State v Philip [2012] PGNC 165; N4829 (22 October 2012)

N4829

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.83 of 2012

BETWEEN:

THE STATE

AND:

GEORGE PHILIP
Prisoner

Mt Hagen: David, J
2012: 14 September,
17 & 22 October

CRIMINAL LAW – sentence – sexual touching of victim's vagina using fingers – victim aged 6 years at the time of offence – prisoner aged 16 years at the time of offence - injuries to vagina including a perforated hymen - sentence of 5 years imposed – Criminal Code, Section 229B (1)(a)(4).

Cases cited:

Public Prosecutor v Don Hale (1998) SC564
The State v Kagewa Tanang (2003) N2941
The State v Kiddi Sorari (2004) N2553
The State v Thomas Angup (2005) N2830
The State v Paul Nelson (2005) N2844
The State v Thomas Tukaliu (2006) N3026
The State v William Patangala (2006) N3027
The State v Brady Meki (2006) N3391
The State v Alexander Junior Nara, CR 1236 of 2004, Unreported & Unnumbered Judgment of Davani, J delivered at Kimbe on 17 April 2007
The State v Wasa David Warifa (2007) N3308
The State v Timothy Bipi (2009) N3608
The State v Jack Manuel Narakavi (2009) N3737
The State v Levi Ateika (2010) N3962
The State v Tonny Koim, CR 1245 of 2009, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 14 October 2011
The State v Tala John, CR No.548 of 2011, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 11 April 2012

Counsel:
Joe Kesan & Philip Tengdui, for the State
Philip L. Kapi, for the prisoner

SENTENCE

1. DAVID, J: On 14 September 2012, the prisoner appeared before me from custody and was convicted on a plea of guilty to a charge of sexual touching with his fingers, the vagina of JD, a female child under the age of 12 years who was then aged 6 years (the complainant), on an unknown date between 1 August 2011 and 5 October 2011 at St. Paul's Compound, Mt. Hagen in the Western Highlands Province contrary to Section 229B (1)(a)(4) of the Criminal Code.
   

2. The maximum penalty for the offence of sexual touching simpliciter is a term not exceeding 7 years. However, where the offence is committed in a circumstance of aggravation specified under Sections 229B (4) or (5), i.e., the child is under the age of 12 years or there was an existing relationship of trust, authority and dependency, an offender is liable to imprisonment for a term not exceeding 12 years. These penalties are subject to the Court's discretion to impose a lesser sentence under the various options available to the Court under Section 19 of the Code.

3. I directed the Probation Service, Mt. Hagen Branch to furnish a Pre-sentence report in relation to the prisoner following application by his legal representative and deferred hearing submissions on sentence to 17 October 2012 at 9:30 am. The pre-sentence report was duly compiled and filed and I thank Ms. Songoa, Probation Officer for furnishing the report. I have considered the report.

4. I heard submissions on sentence on 17 October 2012 and deferred my decision on sentence which I now deliver.

5. The prisoner was arraigned with these short facts. On an unknown date between 1 August 2011 and 5 October 2011, the prisoner was in the company of the complainant and her younger sister at the St. Paul's Compound, Mt. Hagen in the Western Highlands Province. Whilst together during the day, they ate some rice. After eating, the complainant and her younger sister were trying to walk out and play outside when the prisoner grabbed the complainant and pulled her into the house. He took her into the bedroom, got in the bed and covered both of them with a blanket. He then used his fingers to rub the complainant's vagina and anus. Sometime later, the complainant developed some sores around the vaginal area. It was then that the incident giving rise to the sores was discovered and the matter was reported to the police.

6. The medical report furnished by Dr. Zzferio, O & G Service Registrar of the Mt. Hagen General Hospital dated 31 October 2011 confirms that when the complainant was examined at the hospital, she had a perforated hymen suggesting that she was sexually penetrated through her vagina.

7. The prisoner is originally from Tepe village, Nipa in the Southern Highlands Province, but had been residing at Pultimb village, Hagen Central in the Western Highlands Province with his mother's relatives for about 5 years when he committed the offence. Prior to committing the offence, he was engaged by Oilmin Holdings Limited as a cleaner and security guard at its facility at the Kagamuga Airport, Mt. Hagen and was paid about K150.00 per fortnight. He is now 17 years old and single. He is one of 2 siblings in his family. The other is a sister. His parents separated when they were very young and they have been brought up by his mother and her relatives. His mother died in 2006. His father has remarried and also resides with his new wife at Pultimb village. The highest formal education he has received is Grade 2 from the Songura Primary School, Nipa. His parent's marital problems caused him to leave school prematurely. He has been in custody since 9 October 2011 and that works out to be 1 year and 13 days.

8. The prisoner has no prior convictions.

9. On his allocutus, the prisoner said sorry to the Court, the complainant and her relatives and pleaded for mercy. He asked the Court to consider in his favour that he was a first offender.

10. In mitigation, it was submitted by the prisoner that; first, he pleaded guilty; second, he was a first offender; third, he expressed remorse; fourth, this was an isolated incident; fifth, there was no pre-planning; sixth, no weapon was employed to commit the offence; seventh, he was a juvenile offender at the time of the offence; and eighth, he was a victim of a broken marriage.

11. Mr. Kapi of counsel for the prisoner submitted that strong mitigating factors in the present case were that the prisoner was a juvenile offender and the prisoner was a victim of a broken marriage.

12. Mr. Kapi further submitted that this case was not as serious as The State v Tala John, CR No.548 of 2011, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 11 April 2012 where a sentence of 6 years was imposed. He suggested therefore that a sentence between 4 to 5 years partly suspended was appropriate in the circumstances of the present case.

13. In Tala John, the prisoner was the biological father of the complainant. He was convicted on a plea of guilty to sexual touching of the complainant's vagina using his fingers in circumstances of aggravation under Section 229B (1)(a)(4) and (5) of the Code. The complainant was aged 10 years and the prisoner aged 35 years. The depositions disclosed evidence of sexual penetration of the victim's vagina with the prisoner's fingers and penis and serious injuries were caused to the complainant's vagina including the tearing of the hymen. As mentioned already, a sentence of 6 years imprisonment was imposed.

14. In aggravation, it was submitted by the State that this was a serious sexual touching case as was demonstrated by; first, the fact that the complainant was of a tender age of 6 years at the time of the offence; second, there was a big age difference of 10 years between the complainant and the prisoner; third, the prisoner not only touched the complainant's vagina with his fingers, but also sexually penetrated her vagina with his fingers; fourth, the complainant experienced physical pain and trauma; fifth, there was a breach of an existing relationship of trust, authority or dependency as the prisoner was entrusted with the care of the complainant; sixth, the prisoner's expression of remorse on allocutus was not genuine in the absence of any tangible proof of him accepting responsibility for his criminal conduct such as the payment of compensation; and seventh, the offence was prevalent.

15. Mr. Tengdui of counsel for the State referred me to The State v Kiddi Sorari (2004) N2553, The State v Brady Meki (2006) N3391 and The State v Wasa David Warifa (2007) N3308.

16. In Kiddi Sorari, the prisoner aged 14 years at the time of the offence was convicted for sexually touching a female child aged 6 years on her vagina with his fingers on a plea of guilty and sentenced to 5 years imprisonment in hard labour. The prisoner rubbed his fingers on the victim's vagina and tried to push his fingers into her vagina as well. The prisoner held up the victim and her sister as they were walking to their village with a knife and took the victim into the nearby bushes where he committed the offence. There were minor grazes to her clitoris and the vaginal area in general. The court found that this was in fact an act of abduction and attempted rape.

17. In Brady Meki, the prisoner aged 18 years at the time of the offence was convicted for sexually touching a female child aged 6 years on her vagina with his right index finger on a plea of guilty and sentenced to 3 years imprisonment in hard labour. There was an attempt by the prisoner to sexually penetrate the vagina and in the process he caused some minor bruises and abrasions to the vagina resulting in bleeding.

18. In Wasa David Warifa, the prisoner aged 24 years at the time of the offence was convicted for sexually touching a female child then aged 6 years on her vagina with his penis on a plea of guilty. The prisoner attempted to sexually penetrate the victim with his penis, but did not succeed and ejaculated outside her vagina. The prisoner also caused some minor injuries and the victim bled from her vagina. The victim regarded the prisoner as an uncle. A sentence of 7 years was imposed.

19. Counsel submitted that the circumstances of the present case were similar to Wasa David Warifa and therefore urged the Court to impose a sentence between 3 and 7 years. He suggested that a sentence of 5 years imprisonment was appropriate.

20. Counsel further submitted that I should not suspend any part of the sentence in the light of the Supreme Court decision in Public Prosecutor v Don Hale (1998) SC564 given the pre-sentence report does not support a non-custodial sentence.

21. I find that the factors which mitigate the offence in the present case are: first, the prisoner pleaded guilty; second, the prisoner was a first offender; third, this was an isolated incident; fourth, there was no pre-planning; fifth, no weapon was employed to commit the offence; sixth, until committing the offence, the prisoner had a good background; seventh, the prisoner co-operated with the police during their investigations by making an early admission whereby he accepted criminal responsibility for his action and he maintained that stance culminating in his pleading guilty; eighth, the prisoner acted alone; ninth, the prisoner was a juvenile offender; tenth, there is no evidence to suggest that the prisoner or his relatives for that matter have caused further trouble to the complainant or her relatives since the incident; and eleventh, the prisoner was a victim of a broken marriage.

22. I do not accept that the prisoner's expression of remorse on his allocutus was genuine, but I will treat that as a neutral factor.

23. I find that the factors which aggravate the offence in the present case are: first, the complainant was of a tender age of 6 years at the time of the offence; second, there was a big age difference of 10 years between the complainant and the prisoner; third, the prisoner sexually penetrated the victim's vagina and anus with his fingers; fourth, the complainant suffered physical pain as is evidenced by the perforated hymen and demonstrated by sores around the vaginal area at initial discovery and trauma; fifth, the complainant did not consent; sixth, the prisoner did not give himself up after the incident; and seventh, the offence is prevalent.

24. The circumstance of aggravation under Section 229B (5) of the Code was not specifically pleaded in the indictment. Accordingly, I will reject the State's submission based on that.

25. Apart from the cases that counsel have cited which I have considered, I have also considered The State v Kagewa Tanang (2003) N2941, The State v Thomas Angup (2005) N2830, The State v Paul Nelson (2005) N2844, The State v Thomas Tukaliu (2006) N3026, The State v William Patangala (2006) N3027, The State v Alexander Junior Nara, CR 1236 of 2004, Unreported & Unnumbered Judgment of Davani, J delivered at Kimbe on 17 April 2007, The State v Timothy Bipi (2009) N3608, The State v Jack Manuel Narakavi (2009) N3737, The State v Levi Ateika (2010) N3962, and The State v Tonny Koim, CR 1245 of 2009, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 14 October 2011.

26. In Kagewa Tanang, the complainant was the daughter of the prisoner's brother. The prisoner pleaded guilty to one count of sexual touching with his penis of the complainant's vagina who was under the age of 12 years. She was then aged 10 years. The prisoner was aged 41 years, married and had 5 children. He unsuccessfully attempted penetration of the complainant's vagina a number of times with his penis. He was sentenced to 6 years imprisonment.

27. In Thomas Angup, the prisoner was convicted on entering pleas of guilty to one 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 dates. The prisoner committed these offences in breach of an existing relationship of trust as a step-father. The charges arose out of a pattern of sexual abuse over a period of 6 years. The complainant became pregnant and bore a male child before attaining the age of 16 years and her schooling was terminated prematurely. The prisoner was 34 years old at the time of conviction. In relation to the first count of sexual touching, he was sentenced to 4 years imprisonment. This was made to be served concurrently with the sentences for the other offences.

28. In Paul Nelson, the prisoner aged 65 years was convicted of the offence of sexual touching with his fingers of a female child under the age of 16 years of her vagina on a plea of guilty and sentenced to 3 years imprisonment in hard labour. The complainant was aged 12 years at the time. Two years of the sentence was suspended on terms. There was no existing relationship of trust, authority and dependency and it was an isolated incident. A starting point of 7 years was applied.

29. In Thomas Tukaliu, the prisoner pleaded guilty to 2 counts of sexual touching of a 10 year old complainant. On both occasions, the offences were aggravated by an existing relationship of trust, authority and dependency. The complainant was the daughter of the prisoner's eldest brother, thus, the prisoner's niece. He had on previous occasions sexually touched the complainant many times. He was sentenced to 5 years imprisonment. Three years of the sentence was suspended on terms.

30. In William Patangala, the prisoner was convicted on a plea of guilty to one count of sexual touching aggravated by an existing relationship of trust, authority and dependency. The prisoner's wife and the complainant's mother were sisters therefore he was an uncle to the victim. The victim was aged 14 years at the time of the offence. The prisoner fondled the complainant's breasts and sucked the nipples. The prisoner paid compensation comprising K300.00 and 60 fathoms of tabu to the complainant and her relatives after an order was made by village elders. He was sentenced to 4 years imprisonment and 3 years was suspended on terms.

31. In Alexander Junior Nara, the prisoner was convicted for sexually touching a female child aged 9 years on her private parts with his hands after a trial and sentenced to 5 years imprisonment in hard labour. He was aged 25 years when he committed the offence. The complainant did not sustain any injury. The prisoner and the complainant were first cousins.

32. In Timothy Bipi, the prisoner pleaded guilty to 2 counts of child sex offences in 2 different incidents. The prisoner was living with the complainants and their parents and he committed the offences in the family home. For the first count, he was charged with the offence of sexual touching of a female child aged 5 years on her vagina with his fingers and was sentenced to 2 years imprisonment. For the second count, the prisoner was charged with engaging in an act of sexual penetration, an offence under section 229A (1) and (2) of the Code. The victim was the first complainant's sister and aged 9 years. The prisoner was aged 15 years at the time of the offences. He was sentenced to 6 years imprisonment. The sentences were ordered to be served cumulatively.

33. In Jack Manuel Narakavi, the prisoner aged 35 years at the time of the offence was convicted for sexually touching a female child aged 14 years on her vagina and anus with his penis on a plea of guilty and sentenced to 5 years imprisonment in hard labour. There was a breach of an existing relationship of trust, authority and dependency between the prisoner and the complainant, the prisoner being an adoptive parent or guardian. The complainant had been raised by the prisoner and his wife since she was about 4 years old.

34. In Levi Ateika, the prisoner pleaded guilty to 2 counts of sexual touching with aggravating factors of 2 young girls under the age of 16 years. The complainants, DR and AS, were cousins and were both aged about 9 years at the time of the incident. The prisoner was aged 35 years at the time. He was married to the elder sister of AS's mother so he was a close relative to the complainants. After returning from school, the complainants went to DR's house preparing to cook some food. As they were preparing, the prisoner approached them. He told them to follow him to his block of land where he had a house and the complainants followed him to the house. Upon arriving there, he told AS and another 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, kissed it, sexually penetrated her vagina with his penis and then ejaculated on her vagina. After DR left, he invited AS to also go into the bedroom and repeated what he did to DR on her. The prisoner was sentenced to 5 years imprisonment in hard labour on both counts which were ordered to be served concurrently as the offences arose out of closely related facts.

35. In Tonny Koim, the prisoner was convicted on a plea of guilty to a charge of sexual touching with his hand, the vagina of a female child aged about 2 years. The prisoner was aged about 14 years when he committed the offence. Some minor injuries were inflicted to the vulva including bleeding from the vagina and the hymen was torn. I imposed a custodial sentence of 4 years imprisonment.

36. For purposes of consistency and I think it is not unreasonable to do so, I will adopt and apply the starting point of 7 years applied in Paul Nelson.

37. I consider that the number and strength of the factors in mitigation far outweigh those in aggravation.

38. The seriousness and prevalence of the offence calls for a stern sentence for purposes of personal and general deterrence.

39. The facts of the present case are closer to Brady Meki, Wasa David Warifa and Tonny Koim. I agree with the prisoner that Tala John was more serious than the present case. I also consider that Wasa David Warifa is more serious than the present case. I will therefore consider a sentence below 7 years, but between 3 and 6 years.

40. In all the circumstances, I consider that a sentence of 5 years imprisonment is appropriate. From the head sentence, I will deduct the period of 1 year and 13 days for the pre-sentence period the prisoner has already spent in custody. He will serve the balance of 3 years, 11 months and 15 days (the remaining term) at the Baisu Correctional Institution subject to any remission of any part of the sentence for good conduct whilst incarcerated or the need for relocation done pursuant to the provisions of the Correctional Service Act. Prior to reaching the age of 18 years, the prisoner shall serve his sentence at the Juvenile Section of Baisu Correctional Institution in light labour. Upon attaining the age of 18 years, he will be transferred out from the Juvenile Section to serve the remainder of the remaining term in hard labour.

41. The pre-sentence report recommends a custodial sentence. I accept the recommendation and order that the prisoner serve the remaining term in custody.

42. A warrant of commitment to execute the sentence shall issue forthwith.

Sentenced accordingly.

____________________________________________________

P. Kaluwin, Public Prosecutor: Lawyer for the State
F. Pitpit, Public Solicitor: Lawyer for the Prisoner