State v Kaimagun [1998] PGDC 23; DC46 (18 December 1998)

Unreported District Court Decisions

[1999] PNGDC 4 - STATE V RAYMOND KAIMAGUN

[1999] PNGDC 4

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 64 OF 1998

PARTIES:  THE STATE

INFORMANT

V

RAYMOND KAIMAGUN

DEFENDANT

Madang

Bidar PM

16 December 1998

18 December 1998

CRIMINAL LAW — Particular offences — unlawful and indecent assault "indecency" — measure of standards of modesty of ordinary citizen of area at the time of offence—Criminal Code Act s349.

WORDS AND PHRASES — Indecency — Unlawful and Indecent Assault standards for Criminal Code Act s349.

Cases Cited

The State v Andrew Tovue [1981] PNGLR 8

The State v Aubafo Feama and Other [1978] PNGLR 301

R v Allan Evi of Bereina [1975] PNGLR 30, R v Corbett [1903] QSR 246

Legislation cited

Criminal Code Act (Ch262) s28, s29, s349

Representation

Counsel/Representative

Informant:  Mr M Ruarri

Defendant:  Appeared in person

Lawyers/Representative

Informant:  Public Solicitor

Defendant:  Appeared in person

18 December 1998

BIDAR PM:

N1>[1]      Raymond Kaimagun, you have pleaded guilty to the information which charged that on 12 October 1998, you unlawfully and indecently assaulted one, Theresia Saktum, contrary to s349 of the Criminal Code Act.

N1>[2]      The prescribed penalty is a term of imprisonment for a period note exceeding two years.

N1>[3]      I will sentence the defendant on the following facts:

N1>[4]      On 12 October 1998, the defendant had been drinking with a friend at Saidor Station, during the earlier part of that evening. He was somewhat affected by liquor and drunk. At about 11 o'clock the same night he entered Saidor Health Centre labour ward. There were women admitted in the ward including the victim and her mother. The victim was admitted after having had a miscarriage.

N1>[5]      By then the station generator had been shut off at 10 pm, as is commonly the practice in all out stations. When the defendant entered the ward at 11 pm, it was dark. He approached the victim's mother and pointed to the victim indicating he wanted to see her. The victim had to be woken up as she was asleep. When she woke up, the defendant led her into the labour room which had no light and was dark. The defendant made her lay on the bed. He then lifted her skirt up to her stomach, touched her vagina and pushed his fingers in and out of her vagina. The victim realised what was happening to her and she called out to her mother and told her what the man was doing to her. At the same time, the health worker on duty walked into the ward.

N1>[6]      When he was told that a man and the victim were in the labour room, he sought assistance from others to apprehend the man. The defendant after issuing threats that he had a gun, broke out through the laundry room and decamped. He was subsequently arrested by police and charged with this offence.

N1>[7]      The labour ward was generally dark at the time, except for a woman who had a lantern burning by her bedside, when defendant entered the ward. His identity was difficult to make out.

N1>[8]      In my view, it was a case of impersonation of either a doctor or other health worker. Even the victim's mother was convinced that the defendant was a doctor on duty who wanted to check her daughter, and she woke her from her sleep.

N1>[9]      It is clear that the assault on the victim was not authorised or justified and not excused by law. There is no suggestion defendant is either a doctor, nursing officer or any other health worker.

N1>[10]    What amounts to "indecency" depends, I think, on standards of modesty of the ordinary citizens of the area, at the time the act occurred. (See The State v Andrew Tovue [1981] PNGLR 8.) Standards of decency vary from place to place and from time to time. (See discussions by Prentice J (as he then was) in The State v Aubafo Feama and Others [1978] PNGLR 301 at 306-312.) I agree with the above authority that there is no uniform blanket, standard of decency yet applicable throughout Papua New Guinea, though, that view was expressed some twenty (20) years ago.

N1>[11]    This offence was committed at Saidor Health Centre Ward. I have no doubt the assault on the victim in the manner revealed by the facts is clearly indecent when applying the modesty standard in Madang Province.

N1>[12]    In the record of interview, the defendant raised intoxication as the major contributing factor to his actions on the night in question.

N1>[13]    The issue is considered to see if defendant had a defence:

N1>[14]    Section 29 of the Criminal Code is in these terms:

N2>"(1)     Section 28 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused, without intention on his part, by drugs or intoxicating liquor or by any other means.

N2>(2)      Section 28 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied.

N2>(3)      When an intention to cause a specific result is an element of any offence, intoxicating whether complete or partial and whether intentional or unintentional may be regarded for the purposes of ascertaining whether such an intention in fact existed."

N1>[15]    S29 can be seen as containing basically  two provisions relating to intoxication. Intoxication can be a defence provided it is not intentionally caused and if it results in disorder of mind of a certain character. Section 29(3) provides a defence whether intoxication was intentionally caused or not to those crimes in which intention to cause a specific result is an element of the offence. The whole layout and content of s29 is to provide an extent to which intoxication may be used as defence in regard to all the offences in the Criminal Code. See Regina v Allan Evi of Bereina [1975] PNGLR 30 at 36-37.

N1>[16]    This, it seems, was the understanding of the draftsman of the Criminal Code, Sir Samuel Griffiths, which appears from the direction he gave to the jury in R v Corbett [1903] QSR 246 at 249. His Honour summarised the effect of the Code provisions as to intoxication in these words:

"It was suggested by counsel that if the prisoner was so intoxicated that he did not know what he was doing at the time, he is not criminally responsible for Gillespie's death. That is not the law, and never was the law. Drunkenness is never a defence unless it amounts to unsoundness of mind. No one can escape liability merely because he is intoxicated. If you come to the conclusion that the prisoner was so intoxicated that his mind was absolutely disordered, and he was thus deprived of capacity to understand what he was doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act with which he is charged, you may be able to find him not guilty on the ground of insanity. But if he intentionally caused himself to become intoxicated, that defence is not open to him. It is, however, a defence if his mind was so disordered as to be unsound within the meaning of s27 of the Criminal Code (s28), and if this condition was caused by intoxication which arose without any intention on his part."

N1>[17]    Our Criminal Code which was adopted from Queensland Criminal Code, has exactly the same wording. S28 and s29 of our Code is verbatim with Queensland Code.

N1>[18]    I am therefore of the opinion that the defendant in this case had no defence open to him on a charge of unlawful and indecent assault under s29 of the Code, when in fact, he intentionally caused himself to be intoxicated.

N1>[19]    In considering your sentence, at the outset, I consider your case does not attract imposition of maximum custodial sentence.

N1>[20]    I take into account these mitigating factors on our sentence:

N2>(a)      You pleaded guilty thus saving time and expense of trial.

N2>(b)      Your expression of remorse which I have no reason to doubt its genuineness.

N1>[21]    Some of the difficulties your family would face if you get incarcerated are natural consequences of getting into trouble with the law and I do not consider those consequences as mitigating factors.

N1>[23]    As against you, you have a prior conviction in the National Court only this year for an offence not related to this.

N1>[24]    Your case was that of impersonation of a doctor or health worker: in fact you are neither a doctor nor health worker. The victim realised you were not a doctor when you touched her private parts and penetrated her vagina with your fingers.

N1>[25]    Taking into account the various factors I have referred to and all the circumstances of the offence, I conclude that a period of custodial sentence is appropriate.

N1>[26]    I therefore convict the defendant and sentence him to imprisonment for a period of twelve (12) months with hard labour. I deduct two (2) months for the period in pre-trail custody from the head sentence. The defendant is to serve the remaining sentence of ten (10) months with hard labour.

Lawyer for the State:  Public Solicitor

Defendant:  appeared in person