State v Hambo [2010] PGNC 125; N4120 (12 August 2010)

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CRIMINAL LAW – sentence – sexual touching of child – Criminal Code, Section 229B – multiple offences – whether sentences should be served concurrently or cumulatively – totality principle – relevance of age and medical condition of offender.

A 62-year-old man was convicted of five out of six counts of sexually touching a child under the age of 16 years contrary to Section 229B(1)(a) of the Criminal Code. There were three victims, girls aged 8, 8 and 12 years respectively. Two offences were committed against the first girl, one against the second and two against the third. This is the judgment on sentence.

Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
The State v A Juvenile, "GS", CR 80/2009, 20.05.10
The State v A Juvenile, "IO" (2005) CR No 1166 of 2004
The State v Arnold Kulami, CR No 737 of 2007, 26.06.09
The State v Ereman Kepas (2007) N3192
The State v Kagewa Tanang (2005) N2941
The State v Kikia Solowet, CR No 296 of 2006, 24.08.07
The State v Paul Nelson (2005) N2844
The State v Stafford Hambo (2010) N4036
The State v Steven Archie (2009) N3727
The State v Thomas Tukaliu (2006) N3026
The State v Timothy Bipi (2009) N3608
The State v William Patangala (2006) N3027

This was a judgment on sentence for an offender who had been convicted of five counts of sexual touching of children under the age of 16 years.

1. CANNINGS J: The offender, Stafford Hambo, is before the court to be sentenced after being convicted of five counts of sexual touching of a child under the age of 16 years contrary to Section 229B(1)(a) of the Criminal Code. The offences were committed over a two-day period, 23 and 24 January 2008, at Ranara in the Ramu area of Madang Province. There are three victims, girls aged 8, 8 and 12 years respectively. Their names are "M", "K" and "R".

3. The offender pleaded not guilty to counts 1 to 4, so a trial was conducted on those counts. He was found guilty of counts 1, 2 and 3 and not guilty of count 4. He pleaded guilty to counts 5 and 6.

4. The three victims are related and were members of the one household. The offender is not related to them and did not live in the same house as them but lived in the same community and was well known to them. He held himself out to be, and was widely regarded in the local community as, a pastor. On the morning of 23 January he went to the victims' house, where the two eight-year-old girls, M and K, were alone. He told them that he had some oil and if he put it on them they will be filled with knowledge. They agreed to what he proposed. M was the first one. He took her into the kitchen, got her to remove her pants, then rubbed the oil (which was coconut oil) on her vagina with his hands (count 1). He told her to lie down and open her legs, which she did, and then he put his penis on her vagina and told her to wipe the oil (count 2). He then opened the Bible that he had with him and prayed to God to forgive his sin. He told her that if she told anyone about it the oil would kill her. He sent her to go outside and see if there was anyone else around. No one was there so he called K into the house, got her to remove her trousers, then held her buttocks with his hands (count 3). The next day he went back to the house where he found R. He asked her if he could anoint her with oil, to give her great knowledge and wisdom. She agreed and then he held her breasts with his hands (count 5). He then got her to remove her trousers and rubbed her vagina with his hands (count 6). He told her that if she told anyone about it the oil would kill her.

5. Further details of the circumstances in which the offences were committed are in the judgment on verdict (The State v Stafford Hambo (2010) N4036).

7. 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. He tendered the following written statement:

Your Honour, first of all, I would like to say sorry to God and to this Court for unlawfully breaking the law of my country Papua New Guinea.

Your Honour, if the court finds me guilty, I am asking for tender mercy on me, that the Court can give me enough time to serve and I can go back to my block:

(a) Because I am the only one in my family, no children, my wife and parents dead, and no-one to look after my block and everything in the block.

(b) Your Honour, I have suffered a long period of time, two years, five months now in Beon Kalabus as Wait Court and had enough of this pain because this is my first time to serve this kind of court.

I am too old and not healthy enough to endure more of this kind of suffering in prison. Through good behaviour bond, I am asking the court for tender mercy by sending me out to probation, if the Court gives me time to serve in prison.

8. The offender also presented a recent medical report by Dr Steven Toraso of Modilon General Hospital, which shows that he has a 'lump back', causing him to walk with a forward hunch. He suffers nerve discharges from the spine, lasting 30 to 60 minutes, which cause numbness over his chest and hands, trigger heartburn and make him prone to chest infections.

9. Stafford Hambo is 62 years old. He comes from the Gona area of Oro Province. His wife died in 2004 and their only child, a son, who was a police officer, was killed in West New Britain some years ago. He had been living at Bulolo for a long time and was visiting Ranara and staying with a Lutheran Church pastor when he committed these offences. He claims to be a pastor with the Anglican Revival Church. He is educated to grade 12, having graduated from Sogeri National High School in 1970. He has no formal employment record and appears to survive financially by subsistence farming. Little is known about his community record or other family relationships. There is no evidence of any reconciliation with the victims and no one has come forward to support him.

10. Mr Joseph urged the court to take into account the offender's advanced age and his medical condition. He is a first time offender, with no bad community record, so he should be considered for a suspended sentence. The sentences for each offence should be served concurrently as the offences were committed at the same place within a short space of time, he submitted.

11. Mr Kupmain highlighted the tender age of the victims. Regard should be had to the purpose of the child sex provisions of the Criminal Code, which is to protect young children against the sort of sexual abuse that occurred here. The age gap between the offender and the victims was large and this should be regarded as an aggravating factor as he was an adult man who knew exactly what he was doing. The sentences for counts 1 and 2 could be served concurrently, as could counts 5 and 6, but count 3 should be served separately. After applying the totality principle, an appropriate total sentence would be four to six years imprisonment, he submitted.

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

13. The offender has been convicted of five offences under Section 229B(1)(a) of the Criminal Code, committed in circumstances of aggravation, namely that for each offence the child was under the age of 12 years and that there was at the time of the offence an existing relationship of trust, authority or dependency between the accused and the child (as the offender was a religious instructor to each child, which is defined as a relationship of trust, authority or dependency under Section 6A(2)(e) of the Criminal Code). The significance of the circumstances of aggravation is that the maximum penalty for each offence is 12 years imprisonment.

15. Sentences have tended to fall within the range of three to six years imprisonment, as shown in the following table.

No	Case	Details	Sentence
1	The State v Paul Nelson (2005) N2844, Cannings J, Kimbe	Guilty plea – offender aged 65 – victim a 12-year-old girl – touching vagina with fingers.	3 years
2	The State v A Juvenile, "IO" (2005) CR No 1166 of 2004, Mogish J, Waigani	Trial – offender aged 15 – victim a 6 year-old girl – offender rubbed his penis against victim's vagina.	4 years
3	The State v Kagewa Tanang (2005) N2941, Kirriwom J, Finschhafen	Guilty plea – offender aged 41 – victim a 10-year-old girl – touching of vagina with fingers, attempted penetration of vagina, rubbing of penis on vagina.	6 years
4	The State v Thomas Tukaliu (2006) N3026, Lenalia J, Kokopo	Guilty plea on two counts – offender an adult male – victim a 10-year-old girl – touching of vagina with fingers.	5 years
5	The State v William Patangala (2006) N3027, Lenalia J, Kokopo	Guilty plea – offender an adult male – victim a 14-year-old girl – fondling of breasts, sucking nipples.	5 years
6	The State v Timothy Bipi (2009) N3608, Cannings J, Kimbe	Guilty plea – offender aged 15 – victim a 7-year-old girl – touching vagina with fingers.	2 years
7	The State v Steven Archie (2009) N3727, Cannings J, Buka	Guilty plea – offender aged 18 – victim a 13-year-old girl – putting penis against vagina.	3 years
8	The State v A Juvenile, "GS", CR 80/2009, 20.05.10, Cannings J, Madang	Guilty plea – offender aged 13 – victim a 6-year-old girl – touching vagina with fingers.	2 years

16. The offender is being sentenced for five offences. The court must therefore arrive at a notional sentence for each offence before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the total sentence. I will begin by examining count 1 in detail and allocate a sentence for it, and then consider each of the other four counts, comparing each to count 1 and allocating a sentence for each.

19. Taking all those factors into account and comparing this case with the precedents outlined earlier, I impose a sentence of four years imprisonment.

20. This offence is very similar to count 1. I impose the same sentence: four years imprisonment.

21. This is a slightly less serious offence than counts 1 and 2, in view of the part of the body touched by the offender. The appropriate sentence is three years imprisonment.

22. The offender was found not guilty, so no sentence is to be allocated to this count.

23. The victim of this offence was considerably older (aged 12) than the other victims (aged 8). This makes the circumstances of the offence not as grave. Also the offender pleaded guilty to this offence. The appropriate sentence is two years imprisonment.

24. This offence is very similar to count 5. I impose the same sentence: two years imprisonment.

25. The general rule is that if two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88). Here, there were three different incidents and three different victims. It follows that:

26. The total potential sentence is thus reduced to 4 + 3 + 2 years = 9 years imprisonment.

27. I now look at the total sentence that the offender is potentially facing to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing crushing sentences, those that are over the top or manifestly excessive. The offender is now 62 years old and there is evidence before the court which shows that he has a serious medical condition. I have already taken these matters into account as mitigating factors when determining the notional sentences allocated to each offence but I think it is appropriate to take them into account again when deciding whether a nine-year prison term would be an excessive sentence.

28. In The State v Ereman Kepas (2007) N3192 I sentenced a 61-year-old male offender to a term of 12 years imprisonment on a charge of persistent sexual abuse of a child, his 10-year-old adopted daughter. The abuse was constituted by five instances of sexual touching and one instance of sexual penetration, which caused serious physical injury to the victim. I indicated that if that offender were to be sentenced disregarding his advanced age and his medical condition, the sentence would have to be amongst the highest ever imposed for this sort of offence, ie in the range of 25 to 30 years imprisonment. However, I regarded the offender's advanced age and his medical condition as major mitigating factors. I did not feel that the cause of justice would be served by subjecting a 61-year-old man to a 25-year sentence. It would leave him little prospect but to die in prison as an old and ill man. I therefore imposed a sentence of about half of what would otherwise be warranted. I have taken a similar approach in other cases involving offenders of an advanced age who have been convicted of child sex offences, eg The State v Kikia Solowet, CR No 296 of 2006, 24.08.07 (60-year-old man convicted of persistent sexual abuse of his nine-year-old niece, who was living in the family home, sentenced to ten years imprisonment, in circumstances where a prison term of double that length was otherwise warranted) and The State v Arnold Kulami, CR No 737 of 2007, 26.06.09 (50-year-old man convicted of engaging in an act of sexual penetration of his six-year-old niece, sentenced to 17 years imprisonment, in circumstances where a prison term of 25 years was otherwise warranted).

29. Given Stafford Hambo's age and his medical condition I consider that a prison term of nine years would be a crushing sentence. I will therefore reduce the term to six years imprisonment, apportioned as follows: counts 1 & 2: 3 years + count 3: 2 years + counts 5 & 6: 1 year = 6 years.

30. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment, the whole of the pre-sentence period which is 2 years, 6 months, 2 weeks, 4 days.

31. There is nothing in the pre-sentence report to warrant suspension of the sentence, there being no evidence of reconciliation with the victims or forgiveness or other resolution of the problems created by the offender. I have already taken the offender's age and medical condition into account at two stages of the decision-making process. I decline to suspend any part of the sentence.

32. Stafford Hambo, having been convicted of five counts of sexual touching of a child under the age of 16 years contrary to Section 229B(1)(a) of the Criminal Code in circumstances of aggravation under Sections 229B(4) and (5) of the Criminal Code on each count, namely that the child was under the age of 12 years and that there was at the time of the offence an existing relationship of trust, authority or dependency between the accused and the child, is subject to the following total sentence:

Length of sentence imposed	6 years
Pre-sentence period to be deducted	2 years, 6 months, 2 weeks, 4 days
Resultant length of sentence to be served	3 years, 5 months, 1 week, 3 days
Amount of sentence suspended	Nil
Time to be served in custody	3 years, 5 months, 1 week, 3 days
Place of custody	Beon Correctional Institution

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the offender

National Court of Papua New Guinea

State v Hambo [2010] PGNC 125; N4120 (12 August 2010)