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State v Daniel [2025] PGNC 249; N11411 (21 July 2025)

N11411

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO 1131 & 1132 OF 2024

BETWEEN:
THE STATE

AND:
JEFF DANIEL

LAE: WAWUN-KUVI J
16, 18, 21 JULY 2025

CRIMINAL LAW-SENTENCE-Guilty Plea-2 counts of sexual touching, 229B(1)(a)(4) Criminal Code- Victims under the age of 12 years, aged 4 and 2 years old-offender touched both victims vagina with his fingers.

Cases cited
Talei v State [2025] PGSC 26; SC2716
Koribiseni v State [2022] PGSC 90; SC2296
Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730
State v Winston [2003] PNGLR 5
Public Prosecutor v Hale [1998] SC564
Public Prosecutor v Tardrew [1986] PNGLR 91
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Lialu v The State [1990] PGSC 16; [1990] PNGLR 487
Goli Golu v The State [1979] PNGLR 653
State v Talibe [2025] PGNC 21; N11151
State v Bobby [2022] PGNC 273; N9744
State v Kosono [2016] PGNC 423; N6915
State v Kayas [2016] PGNC 422; N6913
State v Yame [2010] PGNC 161; N4131
State v Bipi [2009] PGNC 55; N3608
State v Rome [2007] PGNC 215; N5048
State v Nelson [2005] PGNC 113; N2844

Counsel
E Kave for the State
J O Steven for the offender

DECISION SENTENCE

1. WAWUN-KUVI, J: The offender was homeless and was given a home by JT’s parents. The kind gesture was abused by the offender when he approached JT then aged 4 years old and another female child, JJ age 2, and told them to sit facing him. The girls were playing so they followed the offender’s instructions. As they sat facing him, he inserted his each of his hand through the girls’ trousers and fondle their vagina with his fingers. A female relative was walking by and observed the offender touching the girls. She called out to the girls which startled the offender. He was reported to police and was arrested and charged.
   
2. He has now pleaded guilty to two counts of Sexual Touching under s229B(1)(a)(4) of the Criminal Code. I must decide the appropriate penalty.

Penalty

3. The maximum penalty is 12 years.
   
4. The maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.

Sentencing range

5. Thew State submits for a range between 2- and 6-years imprisonment. That he be sentenced to 3 years for each count and the sentence be made cumulative.
   
6. Counsel for the offender submits for a range between 1- and 3-years imprisonment. And concedes with the State that a sentence of 3 years is imposed to be cumulative.
   
7. Counsels have submitted the following cases:
   
8. State v Bobby [2022] PGNC 273; N9744, Miviri J: The offender was a juvenile. He pleaded guilty to sexual touching of his 5-year-old cousin. He was 15 years old. On the pretext of cleaning the child, he took her into the room, removed her clothes and touched her vagina. He was sentenced to 3 years imprisonment which was wholly suspended on conditions.
   
9. State v Kosono [2016] PGNC 423; N6915, Polume-Kiele J: The offender a 48-year-old man pleaded guilty to touching the vagina of a 6-year-old child. He was sentenced to 7 years imprisonment.
   
10. State v Kayas [2016] PGNC 422; N6913, Polume-Kiele J: The offender pleaded guilty touching the vagina of a 6-year-old child with is penis. The offender was 17-year-old. He and the victim were at a church camp. When all the children were asleep, he approached the complainant and touched her vagina with his penis. He was caught when the child called out and woke the other children. He was sentenced to 7 years imprisonment.
    
11. State v Yame [2010] PGNC 161; N4131: This was a case involving charges of sexual assault under s 349 and rape under s 347(1) of the Criminal Code.
    
12. State v Bipi [2009] PGNC 55; N3608, Cannings J: The offender pleaded guilty to sexual touching of one victim and sexual penetration of another victim. The offender was 15 years old. The offender was living with the children in their family home. For the count sexual touching, the offender took the 5-year-old victim into room, removed her clothes and touched her vagina. He was sentenced to 2 years imprisonment.
    
13. State v Rome [2007] PGNC 215; N5048, Cannings J: The offender pleaded guilty to sexual touching and sexual penetration. He was residing with the 10-year-old child’s parents. He arrived home and found the child alone. He touched the child penis and forced the child to touch his penis. He then forcefully inserted his penis into the child’s anus. He was sentenced to 3 years for sexual touching.
    
14. State v Nelson [2005] PGNC 113; N2844, Cannings J: The offender pleaded guilty to the sexual touching of a 12-year-old child. He was 65 years old. He grabbed the child and touched her vagina when she was sent by her parents to follow up on a debt. Both the offender and the child were known to each other and lived in the same compound. The offender was sentenced to 3 years imprisonment.
    
15. I have found more recent comparable cases:
    
16. Talei v State [2025] PGSC 26; SC2716: The offender pleaded guilty to sexual touching. He grabbed his 8-year-old granddaughter and forcefully rubbed his penis on her vagina. He was sentenced to 15 years imprisonment. On review it was held that his sentence was in excess of the prescribed maximum penalty and a sentence of 10 years imprisonment was substituted.
    
17. Koribiseni v State [2022] PGSC 90; SC2296: The offender was a teacher. He touched with his fingers the vagina of his 10-year-old student. He pleaded guilty and was sentenced to 7 years imprisonment. On review, the sentence was reduced to 5 years imprisonment.
    
18. State v Talibe [2025] PGNC 21; N11151, Miviri J: The offender was convicted following a trial. He is the father of the 8-year-old child victim. He touched her vagina with his finger and sexually penetrated by inserting his penis into her vagina. He was sentenced to 10 years imprisonment for sexual touching.
    
19. The more recent cases show that on guilty pleas by first time offenders, the sentences range between 7- and 10-year imprisonment.

Antecedent

20. According to the offender’s antecedent report, he is 39 years old and hails from Eastern Highlands Province. He is estranged from his wife and has two children of whom he does not know their age.
    
21. He is a member of the Lutheran Church.
    
22. He completed Secondary School at Tairora in Eastern Highlands Province. He has a certificate for Carpentry and Joinery at Kamaliki Technical College. He worked at Anis Construction and his employment before arrest was with NARI.
    
23. He was living at NARI Compound at 10 Mile at the time of the offence.

Allocutus

24. The offender stated that he only touched the victims and did not rape them.

Culpability

25. The offender did not intentionally seek out the victim. It appears to be a crime of opportunity. It was not planned or premediated but instead it was an offence where the offender allowed his deviant sexual urges to take hold of him. He is however a father of children, a grown adult man, educated up to college level and employed. He is a member of the Lutheran Church. The victims were very young, aged 4 and 2. He took advantage of their vulnerability. These factors demonstrate that the offender was aware of his conduct and aware both legally and morally that it was wrong. His demeanor and tone of his voice in allocutus demonstrated deep shame. To my mind this indicates a higher degree of culpability.

Harm

26. The victim JT demonstrates behaviour that is inappropriate for her age. Her parents’ marriage is being affected because of the blame on each other over the incident.
    
27. While there is nothing from the second victim, these were very young children subjected to the intrusion of their most intimate parts. I have very little doubt that there is some psychological injury.

Aggravating Factors

28. I have considered the submissions by counsel and find the following to be aggravating:
    
    • The victims were of a very tender age, being 4 and 2 years old.
    • The prevalence
    • The offender was given accommodation by one of the victim’s family.

Mitigating Factors

29. In mitigation:
    
    • The offender has no prior convictions.
    • He pleaded guilty therefore saving the victims from the trauma of giving evidence.

Consideration

30. This is a heinous crime committed against the most vulnerable members of society. Both children are just out of infancy and are toddlers. It is only a depraved mind that would see children of that age as sexual objects. The offence is prevalent, and punitive sentences must be imposed to demonstrate that society does not condone this type of perverse and abhorrent behaviour.
    
31. Considering, the circumstances of the case, the offender’s allocutus, his antecedent, his culpability, the harm, the mitigating and the aggravating factors, the prevalence of the offence, I find that a sentence of 8 years imprisonment is appropriate for both counts.
    
32. The next question is whether the sentence should be made cumulative or concurrent. In Koribiseni v State [2022] PGSC 90; SC2296, the Court referred to Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 which state that:
    
    1. “where two or more offences are committed in the course of a single transaction the sentences should be concurrent;
    2. where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative;
    3. after deciding whether sentences should be concurrent or cumulative, the court must consider whether the total sentence is just and appropriate, and if it is not, the court must vary one or more sentences to get a just total (the totality principle).”
       
33. In Koribiseni, there were two different victims. The Supreme Court noted that all the offences were committed within a relatively short period, one after the other, and during a single transaction or purpose, namely sexual abuse of pupils. For that reason, the Court found that it was an error to have sentenced the accused to a cumulative sentence. His sentence was subsequently made concurrent.
    
34. Similarly, this case involves two separate victims. However, the circumstances of the case show that the offence were committed during a single transaction and as such the sentences are made concurrent. The offender shall serve 8 years imprisonment.
    
35. The offender has been in custody since 1 April 2024. He has been in custody for 1 year, 3 months and 3 weeks. Under the powers granted to me pursuant to s 3(2) of the Criminal Justice (Sentences) Act 1986, I deduct the period spent in custody. The offender shall serve 6 years, 8 months and 1 week.
    
36. The next question is whether any part of the sentence should be suspended. I have considered the authorities in Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730, State v Winston [2003] PNGLR 5, Public Prosecutor v Hale [1998] SC 564, The State v Kagai [1987] PNGLR 320, Public Prosecutor v Tardrew [1986] PNGLR 91 and in applying them to the present case, find there is nothing before the me that supports suspension. The offence is prevalent and serious and calls for a punitive sentence to serve as both personal and general deterrent.

Orders

37. The Orders of the Court are as follows:
    1. For count 1 on a charge of sexual touching under s229B(1)(a)(4) of the Criminal Code the offender is sentenced to 8 years imprisonment.
    2. For count 2 on a charge of sexual touching under s229B(1)(a)(4) of the Criminal Code the offender is sentenced to 8 years imprisonment.
    3. The sentences for counts 1 and 2 are made concurrent and the offender shall serve a sentence of 8 years imprisonment in light labor at Buimo Correctional Institution.
    4. Pursuant to s 3(2) of the Criminal Justice (Sentences) Act 1986 the pre-sentence custody period 1year, 3 months and 3 weeks is deducted, and the offender shall serve the balance of 6 years, 8 months and 1 week at Buimo Correctional Institution in light labour.
    5. The CR files are closed.

________________________________________________________________
Lawyer the State: The Public Prosecutor
Lawyer for the offender: The Public Solicitor