N3026
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.910 OF 2005

THE STATE

-V-

THOMAS TUKALIU

KOKOPO: LENALIA, J.
2006: 14th & 17th & 22nd Feb.

Counsel:
L. Rangan, for the State
P. Kaluwin, for the Accused

22nd February, 2006

LENALIA, J: The prisoner pleaded guilty to two counts of sexual touching. On both occasions they were aggravated by an existing relationship of trust authority and dependency. This is an offence contrary to s.229B (1) (a) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

The facts of the first count dates back to an unknown date in the year 2004 at Wairiki No.1 Village in Toma/Vunadidir Local Level Government area in the Gazelle District on this Province. The victim in these two cases Francisca Bata was sleeping in her parents’ house in the living room. At that year, she was doing her Grade 2 at the local Elementary School and she was age 10 years then.

On the night in question, the accused came to where the victim was sleeping and started to stimulate the victim by touching her vagina. It appears from the facts that, the accused conducted the same abuse on the victim a number of times before the date of the second count. According to the victim, the second time the accused did what he did to the victim may have been in January 2005 and to be specific must have been on 27th of that month.

As well as touching the victim’s vagina on that second occasion, the victim alleged that the accused sexually penetrated her. On those first two occasions, the victim said, when she woke up in the morning on those two occasions, she wanted to tell her mother about what the prisoner did to her but she was afraid since the prisoner had told her not to tell anyone.

At least Francisca could recall the date being Monday 31st of January 2005 when the prisoner molested the victim the second time as alleged on the indictment. It was sometime over midday (between 3pm and 4pm) when Francisca was doing some cleaning up in her mother’s kitchen. She took the dishes out to the open space near their water tank and got busy by brushing and washing the saucepans. 

As she was doing this, the accused came to her and asked her to lift one leg up and rest it on the concrete used as the basement for the water tank. At that time she was wearing a piece of calico only without any pants. She lifted up one leg and rested it on the concrete basement in such a position to almost expose her private part. The accused took advantage of that and stimulated the victim by touching her vagina and pushed his fingers in and out from the victim’s private part.

When the accused was doing that, the victim’s mother came out from the house to check where the victim was. When she looked up to where the accused and the victim were, she observed that the victim was resting one of her legs on the concrete while bending over. Hennie Bata (the victim’s mother) also saw the accused kneeling down in front of the victim. She thought that Francisca had been hurt in her leg somehow and the accused was trying to assist her.

However, much to her surprise, Hennie noticed that, when the victim put her leg down to the ground and looked at her mother, she looked worried as though something was wrong. Hannie called to the victim three times, she did not response for a while but later she came. The victim’s reluctance to attend to her mother’s call made her mother suspicious about what the accused was doing to her daughter.

She invited the victim to accompany her to see her aunty. When they were in her auntie’s house, Hannie informed Patricia (the aunty to the victim) about her suspicion. Patricia took the victim to the copra drier where she asked the victim about why the accused was bending over right in front of her. It was then that the victim revealed her relationship with the accused. 

Law.

It is an offence under the law to sexually touch any parts of the body of a child under the age of 16 years. For sexual touching per se, the accused could be sentenced to a term of 7 years imprisonment. The offence is aggravated by two factors. First where a child is under the age of 12 years, an offender may be sentenced to the maximum term of 12 years. Secondly, Subsection (5) of the section charged states that if the offence of sexual touching is committed with a child and where there is an existing relationship of ‘trust, authority or dependency’ the maximum imprisonment term is again 12 years. 

On the first charge, the accused is charged pursuant to section 229B (1) (a) and (b) of the Criminal Code (Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. This section states:

"229B. SEXUAL TOUCHING.

(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, 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 Subsection (4) and (5), imprisonment for a term not exceeding seven years."

Then further Subsection (4) and (5) state:

"(4) If the child is under the age of 12 years, an offence 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 and 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".

Sexual abuse of very young children and the women in this country has been adequately addressed by the Parliament by passing the Criminal Code (Sexual Offences and Crimes Against Children) Act of 2002. The Act provides for all forms of sexual abuse including sexual touching, sexual penetration, indecent acts directed at a child, persistent sexual abuse and even "child prostitution" and "child pornography".

It is hoped that by imposition of severe penalties, the public may be made aware that, there is a law which caters for the interest of the young victims as well as the women folks who may suffer from any form of physical sexual abuse. The worse form of sexual abuse is the type that takes place within the home environment between members of the same family or the extended family unit as was the case in the instant case. It is for this reason that the legislature included in s.229B (5) the situation where there is a breach of the relationship of trust, authority and dependency. 

It is an offence to abuse the trust and authority which is placed on a person. This is why s.229E of the Act states:

"(1)	A person who engages in an act of sexual penetration or sexual touching of a child between the age of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years.

(2)	It is not a defence of a charge under this section that the child consented unless, at the time of the alleged offence, the accused believed on reasonable grounds that the child was aged 18 years or older"

The present case is aggravated by a number of factors. First, I find from the facts tendered to this court by the State counsel that, though, there was no physical violence caused to the victim, Mr. Rangan of counsel for the State rightly submitted that, the statement obtained from the victim shows that, whenever she sees the accused, she is usually mentally affected and scared for her life. 

I have seen the victim’s statement in the file and I agree that the victim due to her age can easily be mentally tortured by recalling what the accused did to her. 

Secondly, the facts show that the relationship between the accused and the victim went far beyond mere sexual touching for two reasons. First, it is possible that; the prisoner may have sexually penetrated the victim. That is quite obvious from the medical report dated 31st January 2005 conducted by Dr. Melee Samson at the St. Mary’s Hospital Vunapope. Such report suggests absence of vaginal hymen could only be caused by penile vaginal penetration. Next aggravation is the fact that there is an existing relationship of trust, authority and dependency between the prisoner and the victim.

The new law is very specific by saying that if there was present such relationship, it puts the penalty for breach of trust cases above ordinary sexual abuse cases.

Children are not born out from holes in the tress or from stone holes or caves so that they can be treated the way perpetrators of sexual abuse treat them. They are born from human beings and rightly they deserve to be treated with care and all human curtsey due to them just like adult human beings. They have all the basic to the protection of law enshrined in the Constitution.

Being children, they have the right to the protection of the law, such as the right to freedom, right to life; they have the right to the protection from inhuman treatment, (see Sections 32, 35, 36 and 37 of the Constitution) and other rights that are protected by any other law.

As to how the victim in the instant case is related to the accused is a great concern to this court. The victim Francisca Bata is the niece of the accused. In English that means, the victim is the daughter of the accused elder brother. Mr. Rangan submitted to court that, in the Tolai society, the victim would also address the accused as her ‘father’, commonly referred to in Pidgin as ‘liklik papa’. This is not only the position in the Tolai community but commonly accepted right throughout the country.

Still on my second point, though not specifically pleaded on the body of the indictment, according to my reading of the facts, the two acts of sexual touching seem to have stemmed from a trend of persistent abuse. The Act creates a separate offence for persistent abuse pursuant to s.229D which provides:

"(1)	A person who, on two or more occasions, engages in conduct in relation to a particular child that constitute an offence against this Division, is guilty of a crime of persistent abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2)	For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3)	In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4)	A charge of an offence against this section –

(a)	must specify with reasonable particularity the period during which the offence against this section occurred; and
(b)	 must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5)	For an accused to be committed of an offence against this section –

(a)	the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concern, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and
(b)	the court must be satisfied about the material facts of the two incidents, although the court need not be satisfied about the dates or the order of those occasions.

(6)	If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment".

There are many cases either in this Province or elsewhere which show that, under-age children have been subjected to persistent sexual abuse by members of their own family or very close relatives as the facts of the instant case reveals. As the victim shows in her statement, she will have to live with the trauma, guilt and fear. 

In The State v Penias Mokei (No.2) (26.8.04) N2635 Cannings, J. set out certain considerations which should be considered as a guide to sentencing offenders on charges of sexual abuse under the Act. I have covered some of those factors in this discussion. One of the relevant considerations which His Honour made in that judgment is "the level of breach of trust". If the relationship of trust between the accused and the victim is very close, the more serious the betrayal of trust it becomes and the higher the penalty should be.

The next aggravation is that the accused was a pastor of the Revival Church in Wairiki No.1 village. Breach of trust, authority and dependency is defined in s.6A of the law in the following words:

"(1) When the term relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where –

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or
(b) the accused has care or custody of the complainant; or
(c) the accused is the complainant’s grandparent, aunt, uncle, sibling (including step-sibling) or first cousin; or
(d) the accused is a school teacher and the complainant is his pupil; or
(e) the accused is a religious instructor to the complainant; or 
(f) the accused is a counsellor or youth worker acting in his professional capacity; or
(g) the accused is a health care professional and the complainant is his patient; or 
(h) the accused is a police or prison officer and the complainant is in his care or control."

I distinguish the facts of the instant case from that of The State v William Patangala CR.No.800 of 2004. That case was a one instant of sexual touching whereas in the circumstances of the instant case, two charges have been charged in the body of the indictment. More than that is the fact that there may have bee the possibility that, sexual penetration occurred. That is not a consideration on this discussion on sentence. It is however abundantly clear from the facts that, the two incidents charged were part of a pattern of persistent sexual abuse and the court considers that to be very serious indeed.

There is another relevant factor which, I feel bound to address. At the time the two offences were committed upon the victim which fact is relative to the age limit placed by the law concerning sexual abuse. The victim was age 10 years when she was only doing her Grade 2 at the local Elementary School while the accused may have been 25 years. Here was the case of a minor and the accused was and is an adult person and according to the case of The State v Mitige Neheya [1988-89] PNGLR 174 a big gap in the age difference is a circumstance of aggravation.

I am entitled to accept the State’s version of facts on the basis of what is pleaded in the body of the indictment although there may seem to be some divergence of facts in the State’s case itself, I accept the version presented by the State in relation to the two charges of sexual touching.

I have considered the accused’s guilty plea and the fact that certain compensation has been paid. The Pre-Sentence Report (P.S.R.) confirms that 100 fathoms of shell money has been paid by the accused’s to the victim’s mother’s relatives. 

One wonders how much of that went to the victim herself. The report suggests that even with the payment of compensation, there would still be disharmony between the family members. I have considered both counsels’ submission on mitigation and aggravation. The accused is a first time offender but the guilty plea should not be used to avail the accused from the consequences and nature of the two serious charges he committed against the victim.

I have carefully considered factors weighing in favour of the prisoner and those against him. I have considered the sentencing guidelines in relation to sexual abuse case set by Cannings, J in the case of The State v Penias Mokei (supra). The maximum penalty for the offence of sexual touching is 7 years and if committed under an existing relationship of trust, authority or dependency is punishable by 12 years imprisonment. 

I consider the offence of sexual touching is less serious than sexual penetration itself. That is because, the penalties provided for ss.229A and 229B vary significantly. 

There are very few case law on sexual touching. At least I may not be up to date with such information however, in the case of The State v Paul Nelson (25.5.05) N2844 Cannings; J sentenced a 65 year old man to 3 years imprisonment in hard labour. Two years of that sentence were suspended with various conditions. He only served 1 year. The victim in that case was age 12 years. The prisoner in that case engaged in one act of sexual touching. There was no existing relationship of trust and it was an isolated incident.

In the circumstances of the instant case, it was not an isolated incident and it was the case where the prisoner breached the trust, authority and dependency position both in terms of his being the victim’s uncle or small father and as well him being a pastor. To him who is given much, the expected accountability and responsibility is much higher.

Having said this, the sentence of this court is 5 years imprisonment in hard labour. The court suspends 3 years from that sentence on conditions that, after serving 2 year he shall enter into recognition to keep the peace and be of good behaviour for 2 years. His bail monies shall be refunded to him. Any time spent in custody shall be deducted from the time he will serve.
___________________________
Lawyer for the State: 	THE PUBLIC PROSECUTOR
Lawyer the Accused: 	THE PUBLIC SOLICITOR