State v Andy [2012] PGNC 227; N4779 (31 August 2012)

N4779

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 210 OF 2011

THE STATE

V

JACK ANDY

Waigani: Maliku AJ
2012: 13th, 20th, 22nd, 27th, 28th, 31st August

CRIMINAL LAW- Sexual Touching – Section 229B (1) (a) (5) of Criminal Code (Sexual Offences and Crimes against Children) Act

CRIMINAL LAW - Sentence - Not guilty plea- Finding of guilty after a trial - Accused is first offender – Prevalence of such crime in the community- Appropriate sentence for first offender- Sentence in any given case is to be decided on its own peculiar facts

Cases cited:

Rex Laliu -v- The State [1990] PNGLR 487
Goli Golu -v- The State [1979] PNGLR 653
Avia Aihi-v-The State (NO3) [1982] PNGLR 92 at page 96
The State-v-Penias Mokei (No 2) [2004] N2635
The State –v- Thomas Tukaliu [2006] PGNC 42; N3026
The State-v- Warifa [2008] N3308
The State –v- Tulemanil [2008] N3685
The State-v- Henry David (2001) CR 163 of 2010

Counsel:

Mr Kuvi, for the State
Mr Kirriwom, for the Accused

SENTENCE

31 August, 2012

1. MALIKU AJ: Jack Andy was convicted after a trial of one count of sexual touching of one Michelle Muru on the 29th of May 2010 at Erima, National Capital District, Port Moresby, Papua New Guinea. This offence is contrary to Section 229B (1) (a) (5) of Criminal Code (Sexual Offences and Crimes against Children) Act.

Facts

2. The victim Michelle Muru and the prisoner are cousins. The victim was born on the 07th of October in 1994. She was 15 years of age when she was sexually touched by the prisoner Jack Andy.

3. On the 29th of May in 2010, the prisoner was in the company of the victim Michelle Muru, the victim's sister, her sister's husband, and her uncle. They were returning in a vehicle home from a party which they attended at Vabukori village.

4. It was during the return trip from Vabukori village the prisoner used his hand and fingers to touch the breasts, thigh and vaginal area of the victim Michelle Muru.

5. The victim Michelle Muru alerted this to her sister at Erima who removed the prisoner from the vehicle at Erima.

The Issues

1. Does this matter fall in the worst category of cases?
2. What is the appropriate sentence?
   

Allocutus

6. The prisoner said in his allocutus:

• I want to apologize to the Court and ask for leniency from the Court.
  
• I have a young family of my wife, and three children aged between 3 and 6 years.
  
• My wife is not working and she and the children are dependent on me for living and for my children's education.
  
• I have two sisters whom I also support in their education. One is in Grade 9 while the other is in Grade 7.
  
• My parents are aging and are also dependant on me too.
  
• I am asking the Court for mercy and leniency. I am very sorry for what I did.
  

The mitigating factors

7. During submission on sentence the State acknowledged the following mitigating factors in the prisoner's favour.

➢ The prisoner has never had any prior convictions.

➢ No physical injuries were sustained by the victim Michelle Muru.

➢ There was no force used, threats, or weapons used by the prisoner.

8. Beside the above, Mr Kirriwom for the prisoner submitted the following to be in the prisoner's favour.

❖ A member of the Lutheran Church

❖ The prisoner is 33 years of age

❖ The prisoner is married to one Cecelia and they have three children aged between two to six years. The eldest daughter is attending Boreboa Primary School doing Elementary Prep.

❖ The prisoner is self employed and is the Managing Director of Wavy Sound Multimedia Production (WSMP).

Antecedent /Personal Background

• The prisoner is 33 years of age
  
• Married with three children
  
• Member of Lutheran Church
  
• Self employed and is Managing Director of Wavy Sound Multimedia Production (WSMP).
  

Aggravating factors

9. Mr Kirriwom acknowledges the following to be against the prisoner.

✓ The matter proceeded as a trial, thus forcing the victim to come to Court and testify in front of strangers. Nevertheless he submitted the victim Michelle Muru was duty bound by law to testify to prove her allegation against the prisoner as such this factor should not be heavily weighed against the prisoner.

✓ There was an existing relationship of trust, authority and dependency between the prisoner and the victim Michelle Muru. They were second cousin.

10. Mr Kuvi for the State submitted the following aggravating factors.

✓ The victim Michelle Muru was at the time of the commission of the offence 15 years of age.

✓ The age difference of the prisoner and the victim

✓ No genuine remorse offered by the prisoner.

✓ The prisoner's offending has had significant impact on the victim Michelle Muru and her mother.

✓ The victim Michelle Muru is vision impaired (blind).

Guideline on sentencing

11. The guideline on sentencing is well settled in our jurisdiction in the case of Rex Lialu - v - The State [1990] PNGLR and is: "Sentence in any given case will depend on its own peculiar facts.... the Court ought to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty". I am bound to follow this principle.

12. I agree with both counsel that maximum prescribed penalties are reserved for the worst type or worst category of cases. This was settled in the case of Goli Golu-v- The State [1979] PNGLR at page 653 and re stated in the case of Avia Aihi-v-The State (NO3) [1982] PNGLR 92 at page 96.

13. I now turn to the issues that are before the Court.

Issue One:

Does this matter fall in the worst category of sexual touching?

14. The question of whether this matter falls in the worst type of sexual touching case in my view is firstly determined by the legislation that creates the provision of the offence the accused is charged with, the prescribed maximum penalty, as well as the aggravating and mitigating factors put by counsel to the Courts which includes the age of the victim at the time the offence was committed, the age of the accused at the time the offence was committed, the age difference of the accused and the victim, breach of an existing relationship between the accused and the victim and the injuries(if any) sustained whether permanent or not. These all go to establish whether the offence the prisoner is charge with falls in the worst category of case or not.

Submission on sentence by the State

15. Mr Kuvi for the State submits that this offence is not the first of its kind. In fact in recent years the number of offences of such nature has been and has become prevalent and therefore a custodial sentence is appropriate.

16. It is that increase of such offences that led to the recent legislation of the Criminal Code (Sexual Offences and Crimes against Children) Act enacted to ensure the protection of the rights of Children.

17. Mr Kuvi relied on the case of The State –v- Thomas Tukaliu [2006] N3026 in which the following view was supportive of the children:

"Children are not born out of holes in the trees or from stone holes or caves so that they can be treated the way perpetrators of sexual abuse treat them. They are born from human beings and rightly deserve to be treated with care and all human courtesy due to them just like adult human beings. They have all the basic right to the protection of the law enshrined in the Constitution."

18. Mr Kuvi submits that in view of this, sentence to be imposed on this matter should reflect the need to deter potential offenders from committing such acts against children.

19. Mr Kuvi submits that in determining the sentence to be imposed on the prisoner, the Court should adopt the sentence imposed in the case of The State-v- Alois Dick [2007] N3220. This is a case where the accused pleaded guilty to one count of sexual touching. There was a relationship of trust, authority and dependency between the prisoner and the victim being that the prisoner was the father.

20. The relationship between the prisoner and the victim in present case is not as close as the relationship of the prisoner and the victim in the case of Alois Dick (supra). In the present case the prisoner was 33 years of age while the victim was 15 years of age, the difference being 18 years at the time the offence was committed. It is in my view quite a substantial age difference.

21. The other case that the State relied on is that of The State-v- Warifa [2008] N3308. This is a case where the prisoner had been living with the victim's parents. He sexually touched the victim by rubbing his penis on the victim's vagina.

22. The prisoner pleaded guilty to the charge and was sentenced to seven (7) years imprisonment. His honour Kandakasi J took into account the age difference, saying the prisoner being older and mature and having placed in a position of trust, authority and dependency is an aggravating factor to be considered in sentencing.

23. No doubt that in that case and the present case the prisoner being older and mature and placed in position of trust, authority and dependency toward the victims is indeed an aggravating factor to be considered in sentence in the present case.

24. Mr Kuvi submits that even though the sexual parts touched by the prisoner are different, the aggravating factor of age difference exists and also the fact that the prisoner and the victim in both cases had lived under the same roof clearly established a position of trust, authority and dependence which the prisoners have breached or violated.

25. The third and final case cited by Mr Kuvi is the case of The State –v- Tulemanil [2008] N3685. This is another guilty plea where the prisoner was charged with two counts of sexual touching on the same victim and another count on a different child victim.

26. Mr Kuvi submits that this case also addressed the issue of age difference as aggravating factor and the relationship between the prisoner and his victims. The prisoner in that case touched each victim's breasts and vagina with his hands/fingers and compelled them each to touch his penis.

27. Mr Kuvi submits that these offences were serious because each victim was under twelve (12) years of age, and there existed a relationship of trust, authority and dependency. The prisoner was sentenced to seven (7) years imprisonment on each count.

28. Although there was a relationship of trust, authority and dependency between the prisoner and the victims in that case as existed in the present case, they however differ in the age difference of the prisoner and the victims at the time the prisoner committed the offence.

29. In the present case the victim was 15 years of age and not under the age of twelve (12) years thus made the previous case serious and furthermore the prisoner had sexually touched two victims, where as in the present case the prisoner sexually touched one victim only thus makes it not as serious as in the previous case.

30. To summarize Mr Kuvi's submission on the case authorities which he cited as to its similarity or to its nearest similarity is to put it in the following:

In reference to the above mentioned cases, to the present case, the prisoner was a cousin to the victim. There had been touching of breasts and vagina like in the present case. The Courts having deliberated on all those matters have held that age difference and the breach of trust, authority and dependency by the prisoners in all those cases are aggravating factors.

That living together in the same home and committing such offences was a breach of trust, authority and dependency. In applying these to the present case, the Court should note that the prisoner had for a period of three years resided with his victim and her family under the same roof, thus creating a relationship of trust, authority and dependency to the victim and by enlarge extended to the victim's family.

The trend of sentencing in the previous case (s) is relevant and is similar to the circumstances of the present case; see The State-v- Warifa (supra). The Court should bear in mind that in all the previous cases cited to this Court, the prisoners pleaded guilty. In the present case the prisoner pleaded not guilty but was found guilty and convicted after a trial.

The previous cases did not address the issue of handicapped however in the present case the victim was vision impair (blind). This is an aggravating factor because the prisoner had taken advantage of the fact that the victim was disabled in her sight even though no threats and force were applied to the victim.

31. Mr Kuvi therefore submits in the present case, the starting point would be six (6) years imprisonment, then taking into account the overwhelming aggravating factors especially there was a relationship of trust, authority and dependency, age difference of 18 years, and that the victim was vision impaired, the prisoner should be sentenced to a range of six (6) to eight (8) years imprisonment.

Submission by Defence on Sentence

32. Mr Kirriwom submits that in considering the appropriate sentence to be imposed on the prisoner this Court should consider the aggravating and the mitigating factors together in order to assess which of the two outweighs the other? I have already alluded to the aggravating and mitigating factors put before this Court. Mr Kirriwom acknowledges that each case is to be decided on its own peculiar circumstances.

33. Mr Kirriwom refers to the case of The State-v- Tukaliu (2006) PGNC 42; N3026. This is a case where the prisoner was convicted of two counts of sexual touching under Section 229B (1) (a) (5) of the Criminal Code (Sexual Offences and Crimes against Children) Act. The circumstance or manner of the 'sexual touching' in that case is quite different from this present case.

34. In the Tukaliu Case the prisoner pleaded guilty to two counts of sexual touching. The factual circumstance in that case was somewhat akin to attempted sexual penetration and was more or less a case of persistent sexual abuse of a minor, a child not only under the age of 16 years but aged 10 years at the time of the commission of the offence.

35. The victim was sentenced to five (5) years imprisonment in hard labour and three (3) years was suspended on condition that the prisoner entered into his own recognizance to be of good behaviour after two years.

36. Given the factual circumstance of that case, that is, it was more of an attempted sexual penetration and of persistent sexual abuse it does not fall into the similarity of the present case and there a sentence imposed by the Court was called for.

37. Mr Kirriwom again referred the Court to another case of The State-v- Tulemanil (2008) N3685 in which the prisoner was convicted of two counts of sexual touching of two separate victims who were under the age twelve (12) years and were first cousins to the prisoner.

38. The prisoner had subjected the two victims to perform acts of sexual indignities of sexual touching. On one instance the prisoner forced the victim to hold his penis and masturbate him until he ejaculated his seminal fluid.

39. The prisoner was sentenced to seven (7) years imprisonment for each count, of which two of the sentences were made cumulative; hence the prisoner was sentenced to fourteen (14) years of imprisonment.

40. The sentence imposed on the prisoner in my view was called for and fitting to the offences. The prisoner had committed more than one count of sexual touching against two separate victims and separate relationship to each victim and separate age difference to each victim.

41. In the present case the prisoner was convicted of one count of sexual touching of one victim and there existed one relationship of one trust, one authority and one of dependency between the prisoner and the victim, hence they were second cousin. This would not make the present case similar to the case of The State-v- Tulemanil (supra) but be less serious.

42. Mr Kirriwom further referred the Court to the case of The State-v- Alois Dick (2007) N3220. The prisoner pleaded guilty and was convicted of one count of sexual touching. The fact in that case was that the prisoner touched his daughter's breasts and vagina and subjected her to various sexual indignities by licking the victim's vagina.

43. In that case the Court formed a view that the prisoner had subjected the victim to this treatment on more than one occasion. The prisoner was sentenced to five (5) years imprisonment without suspending any part of the sentence.

44. Obviously that matter was considered by the Court to be quite serious given the fact that the prisoner was the father of the victim. Nevertheless a sentence of five (5) years of imprisonment in my view was quite lenient given that the prisoner was the victim's father and the existing relationship was a very close and there existed trust, authority and dependency between the two of them particularly by the victim to her father the prisoner.

45. The last case which Mr Kirriwom has referred the Court to is The State-v- Henry David (2001) CR 163 of 2010. This is a case where the prisoner pleaded guilty to one count of sexual touching of a victim aged nine (9) years of age.

46. The prisoner had lured the victim into his house with a promise that the victim would be given an apple. The prisoner took the victim to the shower room, removed her clothes as well as his and forced the victim to hold his erected penis.

47. The prisoner was sentenced to two (2) years imprisonment which was suspended in whole on conditions that the prisoner is to be of good behaviour for a period of three (3) years. The prisoner was to pay K1000.00 to the victim within three months.

48. This matter in my view was quite serious given the manner the prisoner had lured the victim with a false promise in order to achieve his intention to sexually abuse the victim. Nevertheless the Court considered the sentence in that case on its own peculiar circumstances and so imposed the sentence it considered appropriate on the prisoner.

49. Mr Kirriwon submits that it is trite law that the maximum prescribed penalty for any offence be reserved for the worst type of cases. He submits that the present case is not such that falls under the description of the worst case and thus does not warrant the maximum prescribed penalty nor does it warrant a sentence closer to the maximum.

50. He submits that the cases referred to above with the exception of The State –v- Henry David (supra) are all examples of cases where the prisoner pleaded guilty. We beg to draw the Court's attention to the fact that the circumstances in those cases particularly the circumstances of aggravation far outweigh the aggravating factor in this present.

51. Whilst a plea of guilty would render the prisoner the benefit of a reduced sentence, the ultimate discretion in sentencing lies with the Court regardless of whether a matter is a plea or a trial.

52. Section 19 of the Criminal Code does not discriminate between prisoners who were convicted after a trial or pleaded guilty. It is essential and is up to the Court's discretion in sentencing by prescribing other alternatives to custodial sentences.

53. The victim in the present case was 15 years of age at the time of the commission of the offence and we accept that she is a cousin to the prisoner; hence there was a breach of trust, authority and dependency. However, apart from being touched on her breasts, thigh and vaginal areas, she was never subjected to any other sexual indignities as in the cases the State and we have referred to above.

54. There is no evidence that she suffered from any injuries, although we accept that such an experience may have psychological consequences on her but there is at this stage no injuries sustained by the victim.

55. We beg the Court not to be guided by the principle of deterrence punishment but also form of rehabilitation punishment. Furthermore, we submit the Court considers a punishment that would encourage reconciliation, between the prisoner, the victim and the families and relatives of both parties.

56. We submit that the appropriate sentence for the prisoner would be between two (2) to three (3) years imprisonment and even so that the Court exercises its' discretion under Section 19 of the Criminal Code to wholly suspend the sentence and to consider compensation under the Criminal Law (Compensation) Act so as to order the prisoner to pay compensation to the victim.

57. Sexual touching offences were specifically enacted to protect the group of persons under section 299A of the Criminal Code (Sexual Offences and Crimes against Children) Act of 2002 together with the prescribed maximum penalties. These persons are children under 12 years of age to under16 years of age.

58. In the present case the prescribed maximum penalty is imprisonment of twelve (12) years which in my view reflects this matter could be a worst type of case given the fact that there was existed a close relationship of trust, authority and dependency between the prisoner and the victim, breached by the prisoner when he committed the offence.

59. Nevertheless there are mitigating factors put before this Court that the prisoner clings on for leniency from the Court and to be considered by the Court in order to arrive on a sentence appropriate for the prisoner.

60. Sexual touching offences are committed with or without violence and are prevalent in the community and are on the rise. Many children have become victims of sexual touching and this includes the victim of this matter. The fear of being sexually touched again is one that this victim will live which she expressed in her Victim Impact Statement tendered to the Court.

61. In the present case the prisoner was not a stranger to the victim but well known to the victim and undoubtedly there was indeed an existing relationship between prisoner and the victim of being cousin. The accused did not appreciate such a relationship but instead chose to sexually touch the victim on her sexual parts.

62. I agree with his honour Canning J in the recent case of State-v-Penias Mokei (No 2) N2635 where he says: "If relationship between the accused and the victim is very close then the most serious breach of trust, authority and dependency it becomes and the higher the penalty should be." The relationship between the prisoner and the victim in the present case is not so close as in the case of Alois Dick (supra).

Address to the accused

63. You pleaded not guilty to the charge of sexual touching of one Michelle Muru contrary to Section 229B(1)(a) (5) of the Criminal Code (Sexual Offences and Crimes against Children) Act.

64. I found you guilty and convicted you of sexual touching of Michelle Muru on the 29th of May in 2010 at Erima, Port Moresby.

65. I then heard what you had to tell me in your allocutus.

66. I also heard what your lawyer told the Court to take into account when it considers the appropriate sentences for the charge against you which was your mitigating factors and your personal background including your antecedent report. I also heard what the State lawyer said is the appropriate sentence for the charges against you after the submission of the aggravating factors.

67. You committed a serious offence which calls for 12 years imprisonment. What makes this case serious is the fact that there was an existing relationship between you and the victim in that you and the victim are cousins.

68. You both lived together under one roof, eat together even to the day you committed the offence. You were not a stranger to the victim but very much known to the victim and even to the parents of the victim and the immediate members of the family.

69. You abused that relationship which had in it trust, that is the victim regarded you as some she relied on especially with her condition as vision impaired (blind). The victim will never trust you anymore. This is gone and perhaps will never be restored again.

70. The State Counsel had asked this Court to sentence between six years and eight years (6-8 years) imprisonment with hard labour while your Counsel is pleading for an imprisonment between two and three (2-3) years in hard labour because he says there is no evidence that the victim had suffered physical injuries as a result of being sexually touched by you although it may have caused psychological consequences, and the Court should consider a sentence that would rehabilitate you, make you a good person, a punishment that would encourage reconciliation between you, the victim, the victim's parents and relatives as well as your family and your relatives.

71. I have considered the sentence appropriate for you to be four (4) years imprisonment with hard labour for which you are sentenced to. I suspend two (2) years of that four (4) years on condition that you shall keep the peace and be on good behaviour for two years after you have served your sentence. You shall serve two (2) years less the pre trial custodial period that you spent in custody.

72. I also order that you pay compensation to the victim under the Criminal Law (Compensation) Act in the sum of K1000.00 within three (3) months from this date

73. Your Bail of K400.00 shall be refunded forthwith.

________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused