State v Meki [2006] PGNC 169; N3391 (15 November 2006)

N3391

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 1478 OF 2006

THE STATE

-V-

BRADY MEKI

Tabubil: Kandakasi, J.
2006: 9th and 15th November

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Particular offence – Sexual touching - Using index finger and attempting to sexually penetrate victim – Victim 6 years old – No serious injuries – Sentence of 3 years imposed – Section 229B(1)(a) Criminal Code

Cases cited:
The State v. Moki Lepi (No.3) (25/11/04) N2734.
The State v Damien Mangawi (13/06/03) N2419.
The State v. Peter Yawoma (19/01/01) N2032.
The State v. Joseph Minjihau (24/05/02) N2243.
The State v. Moki Lepi (No. 2) (22/07/02) N2278.
The State v. Pennias Mokei (No 2) (2004) N2635
The State v. Paul Nelson (25/05/05) N2844.
The State v. Saperus Yalibakut (26/09/05) N2957

Counsel:
D. Mark, for the State.
P. Kapi, for the Prisoner.

15 November, 2006

1. KANDAKASI J: You pleaded guilty to a charge of sexual touching contrary to s. 229B (1) (a) of the Criminal Code. After having administered your allocutus and receiving both yours and that of the State’s submissions, I reserved a decision on your penalty. This is now the decision of the Court.

Relevant Facts

2. The relevant facts are these. On 12th August 2005, you were at the Olsobip government station, here in the Western Province with two other boys. You left your two friends and went off to buy some cigarettes. On the way, you passed through a small girl, namely DS aged 6 years, collecting nuts. You asked her to follow you and she did. You took her to an abandoned house and told her to stand on the ladder to the house and she did. As the little girl stood on the ladder, you ran your hand through her vagina and put your right index finger into her vagina. You did not fully penetrate her vagina, but in the process you caused her some minor bruises and abrasions to her vagina causing her to bleed.

Address on Sentence and Submissions

3. Following the Court’s acceptance of your guilty plea and your conviction, I invited you to address the Court on your sentence. You said sorry to the victim and her parents for what you have done against them. Further, you told the Court that your parents are still alive but your father is disabled. Hence, you said you want to take care of your father and other family matters. Accordingly, you asked the Court to grant you good behaviour bond for your sentence.

4. Your lawyer added that, you are about 19 years now and 18 years old at the time of the offence. You are single having one brother and one sister. In terms of your education, you have reached up to grade 8 high school education. Employment wise, you are in no formal employment. You have been in custody since 19th August 2005 or 1 year 2 months and 5 days, awaiting your trial and sentence.

5. In his submissions, your lawyer urged the Court to take into account your guilty plea, your cooperation with the police and all other authorities in terms of pleading guilty to the charge when the State was in no position to proceed to trial and successfully secure your conviction. Your lawyer also urged the Court to take into account the fact that, you are a first time offender. Further, your lawyer submitted that, the Court should take into account the fact that, you have no prior conviction. Furthermore, your lawyer urged the Court to note that, you did not commit the offence with the use of force or threat of force, a breach of any trust reposed in you and that you caused no serious physical injury to the victim.

8. Your lawyer also drew the Court’s attention to the case of The State v. Moki Lepi (No.3)[1], a case in which I imposed a sentence of 3 years against an adult married man with his own children, after a trial. He committed the offence in breach of a trust position. Given that case, your lawyer submitted that, the factors in your mitigation far outweigh those in your aggravation. He then submitted that, I should impose a sentence of 2 years. Mr. Mark, counsel for the State agreed with those submissions.

Offence and Sentencing Trend

9. The offence of sexual touching is prescribed with its penalty by Section 229B of the Criminal Code as amended in the following terms:

"(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."

10. The Criminal Code (Sexual Offences and Crimes against Children) Act 2002 introduced this and many other provisions. This effectively repealed and replaced the previous provision, s. 217 (2) and in relation to a sexual offence against a girl under the age of 12 years. The earlier provision provided in terms of indecent dealing with a girl under the age of 12 with a penalty of 5 years. The significant change was the increase in the penalty from 5 years to 12 years.

11. As I noted in a number of cases already as in the case of The State v Damien Mangawi,[2] Parliament considered then and even now that, sexual exploitation and abuse of young children are very serious offences. The reason for this is because, this category of our population is very vulnerable and defenceless. Yet, they are our country’s future leaders and citizens of tomorrow. Modern medicine and science confirm that, whatever happens to a person’s earlier life remains long in their memories. Further, as I noted in The State v. Peter Yawoma,[3] even though there might be no evidence of any physical harm, numerous sexual and other violent offence cases clearly show that, victims of such offences continue to suffer ongoing psychological problems. In countries like Australia and elsewhere, there are readily available appropriate medical services to assist victims to overcome such problems. But the situation is not the same here. Such specialist medical services are almost non-existent. This means, victims of such offences in our country are left with no assistance at all. Therefore the need to protect our young children against offenders like you is far more urgent and important than it is the case in other countries.

12. Past sentences have failed to fulfil that desire to protect our children, evidenced by the prevalence of the offence. Accordingly, Parliament increased the penalty from 5 years to 12 years for the offence of sexual touching of a girl under the age of 12 years. Parliament is the highest institution of the land responding to this serious crime against our young people. It is also in response not only to a national but international call for greater protection of our children.

13. Prior to the change in the law by Parliament, I imposed the then prescribed maximum sentence of 5 years in the case of The State v. Joseph Minjihau,[4] bearing the above concerns in mind. That was in relation to a charge under then s.216 of the Criminal Code for unlawful carnal knowledge. There, an elderly married man with children committed unlawful carnal knowledge of a girl under the age of 16 years.

14. Earlier on in The State v. Moki Lepi (No. 2),[5] I decided to impose a term of 8 years for attempted unlawful carnal knowledge of a girl under 10 years and a further 3 years for indecently dealing with a girl under 16 years. I ordered these sentences to be served cumulatively. That was in a case of a breach of a trust relationship where there was a distant relationship between the victim and the offender through the offender’s marriage to the victim’s aunt. The victim was about 5 years old and her offender was a married man with children of his own.

15. The prisoner appealed against both his conviction and sentence. The Supreme Court confirmed his conviction and remitted the matter back to me for re-sentence as I had not administered his allocatus. On re-hearing, I re-imposed the same sentences in the decision now reported as The State v. Moki Lepi (No.).[6]

16. Much earlier on in The State v. Peter Yawoma (supra), I imposed a sentence of 6 years against the offender. In that case, the prisoner was charged with attempted rape of a 3 years and 4 months old girl. The prisoner was the victim’s paternal uncle. He had taken the victim out of her parents’ house where she was sleeping. He attempted to forcefully have sexual intercourse with the victim but was not able to succeed because of the tender age of the victim. The victim suffered some lacerations and bruises. The prisoner also pleaded guilty and was a first time offender. He expressed genuine remorse over his conduct and acknowledged that he was wrong.

17. As a number of cases[7] have noted, Parliament made the amendments to provide for the protection of children against sexual exploitation and abuse. This came about out of a serious concern and abhorrence of this sort of conducts. By this legislative action through their duly elected representatives, the people of Papua New Guinea have said, they will not allow the abuse of children to continue.

Sentence in Your Case

18. For the purposes of determining an appropriate sentence for you, I note and take into account both your personal and family backgrounds as put to me by your lawyer and as I noted above. Then in your mitigation, I note that, you are a young first time offender and that you have pleaded guilty to the charge against you. Further, you said sorry for what you have done but have not paid any compensation. As I have noted in a number of cases already, a mere expression of remorse is not good enough unless, it is accompanied by something tangible, such as, compensation. Accordingly, I am of the view that, your expression of remorse should not unduly reduce the kind of sentence you should receive for the offence you committed.

19. In addition to the foregoing, I note that, the victim did not sustain any serious injuries. Nevertheless, as I noted in the foregoing, this does not mean that the victim suffered no harm. Rather, she has suffered some psychological injury as a result of your sexual attack of her. She will live with the effects of what you have done against her as opposed to you receiving a short term of years for your sentence for committing the offence and in no time overcome that.

20. Against the above mitigating factors, I note firstly that, you committed an offence that is prevalent, as highlighted by the various cases I have referred to in the foregoing. The community as through the change in the law has said that, sentences for this offence have to be beyond the kind of sentences that have been imposed in the past because, those sentences have failed to serve the desired end of deterring and or preventing people like you from committing this kind of offence.

21. Secondly, I note that, you are much older than the victim. Of the two of you, you were in a better position to appreciate that, what you set out to do was wrong. Yet, you proceeded with your desire to satisfy your sexual desires through the use of your right index finger to penetrate the victim’s vagina. However, because of the age of the victim, it was difficult for you to fully penetrate her vagina.

22. Thirdly, you cause some minor injuries to the victim. That does not however, mean that, the victim is free of any serious injury. Instead, as mentioned earlier, the victim will be left with the negative impacts of your sexual assault of her. This may remain with her for the rest of her life, given that there are no facilities in the country to help the victim to overcome her psychological injuries.

22. Weigh the factors both for and against you, I note that, those in your mitigation outweigh the factors against you. Then noting the reasons for the change in the law particularly increasing the penalty for the offence you committed from any early prescribed sentence of 5 years to now 12 years, I consider a sentence of 3 years appropriate in the particular circumstances of your case. Of that, I order a deduction of the period of 1 year 2 months and 3 weeks you have already spent in custody awaiting your trial and sentence. That will leave you with the balance of 1 year 9 months and 1 week yet to serve.

23. I have given consideration to the possibility of suspension of either the whole or part of that sentence and have decided against it for two main reasons. First, there is no pre-sentence report supporting a suspension of either the whole or part of the sentence. It is settled law now that, there can be no suspension of sentence unless there is a pre-sentence report supporting it.[8] Secondly, I do not consider that, in the light of the reasons for the changes to the law and in particular, the increase in the prescribed penalty, a non custodial sentence is appropriate. You will therefore serve the balance of your sentence of 1 year and 9 months and 1 week in hard labour at the Ningerum Correction Services. A warrant of commitment in those terms shall issue forthwith.

__________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyer for the Prisoner

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^[1] (25/11/04) N2734
^[2] (13/06/03) N2419.
^[3] (19/01/01) N2032.
^[4] (24/05/02) N2243.
^[5] (22/07/02) N2278.
^[6] (No.3) (25/11/04) N2734.
^[7] See for example, The State v. Pennias Mokei (No 2) (2004) N2635; The State v. Paul Nelson (25/05/05) N2844; The State v. Saperus Yalibakut (26/09/05) N2957;
^[8] For examples of authorities on point see Acting Public Prosecutor v. Don Hale (27/08/98) SC564; The State v. Irox Winston, (13/03/03) N2347 and Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730.