State v Kuse [2011] PGNC 54; N4304 (2 June 2011)

N4304

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1541 OF 2010

THE STATE

V

TONAI KUSE

Madang: Cannings J
2011: 24 March, 24 May, 2 June

SENTENCE

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

A 69-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 ten 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; and an appropriate starting point is 6 years imprisonment.

(2) Mitigating factors are: no weapon or aggravated violence used against 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, of an advanced age.

(3) Aggravating factors are: large age gap (58 years) between the offender and the victim; tender age of the victim; he took advantage of a very vulnerable girl; he was attempting penetration.

(4) The head sentence imposed was four years imprisonment. The pre-sentence period in custody was deducted from the sentence and two years of the sentence was suspended as the pre-sentence report raised the prospect of customary reconciliation with the victim and her family.

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 Elias Dambun CR No 1030 of 2010, 24.05.10
The State v Gerard Apeau CR 1658/2006, 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

P Kaluwin & A Kupmain, for the State
R C Pinggah & D Joseph, for the offender

2 June, 2011

1. CANNINGS J: The offender, Tonai Kuse, 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 Moil village in the Amele area of Madang Province at 9.00 am on Friday 23 April 2010. The offender asked the victim, a ten-year-old girl, "W", who was in a garden, to go with him to collect betel nut in nearby bushes. She followed him into the bushes, where he got her to lie down. He removed her clothes and lay on top of her, and attempted to penetrate her vagina with his penis, thus touching the sexual parts of her body for sexual purposes before being interrupted by the victim's mother.

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:

This is my first time to be in court. I am 69 years old. I apologise to the court for what I have done. I also say sorry to the small girl and her family. I ask the court to give me a non-custodial sentence so that I can go back to the village and serve the sentence there on probation.

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 Tonai Kuse

Age : 69
Origin : Amele, Madang Province
Upbringing : Village
Marital status : Married
Dependants : 11 children
Family : Eldest in a family of 10
Education : Grade 6, Sugaie Community School
Employment : No formal employment
Occupation : Subsistence farmer
Health : Sound
Religion : Unknown

Other aspects of the offender's life

6. The offender has been a villager all his life. He is a well known member of the local community. His eldest daughters are very concerned about him and do not want to see him spend much time in prison. The victim's mother is very concerned about the psychological effect of the crime on her daughter but appears willing to have the offender back in the local community provided he reconciles with her daughter and other members of the family in accordance with local custom.

SUBMISSIONS BY DEFENCE COUNSEL

7. Ms Pinggah urged the court to take into account that the offender pleaded guilty, he has no prior convictions and no bad community record. He is an old man and should be given a reasonable time in custody. He should be given a sentence of no more than four years. The court should exercise its discretion to suspend the balance of the sentence after deducting the pre-sentence period in custody, she submitted.

SUBMISSIONS BY THE STATE

8. Mr Kaluwin highlighted the tender age of the victim and the large age gap between her and the offender. He took advantage of a young child. An aggravating feature of the case is that the offender was attempting sexual penetration. He does not deserve leniency due to his age. He deserves to spend time in prison, Mr Kaluwin submitted.

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 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
10	The State v Elias Dambun CR No 1030 of 2010, 24.05.11, Cannings J, Madang	Guilty plea – offender aged 46 – victim an 8-year-old girl – touching of vagina with penis.	4 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;
• 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 since commission of the offence;
• he pleaded guilty;
• he has expressed some remorse;
• he is a first-time offender;
• he is a man of advanced age.
  

15. Aggravating factors are:

• large age gap (58 years) between the offender and the victim;
• tender age of the victim;
• he took advantage of a very vulnerable girl;
• he was attempting penetration.
  

16. There are more mitigating factors than aggravating factors so a sentence below the starting point is warranted. I agree with the defence counsel's submission that the offender's advanced age is something that must be given special weight as a mitigating factor. 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?

17. 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 one year, one month.

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

18. There are two significant differences between this case and the recent case of Elias Dambun, which resulted in a sentence of four years imprisonment with no suspension. First, the present offender, aged 69, is considerably older than the offender in that case, who was aged 47. Secondly, in the present case the pre-sentence report reveals that there is some prospect of customary reconciliation, whereas in Dambun, no information of that sort was available on which the court could base a decision to suspend any part of the sentence.

19. Despite the psychological damage the incident has already caused to both her daughter and herself, the mother of the victim has expressed a willingness to bring about reconciliation between the offender and the victim and other members of the family, in accordance with local custom. I will therefore suspend half of the sentence, subject to conditions. This will mean that the offender will spend some more time in custody (which will underlie the gravity of the offence) but will then be permitted to serve the balance of the sentence on probation (which will provide the opportunity for reconciliation and accommodate the fact that he is an older-aged man who should have learned a valuable lesson from his experience in custody and be able to return to the community).

20. The conditions to which the suspended part of the sentence is subject are that the offender:

(a) must report to the Probation Office within three days after the date of release from custody;

(b) must participate in a reconciliation ceremony with the victim, supervised and witnessed by the Village Court and the Probation Office, within one month after the date of release from custody, and at the reconciliation ceremony:

• he must give K500.00 cash + foodstuffs to the victim;
• the victim's family must contribute 5 chickens + foodstuffs;
  

and, within one week after the reconciliation ceremony, the Probation Office shall provide a report of the reconciliation ceremony to the National Court in Madang;

(c) must reside at his village and nowhere else except with the written approval of the National Court;

(d) must not leave Madang Province without the written approval of the National Court;

(e) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;

(f) must attend his local Church every weekend for service and worship and submit to counselling;

(g) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;

(h) must not consume alcohol or drugs;

(i) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and her family;

(j) must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody;

(k) if he breaches any one or more of the above conditions, shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

21. Tonai Kuse, 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, 1 month
Resultant length of sentence to be served	2 years, 11 months
Amount of sentence suspended	2 years
Time to be served in custody	11 months
Place of custody	Beon Correctional Institution

Sentenced accordingly.
_________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender