State v Nelson [2005] PGNC 113; N2844 (25 May 2005)

N2844

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 62 0F 2004

THE STATE

V

PAUL NELSON

KIMBE: CANNINGS J
5, 25 MAY 2005

SENTENCE

CRIMINAL LAW – indictable offence – Criminal Code, Division IV.2A, Sexual Offences Against Children – Section 229B, sexual touching – sentence on plea of guilty – offender aged 65 at time of offence – child aged 12 years – lack of consent – offender acted alone – no weapons used or aggravated physical violence – no physical injury – no existing relationship of trust –isolated incident – offender did not surrender – cooperated with police – no trouble caused with complainant since the incident – nothing tangible done towards repairing his wrong – determination of maximum penalty – no expression of remorse – first offender – not a youthful offender – starting point for head sentence – new law – few precedents – identification of relevant considerations – application of relevant considerations – sentence of 3 years – minimum of 1 year must be served – balance of 2 years may be suspended subject to conditions.

Cases cited:
The State v Eddie Trosty (2004) N2681
The State v George Taunde (2005) N2807
The State v John Ritsi Kutetoa (2005) N2814
The State v Kemai Lumou (2004) N2684
The State v Mark Kanupio and Others (2005) N2800
The State v Pennias Mokei (No 2) (2004) N2635
The State v Peter Lare (2004) N2557
The State v Titus Soumi (2005) N2809

Counsel:
L Rangan for the State
O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to the offence of sexually touching a child under the age of 16 years.

BACKGROUND

Incident

The incident giving rise to the charge took place at Kimbe, West New Britain, in 2003.

Indictment

On 5 May 2005 the accused was brought before the National Court and faced the following indictment:

Paul Nelson of Matupit, Rabaul, in Papua New Guinea, stands charged that he on the 26th day of September 2003 at Kimbe ... for sexual purposes with his fingers touched the vagina of [the complainant], a child under the age of 16 years.

The indictment was presented under Section 229B of the Criminal Code (sexual touching).

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

Between 3.00 and 4.00 pm on 26 September 2003 the accused was at his house in Kimbe. The complainant, a girl aged 12 years, who was known to him, came inside his house. He then touched her vagina with his fingers, for sexual purposes.

Conviction

The accused said that it was true that he touched the complainant in the manner alleged but he did not intend to have sex with her. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. I concluded that, though he might not have intended to have sex in the sense of introducing his penis into the girl’s vagina (see the definition of "sexual penetration" in Section 6 of the Criminal Code), he had touched her sexual parts for sexual gratification. All elements of the offence were present. He is now referred to as the offender.

Findings

The offender pleaded guilty to a general outline of facts. So I need to make some more specific findings for sentencing purposes. Particularly regarding things like consent, force, threats and psychological harm to the child. I have examined the depositions and, as the offender has pleaded guilty, I must give him the benefit of any reasonable doubt on factual matters relevant to penalty. (The State v Mark Kanupio and Others (2005) N2800, National Court, Cannings J: a case in which five young men pleaded guilty to the manslaughter of an unarmed man, who they thought, wrongly, was armed.) I find that:

• Both the offender and the complainant have lived at the Kimbe General Hospital residential compound for several years. They live in separate houses and they are not related. The offender’s wife works at the hospital, as does the complainant’s father. The offender was born in 1938, making him aged about 65 at the time of the incident.
  
• On the day in question the complainant went to see the offender as he owed her family some money, about K20.00, for a chicken. He did not have the money to pay her and told her to tell her parents it would be repaid soon. In his record of interview the offender admitted holding and rubbing the complainant’s vagina with his forefinger, three times. He denied using force and denied telling or forcing the complainant to hold his penis or testicles. The complainant’s version of events is very different. She says in her police statement that he used force and held one of his hands over her mouth to stop her screaming. I am not prepared to find that this was a consensual act. That would be giving the offender the benefit of more than a reasonable doubt. However, I find that there was no aggravated physical violence and that no weapons were used by the offender to threaten the complainant.
  
• The complainant alleged in her police statement that this was not the first time this sort of thing had happened. He had done it on a number of occasions over a period of three years, she claimed. However, there is no evidence of that, and the offender has not pleaded guilty to any course of conduct. So I find that this was an isolated incident.
  
• I have looked at the medical report. There is no evidence that the complainant suffered physically. There is, however, a suggestion that she has suffered psychologically and I conclude that I cannot give the benefit of the doubt to the offender on that issue. Being only 12 years old at the time, it is inevitable that she would have suffered psychological harm.
  

ANTECEDENTS

The offender has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I am 68 years old. My condition is not very good. I get sick all the time. I am a licensed plumber and I can help the community with any plumbing work. I have five children and five grandchildren and they need to be looked after. My wife, who is a nursing sister, has an illness with her head. She has problems with her memory and I need to look after her. That is all.

RELEVANT LAW

Section 229B

Section 229B states:

(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.

Maximum penalty

In the present case the conviction is based on Section 229B(1)(a). The State has not alleged any aggravating circumstances under Sections 229B(4) or (5), ie the child was not under the age of 12 years and there was no existing relationship of trust, authority or dependency, as defined by Section 6A(2) of the Criminal Code. Therefore the maximum penalty is seven years imprisonment.

Discretion

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

• a shorter term of imprisonment may be imposed (Section 19(1)(a)); or
  
• a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the offender can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or
  
• the offender may be given a ‘good behaviour bond’ (Section 19(1)(d)); or
  
• the offender can be discharged and the sentence postponed (Section 19(1)(f)); or
  
• the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).
  

SIGNIFICANCE AND PURPOSE OF NEW LAW

As I noted in a recent Wewak case, The State v Pennias Mokei (No 2) (2004) N2635, substantial amendments were made to the Criminal Code aimed at protecting children against sexual exploitation and abuse. The People of Papua New Guinea decided through their duly elected representatives in the National Parliament to change the law and express their abhorrence of this sort of conduct. The People have indicated that they will not tolerate children being abused, particularly by those in a position of trust. This is recognition of the central role that children play in all societies and cultures in Papua New Guinea. In Papua New Guinea children are treated like kings and queens. They are the future of Papua New Guinea and the People depend on them and their upbringing.

SUBMISSIONS BY DEFENCE COUNSEL

Mr Oiveka submitted that the offender has pleaded guilty, therefore saving the time and expense of a trial. He has also prevented the necessity of the complainant being required to relive her ordeal in public and the embarrassment associated with doing that. He is an old man and little purpose would be served sending him to gaol. His plea of guilty should be regarded as an expression of remorse. He has cooperated with the police and has never denied that he did something wrong. A lenient sentence is called for.

SUBMISSIONS BY THE STATE

Mr Rangan submitted that the offender should be sentenced in a way that reflects the policy underlying the new law. This is a serious case. Small girls need to be protected. There was a very large difference between the age of the offender and the age of the complainant. There was no consent and it is evident that some element of force was used by the offender. Though there was breach of a relationship of trust alleged, the offender was nevertheless in a responsible position in that he was an older man living in the same community as the complainant and someone who should have been able to be trusted. In his allocutus the offender did not take the opportunity to apologise to the complainant. There was concern for himself and his wife shown, but none for the complainant. He is a plumber by trade and would be an asset in the gaol.

PRE-SENTENCE REPORT

I requested and received a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe office of the Community Correction and Rehabilitation Service.

The report confirms that the offender is living with his wife at the Kimbe Hospital residential compound. His wife has been retrenched and once she receives her final entitlements they will be moving out and probably settle in the Hoskins area at his wife’s village, Valoka. The report paints a poor picture of the offender’s marriage and suggests that he has little support in the immediate family or the community. If he were required to pay compensation, his family would have difficulty contributing. The offender is a plumber by trade, having obtained a plumbing certificate from Iduabada Technical College in 1962. He was employed from 1963 to 1982 and has lived in Kimbe since 1976. He is unemployed and has no regular income and little cash other than what his wife gives him.

The complainant was interviewed and says that she has stopped going to school because other people have found out about this incident and the children at school were teasing her. She wants the offender to move out of the hospital compound. The complainant’s mother and father were also interviewed. The mother said that she and her husband had tried mediation and asked for K2,500.00 compensation plus one pig. But nothing has been paid. The father confirmed that his daughter had faced problems at school arising from this incident. They had tried mediation but the offender and his family were not cooperative. The offender’s brother-in-law and a former village councillor at his wife’s village were also interviewed. They are not in a position to assist. They say that the offender has not set up his family at his wife’s village, as he should have done. The report notes that the offender has not shown remorse or a willingness to reconcile. Because of his physical condition he may not be able to comply with a community service order. He has no support available to him from his family or the community. He is not a suitable candidate for probation supervision.
DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the appropriate head sentence, in terms of years?
  
• step 2: should all or part of the sentence be suspended?
  
• step 3: if all or part of the sentence is suspended, what conditions should be imposed?
  

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?

Approach

In setting an appropriate head sentence I will take this approach:

• first, I will identify an appropriate starting point or reference point;
  
• secondly, I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point; and
  
• thirdly, I will apply those considerations to the facts of the present case.
  

Starting point

The law recognises that the crime of sexual touching of a child is less serious than sexual penetration. As the maximum is 7 years and there are few if any reported cases providing sentencing guidelines, I will use 7 years as a starting point.

By contrast, a number of cases on Section 229A (engaging in an act of sexual penetration with a child under 16) have been reported. I summarise them here to give an idea of the sort of penalties that have been imposed under the new law:
TABLE 1: SENTENCES ON SECTION 229A –
SEXUAL PENETRATION OF A CHILD UNDER THE AGE OF 16 YEARS

No	Case	Details	Sentence
1	The State v Peter Lare, (2004) N2557, Kandakasi J, Goroka	Offender aged 40 charged with one count of sexual penetration – complainant, a girl, aged 12 – offender was the girl’s adopted father – no consent – no aggravated physical violence, but offender passed sexually transmitted disease to complainant – part of pattern of persistent abuse over a period of 2 years – serious betrayal of trust – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender – offender labelled a sexual predator.	20 years
2	The State v Pennias Mokei (No 2), (2004) N2635, Cannings J, Wewak	Offender aged 33 charged with one count of sexual penetration – complainant, a girl, aged 13 – offender was the girl’s uncle – no consent – no aggravated physical violence – isolated incident – serious betrayal of trust – offender cooperated with police – pleaded not guilty – expressed remorse – no compensation attempted – first offender – no trouble caused with complainant or family since commission of offence.	15 years
3	The State v Eddie Trosty, (2004) N2681, Kandakasi J, Lorengau	Offender aged 21 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 15 – complainant was the offender’s girlfriend – consensual sex – no aggravated physical violence – part of a pattern of persistent consensual sex – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	6 years
4	The State v Kemai Lumou, (2004) N2684, Kandakasi J, Lorengau	Offender aged 22 charged with one count of sexual penetration – complainant, a girl, aged 14 – offender was the girl’s uncle – no consent – aggravated physical violence: used bushknife to threaten complainant and sexual penetration was forceful – no evidence of physical injuries or infection of complainant with sexually transmitted disease – isolated incident – serious betrayal of trust – offence committed against a small pupil on her way to school – offender did not cooperate with police: tried to cover up his actions by claiming that complainant was his girlfriend, aged 17 and sex was consensual – pleaded not guilty: complainant forced to relive crime – no evidence of offender saying sorry to complainant and her relatives – no compensation attempted – first offender.	17 years
5	The State v George Taunde, (2005) N2807, Cannings J, Buka	Offender aged 33 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 13 –uncle/niece relationship – lack of consent – no weapons used or aggravated physical violence – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	10 years
6	The State v Titus Soumi, (2005) N2809, Cannings J, Buka	Offender aged 30 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 14 – offender married to complainant’s older sister – consensual sex – no physical violence – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	2 years
7	The State v John Ritsi Kutetoa, (2005) N2814, Cannings J, Buka	Offender aged 39 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 10 – stepfather/stepdaughter relationship– lack of consent – no weapons used or aggravated physical violence – physical injury caused to child – violation of existing relationship of trust – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender.	17 years

Relevant considerations

In three of the above cases (Taunde, Soumi and Kutetoa) I set out the factors I considered should be taken into account in determining sentence in cases such as this. I consider that the relevant considerations should be the same, irrespective of whether the offence is sexual touching or sexual penetration. The range of penalties available is, however, narrower in the case of sexual touching than it is in a case of sexual penetration.

The relevant considerations are:

1. Is there only a small age difference between the offender and the complainant?
   
2. Is the complainant not far under the age of 16 years?
   
3. Was there consent?
   
4. Was there only one offender?
   
5. Did the offender not use a threatening weapon and not use aggravated physical violence?
   
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the complainant?
   
7. Was there no relationship of trust, dependency or authority between the offender and the complainant or, if there was such relationship, was it a distant one?
   
8. Was it an isolated incident?
   
9. Did the offender give himself up after the incident?
   
10. Did the offender cooperate with the police in their investigations?
    
11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did?
    
12. Has the offender not caused further trouble to the complainant or the complainant’s family since the incident?
    
13. Has the offender pleaded guilty?
    
14. Has the offender genuinely expressed remorse?
    
15. Is this his first offence?
    
16. Can the offender be regarded as a youthful offender?
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
    

Rationale

The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed.

Numbers 1 to 8 focus on the circumstances of the incident. The age difference between the offender and the complainant is considered important. If there is only a small age difference, this can be regarded as a mitigating factor. The age of the complainant should also be taken into account. Generally the younger the complainant, the more serious the offence. The presence or absence of consent is very important. Absence of consent is not an element of the offence. So, as in Eddie Trosty’s case, the offender can be guilty even if there was real consent to sexual penetration. But the presence of real consent is in my view a strong mitigating factor. If there was no consent this is a serious aggravating factor, particularly if a weapon (eg a bushknife, as in Kemai Lumou’s case) is used or if there is aggravated physical violence or physical injury caused to the complainant (eg Kutetoa). It is relevant to ask whether it was an isolated incident. If not, this is a serious aggravating factor, as in Peter Lare’s case where the offender was labelled a sexual predator.

Numbers 9 to 14 focus on what the offender has done since the incident and how he has conducted himself.

Numbers 14 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

Application of considerations

I apply the above considerations as follows:

1. No there is a very big age difference of 53 years. The offender was aged 65 at the time of the incident and the complainant was 12.
   
2. No the complainant was well under the age of 16 years. Generally speaking the younger the complainant the more serious is the offence and the heavier the penalty.
   
3. No the complainant did not consent to being sexually touched.
   
4. Yes the offender acted alone, not in a group.
   
5. Yes the offender did not use a threatening weapon such as a bushknife and did not use aggravated physical violence.
   
6. Yes the offender did not cause physical injury.
   
7. Yes there was no existing relationship of trust, dependency and authority, in the legal sense.
   
8. Yes it was an isolated incident. There is some suggestion that a pattern of abuse had developed over a number of years but as I stated earlier there is no evidence of this and the benefit of reasonable doubt must be given to the offender as he has pleaded guilty.
   
9. No the offender did not give himself up after the incident.
   
10. Yes the offender cooperated with the police.
    
11. No the offender has not done anything tangible towards repairing his wrong, eg offering compensation to the complainant or her family or engaging in a peace and reconciliation ceremony or personally or publicly apologising for what he did. He has shown no interest in apologising or reconciling.
    
12. Yes he has not caused further trouble.
    
13. Yes he has pleaded guilty.
    
14. No he has not expressed remorse.
    
15. Yes this is his first offence.
    
16. No he was not a youthful offender.
    
17. No there is no other aspect of the circumstances of the incident or the offender that is relevant.
    

Conclusion

I regard consideration Nos 1, 2, 3, 11 and 14 as serious aggravating factors. However there are strong mitigating factors in Nos 5, 6, 8, 10, 12, 13 and 15. The other factors are not significantly aggravating (9, 16) or not significantly mitigating (4, 7) or neutral (17).

The offender has gained considerable benefit by pleading guilty. If this matter had proceeded to trial and the young girl had been required to relive this incident, the sentence would have been much more severe. I accordingly fix a head sentence of three years imprisonment.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

The pre-sentence report does not recommend a non-custodial sentence. Nevertheless, as Mr Oiveka submitted, I consider that that option should be explored further in view of the age of the offender (I estimate he is now aged 67) and his apparent poor state of physical health. On the other hand, as Mr Rangan submitted, the court also has to take account of one of the main reasons people who commit offences are sent to gaol: to protect the community and in this case to protect young girls against a man who has shown that he cannot be trusted in their company.

I will therefore indicate a minimum prison sentence that the offender must serve and the period of the sentence that can be suspended, if and when an application for suspension is granted.

I think it is important that the offender spend some time in gaol, to signal the gravity of what he has done. I fix a minimum period in custody of one year.

STEP 3 - ON WHAT CONDITIONS WILL THE SENTENCE BE SUSPENDED?

Two years of the sentence will be suspended if and when the National Court makes an order to that effect and is satisfied that the following events have taken place:

1. The sum of K500.00 (representing compensation) must be paid by or on behalf of the offender, directly to the school at which the complainant is enrolled, in respect of her school fees.
   
2. The offender has a satisfactory record at the correctional institution at which he has been serving his sentence.
   
3. An affidavit by a community correctional and rehabilitation officer in Kimbe, verifying that events (1) and (2) have taken place, shall be filed in the National Court at Kimbe.
   

Suspension of the sentence will be further conditional on the following:

4. The offender must not reside in the Kimbe General Hospital residential compound or anywhere else within one-kilometre of the place of residence of the complainant.
   
5. The offender shall perform community work to be approved by the court and under the supervision of a person nominated by the court, for at least six hours each week.
   
6. There shall be a probation report submitted by the Community Corrections and Rehabilitation Service to the National Court at Kimbe every three months after the date of commencement of the suspension of the sentence.
   
7. The offender shall not consume alcohol or smoke tobacco or any other substance.
   
8. The offender shall not leave West New Britain without the leave of the National Court. If there is to be an application for leave it shall be submitted through the Community Corrections and Rehabilitation Service.
   
9. The offender shall co-operate with the Community Corrections and Rehabilitation Service and with all persons nominated to supervise his compliance with the community work program.
   
10. The offender shall attend a local church or other place of spiritual guidance at least once each week.
    
11. The offender shall keep the peace and be of good behaviour.
    
12. Breach of any of these conditions will mean that the prison sentence will crystallise, ie the offender will go back to gaol for the balance of the period of the sentence.
    

SENTENCE

The Court makes the following order:

1. Paul Nelson, having been convicted of the crime of sexual touching of a child under the age of 16 years, is sentenced to three years imprisonment in hard labour, one year of which must be served and two years of which may be suspended by order of the National Court if and when an application for suspension is granted.
   

2 For the avoidance of doubt:

(a) Suspension of any part of the above sentence will only come into effect if and when ordered by the National Court.

(b) There shall be deducted from the term of imprisonment the period in custody that the offender has already spent in relation to this offence.

Sentenced accordingly.
________________________________________________________

Lawyer for the State : Public Prosecutor
Lawyer for the accused : Public Solicitor