State v Dambun [2011] PGNC 329; N4303 (24 May 2011)

N4303

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1030 OF 2010

THE STATE

V

ELIAS DAMBUN

Madang: Cannings J
2011: 5 April, 17, 24 May

SENTENCE

CRIMINAL LAW – sentence – sexual touching of child – Criminal Code, Section 229B – guilty plea – one offence – adult male offender, eight-year-old female victim – sentence of 4 years imprisonment.

A 47-year-old man pleaded guilty to one count of sexually touching a child under the age of 16 years contrary to Section 229B(1)(a) of the Criminal Code. The victim was eight years old. This is the judgment on sentence.

Held:

(1) The offence was committed in circumstances of aggravation in that the child was under the age of 12 years. The maximum penalty is 12 years imprisonment. An appropriate starting point is 6 years imprisonment.

(2) Mitigating factors are: no weapon or aggravated violence used against the victim; no physical injury to the victim; it was a spontaneous, unplanned and one-off incident, something that was out of character for the offender to do; the offender has caused no further trouble; he pleaded guilty; he is a first-time offender.

(3) Aggravating factors are: large age gap (38 years) between the offender and the victim; tender age of the victim; he took advantage of a very vulnerable girl.

(4) The head sentence imposed was four years imprisonment. The pre-sentence period in custody was deducted from the sentence but none of the sentence was suspended as the pre-sentence report did not warrant probation, there being no evidence of reconciliation with the victim or forgiveness or other resolution of the problem created by the offender.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v A Juvenile, "IO" (2005) CR No 1166 of 2004
The State v Gerard Apeau CR 1658 of 2006, 27.03.07
The State v Kagewa Tanang (2005) N2941
The State v Paul Nelson (2005) N2844
The State v Stafford Hambo (2010) N4120
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

SENTENCE

This was a judgment on sentence for an offender who was convicted of one count of sexual touching of a child under the age of 16 years.

Counsel

M Pil, for the State
A Meten & A Turi, for the offender

24 May, 2011

1. CANNINGS J: The offender, Elias Dambun, pleaded guilty to one count of sexual touching of a child under the age of 16 years, in circumstances of aggravation in that the child was under the age of 12 years. This is his sentence. The offence was committed at Wagol Fikus, Madang, on Saturday 27 March 2010. The offender took the victim, an eight year-old girl, "G", to his house, where he took off her clothes and his clothes. He got her to lie down and he lay on top of her, thus touching the sexual parts of her body for sexual purposes.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. 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 said:

I say sorry for what I have done. I had no intention of doing this. I have four children and I feel sorry for them as they have been out of school for a year due to non-payment of school fees. I rely on informal sector income, such as sale of betel nut; I usually make K10.00 to K15.00 per day though I run into problems when the town authorities chase me away. I am prepared to pay compensation to the victim but this is hard when I have little or no income.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard I take into account that this was a spontaneous, unplanned and one-off incident, something that was out of character for the offender to do.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service.

Personal details of Elias Dambun

Age : 47
Origin : Kambot, Angorum District, East Sepik Province
Upbringing : Village and Madang
Marital status : Divorced
Dependants : 4 children
Family : Father deceased, mother alive, 7 siblings
Education : Grade 3, Kambot Primary
Employment : No formal employment
Occupation : Informal sector
Health : Sound
Religion : Catholic

Other aspects of the offender's life

6. The offender came to live at Wagol Fikus in 1974 following the death of his father and has been there ever since. He was married to a woman (the mother of his four children) who, he says, left him in 2006, leaving the children with him. He has since then been a single father. He intends returning to Wagol Fikus when he is released from custody. Neither the offender's relatives nor the victim's relatives (or the victim herself) were interviewed for the purposes of the report.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mrs Meten urged the court to take into account that the offender has no prior convictions and no bad community record. Compared to other cases, he should be given a sentence of no more than four years. The court should also consider the welfare of the offender's four children and exercise its discretion to suspend the balance of the sentence after deducting the pre-sentence period in custody.

SUBMISSIONS BY THE STATE

8. Mr Pil highlighted the tender age of the victim and the large age gap between her and the offender. An aggravating factor, he submitted, was that the offender was attempting sexual penetration. An appropriate total sentence would be five years imprisonment. The State had no objection to part of the balance of the sentence being suspended.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. The offender has been convicted of an offence under Section 229B(1)(a) of the Criminal Code in circumstances of aggravation under Section 229B(4), namely that the child was under the age of 12 years. The maximum penalty is therefore 12 years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. I will use the mid-point of six years as the starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

12. Sentences have tended to fall within the range of three to six years imprisonment. Examples are shown in the following table.

RECENT SENTENCES FOR SEXUAL TOUCHING

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 of 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 and attempted penetration of vagina with penis and 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 and sucking of nipples.	5 years
6	The State v Gerard Apeau CR 1658/2006, 27.03.07, Cannings J, Kimbe	Guilty plea – offender aged 34 – victim his 8-year-old stepdaughter – rubbing of penis on the vagina.	6 years
7	The State v Steven Archie (2009) N3727, Cannings J, Buka	Guilty plea – offender aged 19 – victim a 13-year-old girl – putting penis against vagina – attempting penetration but interrupted.	3 years

8	The State v Timothy Bipi (2009) N3608, Cannings J, Kimbe	Guilty plea – offender aged 15 – victim a 7-year-old girl – touching of vagina with fingers.	2 years
9	The State v Stafford Hambo (2010) N4120, Cannings J, Madang	Trial & guilty pleas – 62-year-old male offender – five offences, three victims, girls aged 8, 8 and 12 years respectively.	6 years

STEP 4: WHAT IS THE HEAD SENTENCE?

13. The head sentence will reflect the following mitigating and aggravating factors.

14. Mitigating factors:

• no weapon or aggravated violence used against the victim;
• no physical injury to the victim;
• it was a spontaneous, unplanned and one-off incident, something that was out of character for the offender to do;
• the offender has caused no further trouble;
• he pleaded guilty;
• he is a first-time offender.
  

15. Aggravating factors are:

• large age gap (38 years) between the offender and the victim;
• tender age of the victim;
• he took advantage of a very vulnerable girl.
  

16. I reject the prosecutor's submission that an aggravating factor is that the offender was attempting sexual penetration of the child. There is insufficient evidence that that was what he was intending to do and it did not form part of the set of facts to which the offender pleaded guilty. If the State intended to rely on this as an aggravating factor it should have been included in the allegations put to the accused upon arraignment.

17. There are more mitigating factors than aggravating factors so a sentence below the starting point is warranted. This case is less serious than a number of the cases referred to earlier. I agree with the defence counsel's submission as to the appropriate head sentence. I fix a head sentence of four years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. 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 in custody, which is deemed to be one year, two months.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

19. There is nothing in the pre-sentence report to warrant suspension of the sentence, there being no evidence of reconciliation with the victim or forgiveness or other resolution of the problem created by the offender. I acknowledge that this will make life difficult for the offender's children and for those who have assumed responsibility for looking after them. Unfortunately that is the price that must be paid when a person commits a very serious offence of this nature.

SENTENCE

20. Elias Dambun, having been convicted of one count 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 Section 229B(4), namely that the child was under the age of 12 years, is subject to the following total sentence:

Length of sentence imposed	4 years
Pre-sentence period to be deducted	1 year, 2 months
Resultant length of sentence to be served	2 years, 10 months
Amount of sentence suspended	Nil
Time to be served in custody	2 years, 10 months
Place of custody	Beon Correctional Institution

Sentenced accordingly.
_________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender