N3411

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 871 OF 2007

THE STATE

V

HILLARY LARIS

Buka:	Paliau, AJ
2008:	9th, 12th, 15th & 19th May

CRIMINAL LAW – Sexual Assault – Charge of – Not guilty plea – Trial – Criminal Code s. 349(1)(a).

Cases Cited:
State v William Patangala; CR 800 of 2004
State v Alois Dick, N3219

Counsel: 
Mr. Rangan, for the State
Mr. Latu, for the Accused

19 May, 2008

DECISION ON SENTENCE

1. PALIAU, AJ: You pleaded not guilty to a charge of Sexual Assault. After trial you were convicted for the offence and now I will make a decision as to the type of punishment to be imposed on you.

Antecedent

2. No prior convictions.

Allocutus

3. You state during allocutus that you have conducted one bell Court. One (1) hour of reconciliation. You have organised a get together of the Chiefs of both clans to settle by custom for payment of compensation and reconciliation.

Pre – Sentence Report

4. I have read the pre-sentence report prepared by the Community Based Corrections Services and you have a good record in the community apart from this offence. You are recommended for probation and you are not considered a threat to the community. You are considered a low risk person.

5. You are 60 years old and married with eight children, oldest being 27 years old and the youngest is 10 years old. 

6. Your highest level of education is a Bachelor of Arts Degree from the University of Papua New Guinea. You are currently the Sitting Member representing the people of Tsitalato in the Bougainville House of Representative. You have had some employment in the past.

7. The pre-sentence report does not show that there has been payment of compensation to the victim’s relatives and no reconciliation with them.

Submission by Defence Counsel

8. Your lawyer, Mr Latu submitted that a non-custodial sentence must be imposed. That the Chiefs of your clan have organised pigs, store goods and garden foods and had already given to the victim’s clan on 14th May 2008.

9. Mr Latu referred me to two cases of Sexual Touching, State v William Patangala CR 800 of 2004 and State v Alois Dick, N 3219, which His Honour Justice Lenalia imposed imprisonment terms of 4 years and 5 years respectively.

10. I have studied these two cases but they involved touching the sexual parts of a child under the age of 16 years. In the present case, the offence is Sexual Assault and it involved an adult female. I have been asked to consider the seriousness of the two cases with the present case and impose a lesser penalty.

Submission by the State

11. Mr Rangan submitted that the penalty for the offence of Sexual Assault is imprisonment not to exceed 5 years. In the old Section the penalty was 2 years. Parliament in its wisdom has legislated for higher penalties due to higher incidences of sexual offences committed in particular against under age girls and our women folk.

12. The Court should also consider the aggravating factors when considering punishment. The aggravating factors are, position of trust that the accused had with the victim. He is a member of Parliament of the Bougainville House of Representatives and Deputy Chairman for the Parliamentary Committee for Education, Science and Technology in the Bougainville Government. The second aggravating factor is that the accused confined the victim before the commission of the crime.

13. On the question of payment of compensation, Mr Rangan submitted that any payment of compensation should not exceed K5,000.00.

Decision as to the appropriate penalty

14. To determine the appropriate penalty, I will adopt the following decision making process that my brother Judge, Justice Cannings has adopted in some of his decisions and they are:

Step 1	:	What is the maximum penalty?
Step 2	:	What is the proper starting point?
Step 3	:	What should the head sentence be?
Step 4	:	Should the pre-sentence periods in custody be deducted from the term of imprisonment?
Step 5	:	Should all or part of the sentence be suspended?

STEP 1	: WHAT IS THE MAXIMUM PENALTY?

15. The maximum penalty for Sexual Assault, under Section 349 (1)(a) of the Criminal Code is subject to Subsection (4) imprisonment for a term not exceeding five years. Subsection (4) provides that where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable to a term of imprisonment not exceeding 10 years. Section 349 A defines circumstances of aggravation to include (d) the accused person confines or restrains the complainant before or after the commission of the offence, or (e) the accused person, in committing the offence, abuses a position of trust, authority or dependency.

STEP 2	: WHAT IS THE PROPER STARTING POINT?

16. I am unable to find case precedents that will assist me nor Counsels were able to provide case precedents that will spell out the range of punishments to be imposed in such cases.

17. I am mindful of the fact that the case of The State v Alois Dick (Supra) was decided in June 2007 and the trial Judge did not impose the penalty that should be imposed and that is 12 years or below due to relationship of trust. This was because the aggravating factor of relationship of trust, authority and dependency was not included in the indictment. Had it been included, I have no doubt that the penalty could have been more than 5 years or even more than 7 years.

18. Because Section 394 (4) is not in mandatory terms, the Court has a discretion to impose penalty below 10 years. Given the circumstances of this case I consider that the starting point is 7 years.

STEP 3: WHAT SHOULD THE HEAD SENTENCE BE?

19. As the starting point is 7 years, I will start from there and weigh the mitigating and aggravating factors. If the mitigating factors are more, the head sentence will be below the starting point. If the aggravating factors are more, the head sentence will be above the starting point.

Mitigating Factors 

-	You have a good record in the community
-	You have no prior convictions
-	You have expressed remorse
-	There has been peace and reconciliation with the victim’s relatives by giving pigs, garden food and store goods.
-	You are a first time offender
-	You are sixty years old and you are sick with diabetes (Pre-Sentence Report)
-	You also have a sick wife and a sick child (Pre-Sentence Report)

Aggravating Factors

-	You confined or restrained the victim before the commission of the offence
-	You abused the position of trust, authority or dependency.

Determination

20. After weighing the mitigating and aggravating factors, the mitigating factors outweigh the aggravating factors by 5 factors. The head sentence should be below the starting point. I therefore impose a head sentence of 5 years imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

21. I am required under Section 3 (2) of the Criminal Justice (Sentences) Act to deduct from the head sentence the whole of the pre-sentence periods in custody (if any). As the accused is on bail, I will not make any deductions.

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

22. You have a good pre-sentence report and your relatives have paid compensation in terms of pigs, food gardens and store goods. As per the pre-sentence report you are 60 years old and you are sick with diabetes and your wife and the last born child are also sick. They are also dependant on you.

23. Taking into account all the above factors, I do not think a custodial sentence should be imposed. I will therefore suspend all of the 5 years head sentence with the following conditions:

(1)	You shall enter into your own recognizance and keep the peace and be of good behaviour for 1 year commencing today, 19th May 2008.

(2)	You shall pay compensation of K 1,000.00 to the victim as part of peace and reconciliation process that has taken place within 4 weeks of today’s date – 19th May 2008.

(3)	The Probation Officer shall produce a statement to the Court that condition (2) has been complied with.

(4)	If you breach any one of the above conditions, you shall be brought before the National Court to show cause why you should not be detained in custody to serve the rest of the sentence.

Sentence

24. HILLARY LARIS, having been convicted of the crime of sexual assault, you are sentenced to:

-	Length of sentence imposed	:	5 years

-	Pre-Sentence period deducted :	Nil

-	Resultant length of sentence to be served	:	5 years

-	Amount of sentence suspended	:	5 years

-	Time to be served in custody	:	Nil	

-	Your bail of K400.00 is to be refunded forthwith.

-	K50.00 Exhibit will also be refunded forthwith.

Sentenced accordingly.

Public Prosecutor: Lawyer for the State
Latu Lawyers: Lawyer for the Accused