Sawong J), a 16 years old boy pleaded guilty to one count of sexually touching a child of 8 years. A term of 3 years was imposed.

14.	In 2014 in, The State v Daniel Datnan (2014) N5837, Cannings J, sentenced a 21 year old offender to 5 years in a case where the offender enticed a 7 year victim into a secluded house, slept on top of her and rubbed his penis against her vagina. 

15.	One case in 2015, an 87 year old grandfather licked the vagina of his grand daughter victim. He was sentenced to 4 years: The State v Torie (2015) N5966 (Toliken J).

16.	In 2016, a term of 4 years was imposed in, State v Yape [2016] PGNC 73; N6316 (Auka AJ) where 25-year-old prisoner lured a 6-year-old victim to his house and touched her vagina with his fingers.

17.	In State v Kataka [2016] PGNC 96; N6297 (Lenalia J) the offender made several failed attempts to sexually penetrate 15-year-old victim due to his state of drunkenness. He instead used his fingers to touch the victim’s vagina. He was sentenced to 4 years. 

18.	In another 2016 case, a sentence of 7 years was imposed on a 17-year-old offender who touched the vagina of a 6-year victim with his penis: The State v. Kayas (2016) N6913 (Polume-Kiele J). 

19.	Year 2017 is represented by two cases. In The State v Farai [2017] PGNC 221; N6890, Koeget J imposed a 4-year sentence on the offender who rubbed his penis against the vagina of 11-year-old victim relative.  In similar case scenario, the offender rubbed penis on the vagina of 15-year-old victim after attempted penal penetration failed. A term of 4 years was imposed: State v Was [2017] (Bona J) PGNC 100; N6740.  

20.	In 2018, in The State v Joshua Lin (2018) N7818 (Kangwia J), a cousin of 13-year-old victim pretended to accompany her home from school. When she resisted his sexual advances, he grabbed and kissed her breasts. His further attempts to sexually penetrate the victim were thwarted by rain. A term of 4 years was imposed. In State v Ndrahiyek [2018] PGNC 423; N7473 Gora J sentenced the offender to 3 years after being convicted of rubbing his penis against the victim’s vagina.  The victim was 14 years old.

21.	In 2019 in, State v Iume [2019] PGNC 177; N7886 (Kangwia J), the offender forced a 14-year-old victim into the nearby bushes, touched her breasts and her vagina. The sentence was 4 years. In The State v Rodney Waluka CR NO. 261 OF 2019 (Numapo J) the offender enticed 15-year-old victim into the cocoa block where he removed her clothes and rubbed his fingers and penis against her vagina. A sentence of 3 years was imposed.

22.	Where the act did not involve touching of the vagina it will attract lower sentence. In, The State v. Caspar Zoromatabia (2005) (Unnumbered) CR. No. 417 of 2005, (Batari J), a family friend asked 13-year-old victim to escort him to the next village in the night. When she suspected his motive and tried to turn back, he grabbed her and fondled her breasts. Sentence: 12 months. In State v. Andrew Amid (2004) (Unreported) CR. No. 1077 of 2004, Lay J imposed 12 months where the offender touched the breasts of his step- daughter on one occasion and pushed his penis against her thighs on the second occasion.

23.	I have also sighted some more recent cases on the PNG Sentencing Database. The cases show the sentencing trend in the second category of sexual touching offences under s. 229B (4) and (5) have remained constant for some time.  Generally, the sentencing range from 2004 appears to have remained within the range of 12 months to 7 years with the common trend being a term within the 3 years to 5 years range with calls and warnings that offenders must meet with severe punishment. Increased penalties will also highlight the court’s disapproval of sexual offences against children.
 
24.	It is also apparent from the available sentencing data, the offence of sexually touching has been escalating rather than abating over the years. Instances of sexually touching and other forms of sexual violations of children can be safely described as most prevalent these days.
 
25.	The facts of this case is a clear example of a disgraceful act of sexual abuse of a relative. A young member of your family unit unashamedly became your envy and target. You have absolutely no regard for her trust and dependency on you when you sexually violated her in her peaceful sleep. And your conduct must have involved some planning because you accosted her at the time she was most vulnerable. CM’s father, your brother, was away drinking and CM’s grandmother slept in the nearby house. CM was alone in the room, and you had earlier expressed some liking for her. You chose that night to carry out your evil enterprise. 

26.	The child victim understood the nature of your act and what you were up to when she resisted. She was no doubt traumatized by your sudden intrusion into her privacy. You put her yet through further trauma when you made her recount her unpleasant ordeal in Court. When you said you are sorry, it did not sound genuine. I think you were more pitiful of yourself than for your conduct.  

27.	No decent human being can ever accept your conduct as normal. It borders on insanity, let alone taking advantage of a child family member to satisfy your lustful craving. 

28.	The law is clear. Those who offend must be punished. It is in the interest of the community and the law-abiding majority that those convicted of breaking the law must meet with severe penalties. 

29.	In sexual offences against children, the need to punish the offender will give the children and the community a sense of justice, security, and protection. Those possessing a propensity to prey upon young children for their own sexual self-gratification ought to be locked away and not allowed to roam freely in the community.

30.	The punishment I will impose should teach you at a personal level the consequences of breaking the law. The general deterrent aspect of sentencing should also be served by warning other like-minded persons, their conduct will not go unpunished when they are caught and convicted.

31.	  Against those considerations are your personal circumstances and factors in your favour from the offence itself.

32.	You are aged 37 years, married with two children. A prior conviction in your antecedent report is unrelated to the offence before this Court. Aside from that, you have lived a trouble-free life. There is nothing much else to say on your background and personal circumstances.

33.	From the offence, luckily for you, no harm was done. The extent of sexual touching was less intrusive and involved minimal violence. You only pressed against the victim’s thighs, forced her to touch your penis and fondled her breasts.

34.	Taking all the facts together, I consider that a term of imprisonment is warranted. A term within 3 to 5 years imprisonment is appropriate.

35.	You are sentenced to 4 years.  I deduct 9 months for the time spent in custody. You will serve 3 years and 3 months imprisonment IHL. I see no reason to suspend the whole or any part of the head sentence.

Sentenced accordingly.

_______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence