State v Manasi [2013] PGNC 378; N9034 (9 August 2013)

N9034

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 661 OF 2011

THE STATE

-V-

THOMAS MANASI

Alotau: Toliken, AJ
2013: 21^st May, 9^th August

CRIMINAL LAW – Sentence – Sexual touching of girls under age of 12 years – Two counts – Prisoner calls girls (classificatory grand-daughters aged 9 and 6 years) into his house, undresses them and touch their vaginas - Plea of guilty – Prisoner 75 years old – Remorseful – Reconciled with victims and relatives – Compensation paid – No physical injuries - Prevalent offence – Existence of relationship of trust – Breach thereof – Not the worst instance of sexual touching – Need for deterrent and punitive sentence tempered by prisoner’s advanced age - Sentence of 3 years for each count – Sentences to run concurrently – Sentence fully suspended with conditions – Criminal Code Act Ch. 262, s 229B (1)(2).

Cases Cited

The State v Ateika (2010) N3962
The State v Thomas Tukaliu (2006) N3026
The State v Ruben Giroro (2009) N3812
The State v Steven Archie (2009) N3727

Counsel

R Auka, for the State
P Palek, for the prisoner

JUDGMENT ON SENTENCE

9^th August, 2013

1. TOLIKEN, AJ: On the 21^st May 2013, Mr Thomas Manasi, you pleaded guilty before me for 2 counts of sexually touching two girls who at that time were under the age of 12 years thereby contravening Section 229B(1)(4) of the Criminal Code Act, Chapter 262.
   

THE CHARGES

2. You are charged as follows:
   

FIRST COUNT: THOMAS MANASI of GABUGABUNA Village, ALOTAU, Milne Bay Province is charged that on the 7^th day of March 2011 at Alotau, Papua New Guinea, sexually touched Theresa Timo’s vagina, a child under the age of 12 years with his fingers.

SECOND COUNT: THOMAS MANASI of GABUGABUNA Village, ALOTAU, Milne Bay Province, is charged that he on 7^th day of March 2011 at Alotau in Papua New Guinea, sexually touched Mildred Warren’s vagina, a child under the age of 12 years with his fingers.

THE FACTS

3. The brief facts which you also admitted are that on the day in question between 3.00p.m – 4.00p.m, your grand-daughters, Theresa Timo and Mildred Warren were playing outside your house at Gabugabuna Village while you were inside the house.
   
4. You called the girls into the house to see you. When they walked in you offered them betel nut. You then told them to remove their clothes, but they refused so you undressed them yourself and they stood naked before you.
   
5. You then proceeded to touch their vaginas with your fingers. After satisfying yourself, you let them go.
   
6. The girls were both under the age of 12 years – Theresa was 9 years old and Mildred 6 years old, and you were related to them as a grand- father.
   
7. I read the committal file and was satisfied that there was admissible evidence including your Record of Interview to support the charges, hence, I convicted you on both counts.
   

THE ISSUES

8. The issues for me to determine are (1) what would be an appropriate sentence and (2) given your advanced age (75 years) should the sentence or any part of it should be suspended?
   

ANTECEDENTS

9. You are a 75-year-old widower of Gabugabuna Village, with 5 adult children. You have a primary level education and are a member of the Catholic Church. You once worked as a carpenter with the Catholic Church. And you have been a Church worker for many years and have been committed and loyal to your duties. Your lawyer tendered a Character Reference from your Parish Priest, Fr. John Dogget which speaks well of you.
   

ADDRESSES

10. You addressed the Court and apologised for your action. You told the Court that you have reconciled with your grand-daughters and their families. You said you paid them monetary compensation as well and promised to your grand daughters that you won’t repeat what you did to them again.
    
11. Mr. Arua, your lawyer submitted that while your offence carries a maximum sentence of 12 years, it is not the worst kind of its type.
    
12. He enumerated several mitigating factors and also cited several cases which he said should assist the Court in arriving at an appropriate sentence for you.
    
13. Counsel also tendered an affidavit by one John Wilfred deposed and filed on 10/05/13 attesting to a reconciliation ceremony between you and the victims’ lines on the 13^th of April 2013. Counsel urged the Court to take this into account because as he said you have taken responsibility for your action and in the process have suffered much embarrassment.
    
14. Counsel conceded though that the offence is prevalent in the province and is very serious. Your case should, however, be distinguished from the cases he had cited because some of these cases involved sexual penetration while yours did not. And some of those offenders were ordered to serve a prison of their sentence while the balances were suspended.
    
15. Counsel then asked the Court to impose a sentence of between 3 – 5 years and in the exercise of its discretion partly or wholly suspend the sentence. He said finally that any custodial sentence would be detrimental to your health due to your advanced age.
    
16. Mr Auka for the State conceded that yours is not the worst instance of sexual touching which should attract the maximum penalty of 12 years. However, he urged the Court to consider the factual circumstances of your case which should be viewed against your advanced age. He said yours is an exceptional case that may warrant a suspension.
    

THE OFFENCE

17. The offence of sexual touching is provided by Section 229B of the Code as follows:
    

229B. Sexual Touching

(1) A person who, for sexual purposes –

(a) Touches with any part of his or her body the sexual parts of a child under the age of 16 years; or

(b) Compels a child under the age of 16 years to touch, with any part of his or her body the sexual parts of the accused person’s own body,

is guilty of a crime.

Penalty: Subjects to Sub-sections (4) and (5), imprisonment for a term not exceeding 7 years.

(2) ...

(3) ...

(4) If the child is under the age of 12 years, an offender under Sub-section (1) is guilty of a crime and is liable to imprisonment for a term not exceeding 12 years.

(5) ...

18. This offence as are all other offences under PART IV DIV.2 of the Code came about by way of the Criminal Code (Sexual Offence and Crimes Against Children) Act 2002 (No.27 of 2002). This was Parliament’s response to an increasingly alarming rate of sexual abuse of some of the most vulnerable and defenceless members of our society – our children. It was also Parliament’s response to its international obligation to the United Nations Convention on the Right of the Child (CRC) which Papua New Guinea is a signatory to.
    
19. The stiff penalties provided by these provisions – some attracting life sentences (such as sexual penetration of a child under 12 years under Section 229A (2)) - reflect society’s view of this most horrific form abuse against our children.
    
20. Persons in positions of authority, trust and dependency are placed under an onerous duty to protect children under their care or custody and stand to suffer stiffer penalties if they breach that trust. Those who stand in such positions are defined by Section 6A of the Code and include parents, stepparents, adoptive parent, guardians, grand-parents, uncles, aunts, siblings or first cousins among many others. So, how have this Court treated offenders for this offence?
    

SENTENCE TREND

21. Let me briefly consider a few cases in point.
    
22. The State v Ateika (2010) N3962. There, the prisoner pleaded guilty to sexual touching of two 9-year-old girls whom he had lured into his bedroom. He got them to undress and then rubbed oil on their bodies including their vaginas and then rubbed his penis against their vaginas until he ejaculated. The girls were related to the prisoner. He was 39 years old and fairly educated. There was an existing relationship of trust. He was sentenced to 5 years for each count which were ordered to be served concurrently.
    
23. The State v Thomas Tukaliu (2006) N3026. There, the prisoner pleaded guilty to 2 counts of sexual touching of a 10-year-old girl. The prisoner was sentenced to 5 years of which 3 years were suspended on condition.
    
24. The State v Ruben Giroro (2009) N3812. The prisoner pleaded guilty to one count of sexual penetration of a 10-year-old girl and one count of sexual touching. He was in his 30s. He was sentenced to 7 years which was wholly suspended with conditions.
    
25. The State v Steven Archie (2009) N3727. The prisoner, an 18-year-old man pleaded guilty to sexually touching the 13-year-old victim. He was sentenced to 3 years, 2 of which were suspended with conditions.
    

YOUR CASE

26. To arrive at an appropriate sentence for you, let me first consider your mitigating factors:
    
    • You pleaded guilty to both counts
    • You are a first-time offender
    • You are remorseful of your unbecoming act towards your grand daughters
    • You reconciled with and paid compensation to your victims and their parents and other relatives
    • The victims did not suffer any physical injuries though we cannot say for sure that they didn’t suffer emotionally or psychologically
    • You did not expose your own private parts to your victims, thus saving them from any moral corruption
    • This was an isolated incident
    • You are advanced in years – 70 years old
      
27. But against you, I find the following aggravating factors. The offence is becoming very prevalent and there is an existing relationship of trust, authority and dependency between you and your victims. I am not sure if they are your biological granddaughters or merely classificatory grand daughters. Whatever the case, it is obvious that there is a close family relationship if the angry reaction from the victims’ parents is anything to go by.
    
28. I agree with both counsels that yours is not the worst instance of sexual touching which would call for the maximum penalty – 12 years. Nonetheless, what you did was against the law and against your custom. You are a senior member of the community and your clan. You are a church worker too so obviously you had quite a reputation in the village.
    
29. The two girls were your bubus whom you ought to have protected and love in a pure way as is expected of you. You, however, breached the trust reposed in you by statute law and by customary law. There is no doubt this episode brought you more pain and embarrassment than the fleeting pleasure you had when you abused the girls.
    
30. You no longer walk with your head high. Your grey hair, seen as an honour by your relatives and community members, no longer commands the respect that it once had. And of course, you may be the subject of ridicule by the community for all we know. You brought shame and embarrassment not only on yourself, but also on your adult children and other relatives. Your reconciling with the victims and their parents will have restored a bit of lost pride, but more importantly, restored your relationship with the victims and their parents and other relatives.
    
31. The circumstances of your case bear same resemblance or similarities with the case of The State v Ateika (supra) except that the prisoner there was 39 years old while his victims were both 9 years old. In your case one of the girls was a mere six (6) year old.
    
32. All things considered I feel that an appropriate sentence for you should be 3 years for each count. I am moved to impose these sentences because your mitigating factors and particularly your age significantly reduce the gravity of your offending. To impose a higher sentence than that would effectively be sentencing you to life imprisonment given your age.
    
33. Therefore, for count 1, I impose a sentence of 3 years. And I further impose a sentence of 3 years for Count 2.
    
34. Because the offences were committed at the same time and part of a singular event despite two different victims, I order that these sentences be served concurrently. You will therefore serve an effective term of 3 years. But should the sentence or any part of it be suspended?
    
35. Again, I think that the peculiar circumstances of your case warrants, not a partial suspension, but a wholly suspended sentence with conditions.
    
36. Hence, I wholly suspend your sentence on the condition that you enter into your own recognizance to be of good behaviour for a period of 3 years with a special condition that you shall keep the peace especially towards your victims – Theresa Timo and Mildred Warren.
    
37. I also order that your bail be refunded to you. I further order that the cash surety of K100.00 paid by your approved guarantor – Fr. John Dogget be refunded to him.
    

Sentenced and ordered accordingly.
______________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner