State v Joseph [2010] PGNC 261; N4179 (22 October 2010)

N4179

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 629 OF 2009

STATE

V

MOSES JOSEPH

Alotau: Manuhu, J.
2010: 6, 20 & 22 October,

CRIMINAL LAW – Particular offence – Sexual Penetration – Sentence – Compensation – Customary land is significant compensation.

CRIMINAL LAW – Practice and procedure – Guilty plea – Evidentiary cloud over element of penetration – Plea of guilty not vacated – Sentence imposed to be within range of sentence for lesser offence of sexual touching.

No case cited.

Counsel:

L. Kuvi, for the State.
E. Wurr, for the Prisoner.

22 October, 2010.

1. MANUHU, J.: The prisoner, Moses Joseph, pleaded guilty to one count of sexual penetration of a girl under the age of 16 years. This is the ruling on sentence.

2. The victim was 8 years old at the time of the offence. She was still a child and was never in a position to make a decision on whether to have sex or not. Consent from an 8 year old child is not the same as consent from an adult woman. The offence was committed in the garden. The victim went to the prisoner to get matches. The prisoner asked her for sex and had sexual intercourse with her.

3. It may be difficult to comprehend sexual penetration of an 8 year old girl. It appears from the record of interview that penetration was achieved. However, it appears from answer to Question 51 that there was no penetration. The medical evidence suggests that the vaginal opening was larger. This may have been caused by the prisoner on previous occasions, which is not the subject of the charge, or at the time of the sexual assault in question. I say this because the medical report does not state whether the enlarged vaginal opening could accommodate penile penetration. All of these matters were overlooked because I took the prisoner's plea of guilty as his final position despite the cloud over the element of penetration.

4. However, the prisoner has contradicted his plea of guilty by telling the probation officer that "he did not sexually penetrate the victim. He said he rubbed his penis on the vagina and ejaculated his sperm on the outside of the vagina." The prisoner could be correct because the victim was only 8 years old and, as I have said, the medical report does not clearly state whether the enlarged vaginal opening could accommodate penile penetration by an adult man.

5. Procedurally, the prisoner's plea of guilty should be vacated and the matter should be tried on the element of penetration. However, I have decided against vacating the plea and in its stead will consider a sentence within the range of sentence for sexual touching.

6. The charge is serious and sexual assaults of children should not be condoned. However, I have decided to proceed in this manner given, among other things, the back log of cases in the Alotau Crimes List. There is one matter that was registered in 1999, one in 2007 and nine for 2008. There will not be another circuit until 2011. It is administratively convenient therefore to have this case disposed of rather than have it listed for a possible delayed trial that could result in a conviction for sexual touching.

7. The prisoner is 47 years old. He is married with 2 daughters. He completed Grade 5 and had one year training at DPI institution at Bubuleta. The probation report shows that his family has been mistreated since his arrest. The situation has normalized after he was granted bail but it is feared that the mistreatment may continue if the prisoner is sent to jail.

8. The mistreatment is unfortunate. It is being carried out by people who do not understand that the prisoner's family and wife, in particular, have done the right thing by reporting the matter to the police. The prisoner is understandably concerned about the welfare of his children and family. One of his daughters is sick. His son is mentally ill. His wife is from Sepik.

9. He said he has been involved with church activities and stands in for the priest on Sundays. He is the Catholic Christian Community Chairman. He is also the Vice – Coordinator for the youths. He has also been elected as Area Committee for Gamadoudou, Kilakilana and Gibara.

10. The prisoner, to his credit, has pleaded guilty and cooperated with the police. In doing so, he has saved the State time and money it would have spent to bring in witnesses. The prisoner is remorseful. This is his first time in Court.

11. He ought to understand, however, that the victim was only a child. She was not an adult. She called the prisoner bubu because the prisoner is her step grandfather. The prisoner was in a position of trust. He was supposed to be concerned for the victim's upbringing and her general welfare. Many good things may be said about the prisoner but what he did to the victim is beyond comprehension.

12. In the circumstances, a sentence of 4 to 6 years would ordinarily be appropriate. However, the prisoner has done a lot in respect of compensation. He has paid K1000 in cash, 8 baskets of food and 2 hectares of customary land to the victim's father. This is the first time that I have seen an offender giving away customary land as compensation. Land is a significant compensation and in my view should feature significantly as a mitigating factor. The compensation does not restore the injury to the victim but the giving away of customary land shows the genuineness of the prisoner's remorse. He is prepared to lose land for what he did.

11. In the circumstances, I will impose a sentence of 6 years. Half of that is suspended on condition the prisoner enters into a good behavior bond for 3 years. The prisoner has been in custody for 6 months and 3 weeks. He is to serve the remaining sentence of 2 years, 5 months and one week in hard labour. His bail money shall be refunded.

______________________________

J.W.Tamate, Acting Public Prosecutor: Lawyer for the State
F Pitpit, Public Solicitor: Lawyer for the Prisoner