State v Tatanu [2006] PGNC 170; N3392 (16 November 2006)

N3392

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1509 of 2006

THE STATE

-V-

SAILOR PETER TATANU

Tabubil: Kandakasi, J.
2006: 13th and 16th November

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Particular offence – Sexual touching - Reduce from a case of sexual penetration – Victim aged 8 years old at time of offence and fast asleep at the relevant time - Ejaculation of sperm in and around victim’s vagina – Minor lacerations to victim’s vagina – Breach of trust - Sentence of 6 years imposed – Section 229B(1)(a) Criminal Code

Cases cited:
The State v. Tikiria Amos (19/09/05) N2614.
Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71.
The State v. Joseph Ping (17/12/01) N2169.
The State v. Lohori Mau (22/07/03) N2430.
The State v. Peter Yawoma (19/01/01) N2032.
The State v. Attiock Ishmel (16/10/01) N2294.
Sakarowa Koe v. The State (01/04/04) SC739.
The State v. Moki Lepi (No.3) (25/11/04) N2734.
The State v. Brady Meki (unreported and unnumbered) CR 1478 of 2006.
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. Moki Lepi (No.3) (25/11/04) N2734.
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.
The State v. Lucas Yovura (29/04/03) N2366.
The State v. Enni Mathew & 8 Ors (No 2) (29/10/03) N2563.
Acting Public Prosecutor v. Don Hale (27/08/98) SC564.
The State v. Irox Winston, (13/03/03) N2347.
Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730.

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

16 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. This is now the decision of the Court.

Relevant Facts

2. The relevant facts are these. On 6th April 2005, between 3:00 pm and 6:00 pm, you went to the house of the parents of a small 8 year old female child, JNY. You call her parents your aunty and uncle. Hence, the victim was your cousin. Your aunty and uncle were not home at the relevant time. The victim and her smaller siblings were thus being cared for by a house girl, Yvonne. When you got to your aunty and uncle’s house, you told Yvonne to leave as you would look after the victim and her siblings until the parents get home. So Yvonne left. As soon as she did, you locked the victim’s two smaller brothers in a room and took the victim who was then fast asleep on a couch to her bedroom.

3. Once in the bedroom, you placed her on her bed, were she continued her sleep. You then pulled down the zipper to your trousers, took your penis out and tried to sexually penetrate the victim. In your record of interview with police, you said you had your penis put into the victim’s vagina about 5 centimetres in. The medical report states that the victim’s hymen was torn and there was presence of sperm in her vagina. On these facts, it is clear to me that you sexually penetrated the victim. In your record of interview, you said the victim was awake but other evidence suggests that she was still asleep. There is clearly no evidence of the victim consenting to your sexual penetration of her. You therefore, committed rape upon her. The medical report also states that the victim suffered lacerations and bruising in and around her vagina. Your sperm spilled around the victim’s vagina as well as the beddings in her bed.

4. The lacerations and the breaking of her hymen caused the victim to bleed. By the time the victim woke up, she found blood on her skirt and cried. At that time, you had already left the victim’s room and were with her younger siblings. The cry caused you to run to her and told her not to cry and said to her that, one of her younger siblings cut her. Thereafter, the victim washed off the blood.

5. On their return to the house, the parents found the victim and one of her siblings crying. The victim told them she found blood on her skirt and she washed them off. She also repeated what you told her. On close examination by the mother of the victim, she found the victim was sexually abused. Upon that finding, the parents took the victim to the hospital and thereafter had you arrested and charged by police.

6. Despite these facts, you were charged with sexual touching instead of sexual penetration. The law on what I must do in the circumstances is clear. Where the facts disclose a possible case of rape as is the case here, I must proceed to sentence you bearing that in mind and the fact that, you have been charged with a less serious offence.[1] By virtue of the reduced charge, you have already benefited by avoiding the need for you to be charged and dealt with for rape or sexual penetration, which carries a maximum penalty of life imprisonment. I must therefore be careful not to unnecessarily further reduce the sentence you should receive.[2] For as I said in The State v. Attiock Ishmel:[3]

"No doubt by reason of a plea-bargaining resulting in the dropping of a more serious offence to a less serious one drastically reduces the kind of penalty an offender should receive. Given that, in my view, there exists no reason or basis for a further reduction of any sentence. The society quite rightly expects the courts to impose on their behalf a sentence that best reflects its disapproval of the kind of conduct the offender has engaged him or herself in. That expectation should always be borne in mind by a sentencing authority when considering an appropriate sentence to impose in any case. It would be a disservice to the society's legitimate expectation if sentences prescribed under a lesser offence were further reduced."

7. The Supreme Court endorsed these views in its decision in Sakarowa Koe v. The State[4] and added that, where there are very good mitigating factors, the Court should be free, to further reduce the sentence only as an exception rather than the norm.

Address on Sentence and Submissions

8. Following the Court’s acceptance of your guilty plea and your conviction, I invited you to address the Court on your sentence and you did. You expressed your respect for the Court. Then you said sorry to the victim v and her parents for what you have done against them. You went on to say you are guilty of breaking the law. Thereafter, you went on to talk about your personal and family backgrounds. You said your parents are divorced and that you have not been able to complete your formal education after reaching grade ten, due to not being able to afford the relevant fees. You said, evil thoughts came to your mind and you committed the offence. You concluded your address with a plea for a good behaviour bond for your punishment.

9. Your lawyer added you are single and about seventeen years old. Both of your parents are alive but divorced. You have three brothers and 1 sister. In terms of your education, you have reached up to grade ten high school but have not been able to complete it due to the break down in the family. You have no formal employment. You have spent two months in custody before a K100 bail.

10. In his submissions, your lawyer urged the Court to take into account your guilty plea, cooperation with the police and all other authorities in terms of pleading guilty to the charge. Your lawyer also urged the Court to take into account the fact that, you are a first time offender and as such, 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 and that you caused no serious physical injury to the victim.

11. Your lawyer also drew the Court’s attention to the case of The State v. Moki Lepi (No.3),[5] 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 two or three years.

12. The State through its counsel argues for a sentence beyond three years, given the disparity in your victim and your own age and that you committed the offence in breach of a trust reposed in you.

Offence and Sentencing Trend

13. I will simply repeat what I said in the decision I handed down here in Tabubil yesterday in the case of The State v. Brady Meki.[6] 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."

14. 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 offences against a girl under the age of twelve years. The earlier provision provided in terms of indecent dealing with a girl under the age of twelve with a penalty of five years. The significant change was the increase in the penalty from five years to twelve years.

15. As I noted in a number of cases already as in the case of The State v Damien Mangawi,[7] Parliament considered then and even now that, sexual exploitation and abuse of young children, 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,[8] 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.

16. 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 five years to twelve years for the offence of sexual touching of a girl under the age of twelve 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 national international calls, for greater protection of our children.

17. 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,[9] 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 committing unlawful carnal knowledge of a girl under the age of sixteen years.

18. Earlier on in The State v. Moki Lepi (No. 2),[10] I decided to impose a term of eight years, for attempted unlawful carnal knowledge of a girl under ten years and a further three years for indecently dealing with a girl under sixteen 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 distance relationship between the victim and the offender through the offender’s marriage to the victim’s aunt. The victim was about five years old and her offender was a married man with children of his own.

19. 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.3).[11]

20. Much earlier on in The State v. Peter Yawoma (supra), I imposed a sentence of six years against the offender. In that case, the prisoner was charged with attempted rape of a three years and four 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.

21. As a number of cases[12] have noted, Parliament made the amendments to provide for the protection of children against sexual exploitation and abuse. This came about out of 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 for the abuse of children to continue.

22. Noting all of the above, I decided to impose a sentence of two years in the Brady Meki case yesterday. In that case, the prisoner pleaded guilty to a charge of sexual touching of his victim’s vagina with his right index finger. The victim was six years old, who suffered minor laceration injuries. There was no penetration of the victim’s vagina. There was no breach of any trust.

Sentence in Your Case

23. 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 without taking any tangible steps, say for example, offering a direct apology to the victim and her parents or pay them 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.[13] 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. Finally, I note that, the victim did not sustain any serious injuries.

24. 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 has, through the change in the law, said 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.

25. 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 penis to penetrate the victim’s vagina.

26. Thirdly, you did sexually penetrate the victim. You broke her hymen. So her virginity was broken. You therefore seriously violated the victim’s person. You should have been charged with rape or sexual penetration. Despite that, you have been charged with sexual touching. That does not mean that, you did not do these bad things to your victim. As noted 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. In accordance with the law I have earlier discussed, I must remind myself that, by reason of the State presenting the lesser charge against you, the penalty you should have received has been considerably reduced already from a possible life imprisonment to a short twelve years imprisonment. Nevertheless, that does not necessarily mean that I should automatically impose the prescribed sentence of twelve years for the charge of sexual touching. Instead, I must consider whether there is reason to further reduce the prescribed maximum sentence of twelve years.

27. Finally, you committed the offence in breach of the trust reposed in you as the victim’s cousin. The family unit and its extended relations in our country is considered very important. Therefore, Parliament has made the commission of any offence against close relations very serious. The Courts have followed that through with taking into account, even in a case of a breach of a defector trust very serious. In your case, the victim was not only your cousin but was a very small girl. She was in no position to appreciate sexual intercourse with anyone, let alone, her own cousin. What you did to her was a serious violation of her right as a person. You broke the sacred trust placed in you as a close relative.

28. Weighing the factors both for and against you, they seemed to even out. Then noting the reasons for the change in the law particularly increasing the penalty for the offence you committed from early prescribed sentence of five years to now twelve years, I consider a sentence beyond the sentence I imposed in the Brady Meki case appropriate. This is because of the fact that, you committed the offence in breach of a trust reposed in you. It is also to reflect the particular circumstances surrounding the commission of the offence, to serve both as a personal and general deterrence. I consider a sentence of six years is thus appropriate. I therefore impose that sentence against you. Of that, the two months you have already spent in custody shall be deducted, leaving you with the balance of five years and ten months.

29. 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.[14] 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, it is appropriate to suspend either the whole or part of the sentence. You will therefore serve the balance of your sentence of five years and ten months in hard labour at the Ningerum Correction Services. A warrant of commitment in those terms shall issue forthwith. I order a refund of your cash bail of K100.00.

___________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Public Solicitor

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^[1] For examples of authorities on point The State v. Tikiria Amos (19/09/05) N2614 and Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71.
^[2] See The State v. Joseph Ping (17/12/01) N2169; The State v. Lohori Mau (22/07/03) N2430; The State v. Peter Yawoma (19/01/01) N2032 for examples of authorities on point.
^[3] (16/10/01) N2294.
^[4] (01/04/04) SC739.
^[5] (25/11/04) N2734.
^[6] (unreported and unnumbered) CR 1478 of 2006.
^[7] (13/06/03) N2419.
^[8] (19/01/01) N2032.
^[9] (24/05/02) N2243.
^[10] (22/07/02) N2278.
^[11] (25/11/04) N2734.
^[12] 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;
^[13] For example in The State v. Lucas Yovura (29/04/03) N2366; The State v. Enni Mathew & 8 Ors (No 2) (29/10/03) N2563.
^[14] 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.