State v Ateika [2010] PGNC 25; N3962 (19 March 2010)

N3962

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1208 & 1209 of 2008

THE STATE

V

LEVI ATEIKA

Kokopo: Sawong, J.
2010: 10, 19 March

CRIMINAL LAW – Sentence – Plea – two counts of sexual touching for sexual purposes – Prisoner age 35 – victims aged 9 years – pre-existing relationship of trust, authority or dependency – s229A Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

CRIMINAL LAW – Sexual Touching – Plea – Sentence – concurrent or cumulative – Total effective Sentence – 5 years imprisonment.

Legislation cited

Criminal Code (Sexual Offences and Crimes Against Children) Act 2002

Cases Cited

State v Kiddi Subai (2004) N2553
State v Thomas Angu (2005) N2830
State v Kagewa Tanang (2005) N2941
State v Gerard Jabigut (2006) CR 284 of 2005.

Counsel

S. Luben, for the State
M. Efi, for the Accused

19 March, 2010

1. SAWONG, J: The Accused pleaded guilty to two (2) counts of sexual touching with aggravating factors two young girls under the age of 16 years, a crime contrary to s.229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. On 10 March, 2010, I convicted him and after hearing him on his allocutus, and submissions from his Counsel and Ms. Luben for the State, I adjourned sentencing him. He is now being considered for sentence

2. The relevant facts are these. The two girls, DR and AS who are cousins were about 9 years old at the time of the incident. One day in June 2008, the girls returned from school and were at DR’s house preparing to cook some food. As they were preparing, the prisoner approached them. He is married to the elder sister of AS’s mother. And so he is a close relative to the two girls. Upon arriving, he told the girls to follow him to his block or plot of land where he had a house. The girls followed him to his house. Upon arriving there, he told AS and one other small girl to go into his cocoa block and gather some dry firewood. He then invited DR into his house and into his bedroom. In the bedroom, he told her to lie on the bed. He then removed all her clothes and using his finger he rubbed some sort of oil on her body. In the process he touched her vagina, then kissed her vagina and subsequently put his penis onto her vagina. He then ejaculated on her vagina. After that she left.

3. A few minutes later, he called the other girl, AS to also go into the bedroom where he also removed her clothes, and told her lie naked on the bed. Again using an oil, he used his finger to rub the oil all over her body, and eventually rubbed the oil on her vagina. He then kissed her vagina and also put his penis onto her vagina and ejaculated. After that he gave 50t and she left.

4. The two girls were both aged about 9 years old. They were certainly under the age of 16 years.

5. As I had alluded earlier, the Prisoner was in a position of trust, dependency or authority towards the two girls, because he was related to them by marriage. He was married to the elder sister of AS’s mother.

Prisoner

6. The prisoner is aged 35 years and originally came from the Morobe Province. He is now married to a woman from East New Britain. They have 4 young children, whose ages range between 16 years and 11 years old. Up until he committed the offence, he was living with his family on their block of land at Warena Resettlement Block. He completed grade 10 and was once employed as a store man clerk. At the time of the offence, he was working as subsistence farmer. His is a first offender.

7. On his allocutus, he expressed remorse to the Court for what he did. He did not express any remorse to the victims. He told the Court that the relatives of the victims assaulted him badly and as a result he suffered a broken jaw. He further told the Court that whilst he was in custody he assisted the police in stopping a mass break out by 52 remandees and prisoners and that since he was released on bail, he has been helping the police in maintaining law and order in the Community. He is also the chairman of the board of governors of the local elementary school. He said he is concerned about the welfare of his children and family in that if he is imprisoned for a lengthy period they would suffer. In the end he asked the Court for a wholly non-custodial sentence.

Submissions

8. Mr. Efi, counsel for the prisoner submitted that in order for the Court to consider an appropriate sentence, the Court should consider sentences imposed by the National Court for the same or similar offences in other cases. He then referred me to several cases such as State v Kiddi Subai (2004) N 2553, State v Thomas Angu (2005) N2830, State v Kagewa Tanang (2005) N2941, State v Gerard Jabigut (2006) CR 284 of 2005.

9. He submitted that the Court accept the following mitigating factors, namely;

• The offender has pleaded guilty to two Counts. This has saved the Court and the State time and resources in monitoring a trial. More importantly, his plea has saved the two girls from coming to Court and retelling the whole incident and being subjected to cross-examination.
  
• That he has repeatedly expressed remorse to the Court.
  
• That threats or force were used by the prisoner.
  
• That the victims had not suffered any physical injuries.
  
• That this was a one off incident.
  
• That he co-operated with the police and readily made admissions.
  
• That he is a first time offender.
  

10. He submitted that considering the facts and circumstances of this case, this case is not a worst type of a case of sexual touching. He conceded that what was particularly bad about this case was that the prisoner was in a position of trust, dependency or authority towards the two young girls. He also informed the Court that no compensation has been paid. In the end he submitted that a part suspended sentence would be appropriate.

11. Ms. Luben on the other hand submitted that a custodial sentence was appropriate given the circumstances of the case.

12. She also submitted this offence is increasing and is serious and prevalent offence against very young girls. She too referred me to several authorities in support of her submissions. These include State v Thomas Tukaliu (CR 910/05 (2006), State v William Patangala (CR 800/04).

13. In addition she submitted that the prisoner has expressed no remorse to the victims, and no compensation has been paid to them. These are factors against the prisoner.

Section 299B reads:

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.

(2) For the purposes of this section, "sexual parts" includes the genital area, groin, buttocks or breasts of a person.

(3) For the purposes of this section, a person who 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 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 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. In my view, there are several sentencing ranges set out by Section 299 (B);

• Up to 7 years imprisonment if the child is under the age of 16 years, or
  
• Up to 12 years imprisonment if the child is under the age of 12 years, or
  
• Up to 12 years if there was an existing relationship of trust, authority or dependency between the child and the offender, at the time of the offence.
  

15. Various National Court Judges have since the amendments were made, imposed different sentences involving cases of sexual touching of children. These sentences range from part suspended sentences to wholly custodial ones.

16. In State v Kiddi Sorari (2004) N2553, the prisoner abducted a 6 year old, using a weapon to threaten her and took her away into the bush. He then assaulted her, and tried to push his fingers into her genital. She suffered some bruises to her genital. Accused was a 14 year old first time offender. He pleaded guilty and was sentenced to 5 years imprisonment. None of that sentence was suspended.

17. In the State v Thomas Angup (2005) N2830, the prisoner was convicted on a plea of guilty of 1 count of sexual touching of a girl under the age of 12 years, in 1998, one count of sexual penetration of a child under the age of 12 years in 1998, two counts of sexual penetration of a girl under the age of 16 years, one in 2000 and one in 2003, on unspecified date, all in breach of an existing relationship of trust. The charge arose out of a pattern of sexual abuse over a period of 6 years. The Complainant became pregnant and bore a child before she became 16 years and her schooling was terminated. The prisoner was 34 years old at time of conviction. In relation to the first count, he was sentenced to 4 years imprisonment. This was made concurrently with the sentence for the other offence.

18. In State v Kagewa Tanang (2003) N 2941, the prisoner pleaded guilty to one count of sexual touching a 10 year old girl. He was 41 year old man. He was sentenced to 6 years. There was an existing relationship of trust.

19. It is quite clear in mind that the sentence prescribed by law is meant to afford greater protection to child victims of sexual offences.

20. In his favour, I accept the following mitigating factors. He has pleaded guilty to both counts. His guilty plea has saved the State time and resources of conducting trial. But more importantly it has saved the two young girls from coming to Court and retelling and living their ordeal in front of complete strangers and being subjected to cross-examination.

21. He had said sorry to the Court several times. He did not use any force or weapons or threats in committing the offences. He also co-operated well with the police when he was apprehended, as shown by his admissions in the record of interview. He is a first time offender. I also note in your favour that you were badly assaulted resulting in broken jaw. I have given some weight to your assistance to the police since you were released on bail.

22. On the other hand, what you did is unacceptable. You breached the trust that you have towards these little girls. They are related to you. You have not expressed any remorse to them nor have you made any attempt to compensate them for the wrong you did. I am mindful that sexual abuse of very young girls by close relatives are increasing. The Community is calling for more harsh sentences. I cannot ignore this general Community feeling of utter disgust at such conduct, especially by adult males.

23. In the circumstances, I think that short sharp sentence should be imposed upon. Non of that should be suspended. For those reasons, you are convicted and sentenced to 5 years imprisonment in hard labour on each count.

24. The next question is whether the sentences should be made concurrent or cumulative. Neither Counsel addressed their minds to this issue. In that regard I bear in mind the totality principle of sentencing. I am guided by the sentencing principles set out in Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, Mase v The State [1991] PNGLR 88.

25. On the other hand the prisoner should not be punished for the acts of other people who have committed similar offences. He must be sentenced for the offence he committed. In my view, in the present case, the possible maximum sentence the prisoner would be sentenced to would be 12 years each on each count. If the two sentences, I have imposed are made cumulative, the sentence would be 10 years. That would be closer to the maximum sentence. Given the facts and circumstances of this case, such a sentence would be, in my view excessive.

26. In my view as the offences arose out of closely related facts, the sentences should be made concurrent. The total effective sentence is therefore 5 years imprisonment. From that head sentence, I deduct the period of time he has already spent in custody, leaving the balance to be served at Kerevat Corrective Institution.

_______________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused