State v Torie [2015] PGNC 41; N5966 (20 February 2015)

N5966

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 371 OF 2014

THE STATE

V

JOHN TORIE
Respondent

Alotau: Toliken, J.
2014: 13th November
2015: 20th February

CRIMINAL LAW - Sentence – Sexual touching – Plea – Guilty – Offender (87 years old) sexually touched 4 year old great grand-daughter's vagina with his tongue – Aggravating factors – Close relationship – Serious breach of trust – Huge age difference – Mitigating factors – Early guilty plea – Cooperation with police – Advanced age - Appropriate sentence – 4 years – Suspension - Appropriate case for – Sentence wholly suspended – Compensation – Not beneficial to victim - Inappropriate and repugnant where victim is of tender age – Criminal Code Ch. 262, s 229B (1)(a)(4)(5).

Cases Cited

Golu Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1983] PNGLR 93
The State v Thomas Manasi; CR No. 661 of 2011 (unnumbered and unreported judgement dated 9th of August 2013)
The State v Francis Molean (2012) N4697
The State v Tala John (2012) N 4630
The State v Patrick Mova (2011) N4523

Counsel

H Roalakona, for the State
C Kambua, for the State

SENTENCE
20th February, 2015

1. TOLIKEN J: John Torie, on Saturday the 19th of April 2014 you were at your daughter's house at Top Town here in Alotau. You were in your bedroom when you saw your grand- daughter DT a child under the age of 12 years. You approached her, lifted her skirt and touched her vagina with your tongue. The State alleged that when you did that, you did so for sexual purposes. The child was under 12 years of age and you were in a position of trust, authority or dependency. And therefore you committed an offence under Section 229B (1)(a)(4)(5) of the Criminal Code Ch 262.
   
2. The State formally charged you on indictment on the 13th November 2014 with one count of sexual touching and the above facts were put to you on arraignment. You pleaded guilty and I entered a provisional guilty plea. After perusing the Committal Court depositions I confirmed the plea and then convicted you. I was not able to pass sentence then so I do so now.
   

PERSONAL PARTICULARS

3. The State did not allege any prior conviction so you are a first time offender. You are 87 years old and come from Mokarah village on Pak Island in the Manus Province. You were educated up to Form 5 (Grade 11) in 1951 at Sogeri High School. You are a widower with 5 children. You have a long employment history:
   

1952-1956 You joined the Maritime and Transport Department as a crew on government trawlers. You were promoted to cadet officer and eventually became a ship captain. Towards the end of 1956 you resigned and joined the Coastal Shipping.

1956-1972 You were employed as captain with Coastal Shipping for 7 years. You resigned and joined the Manus Co-Operative Society in 1973.

1973-1987 You worked for Manus Co-Operative Society as a captain for 15 years until you retired in 1987.

SENTENCING ISSUE(S)

4. Mr. Torie, you have pleaded guilty to sexually touching your great grand daughter who was under 12 years old with whom you stood in a position of trust, authority and dependency and, as I have said you are liable to be sentenced to 12 years imprisonment. The maximum penalty, however, is always reserved for the worst offences and every case is different and therefore sentences very much depend on the circumstances of each case (Golu Golu –v- The State [1979] PNGLR 653; Avia Aihi –v- The State (No3) [1983] PNGLR 93).
5. I must therefore have to decide or determine an appropriate sentence for you. To do that I must first decide whether your offence is one that must attract the maximum penalty. If it is, then I may have to impose the maximum. If it is not a sentence below the maximum may be imposed. In all these the Court has a very wide discretion to impose any sentence below the maximum (Section 19 of the Code).

ALLOCUTUS AND SUBMISSIONS

6. When asked to address the Court on your punishment or sentence you said:

"I intend to apologise to the girl and her family, her mother and grandmother. I also apologise to the Court. I am 87 years old and I ask for leniency. I ask the Court to release me and have mercy on me. I have nothing more to say."

7. Your lawyer, Mr. Palek submitted that an appropriate sentence for you should be 2 - 5 years less the 6 months and 1 day that you had been in custody awaiting trial. And because you have a good Pre-Sentence Report and are willing to pay K3000 to the child you should be placed on probation with a fully suspended sentence. Your probation should be served in Manus, Counsel submitted.

8. Ms. Roalakona for the State submitted that there was a serious breach of trust because the child was your own great granddaughter and that there was a huge age difference between you and the child who was only 4 years old. That is an age difference of 83 years. This offence is also becoming prevalent and a deterrent sentence must be imposed to protect vulnerable children. And despite a favour PSR a sentence of 3-6 years should be imposed.

9. Your Pre-Sentence Report does speak favourably of you and shows that you are willing to pay K3000 compensation to the mother of the child. It recommends probation supervision and shows that members of your family and your church have collectively helped you to admit your offence and seek leniency from the Court. The report, however, reveals that in an affidavit that was deposed to by your daughter Gallian Torie which forms part of the material in the depositions, you have the reputation of sexually abusing young girls. That then is a blemish in your record.

THE OFFENCE

10. Section 229B of the Code provides for the offence of sexual touching in the following terms –
    

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: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.

(2) ...

(3) ...

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

(5) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

11. Parliament had to bring about changes to the Criminal Code by enacting the Criminal Code (Sexual Offences and Crimes Against Child) Act 2002 because of an increase in sexual abuse of children. Hence the introduction of the offence of sexual touching among other offences. Parliament also recognized that most of the abuse arose in family setting or in situations where offenders stood in position, of trust, authority and dependency towards their victims and therefore provided that these be visited upon by stiffer penalties as circumstances of aggravation.
    
12. The Courts are therefore duty bound to respond appropriately by giving effect to the clear intentions of Parliament. Sentences have to be appropriately high not only to punish offenders but importantly to deter them and others from indulging in this demoralizing activity towards our vulnerable children who society has a duty to protect from abusive sexual predators. And where it is warranted offenders should be kept away from their victims and even prospective victims at that.
    

PAST SENTENCES

13. I have been referred to a few cases by both counsels to assist me in arriving at an appropriate and just sentence for you. I find a few of these to be similar to your case.
    
14. The State v Francis Molean (2012) N4697. There the prisoner aged 81 sexually penetrated his granddaughter who was just under 12 years of age. He was sentenced to 10 years imprisonment which was wholly suspended. This case is however, only relevant to your case for the reason that both of you are octogenarians - over the age of 80 years.
    
15. The State v Tala John [2012] N 4630. The prisoner there pleaded guilty to one count of sexually touching his biological daughter. She was 10 years old and he was 35years old. He had left his room and entered his children's room, removed his daughter's clothes and rubbed her vagina with his fingers in breach of a relationship of trust. He didn't express any remorse but the court (David J.) held that the factors in mitigation and those in aggravation were equal so he sentenced the prisoner to 6 years.
    
16. The State v Thomas Manasi, CR No. 661 of 2011 (unnumbered and unreported judgement dated 9th of August 2013). I sentenced a 75 year old prisoner to 3 years each for two counts of sexual touching. The prisoner had called two girls aged 9 and 6 years, who were his classificatory grand-daughters to his room. He removed their clothes and touched their vaginas. The prisoner was remorseful and had reconciled with the girls, and their family. Because of his advanced age and other good factors I suspended his sentence fully with conditions.
    
17. The State –v- Patrick Mova [2011] N4523. The prisoner was indicted for one count of sexually touching the victim aged 4 years with his tongue. He initially denied the charge but then changed his plea to guilty after the State closed its case. The prisoner was an uncle of the child. Kawi J. sentenced him to 5 years imprisonment.
    

YOUR CASE

18. Turning now to your case I find the following mitigating factors in your favour.
    
    • You pleaded guilty early to the charge
    • You are a first time offender though it has been shown by affidavit evidence that you have the propensity to abuse young girls.
    • You are well over 87 years of age
    • You co-operated very early with the police
    • You are fairly well educated by colonial standards so I do not agree with your lawyer that you may be inadequately educated.
    • You are willing to pay K3000 compensation to the victim's mother
      
19. Your aggravating factors, however are –
    
    • You stand in a very close relationship of trust, authority and dependency towards your great granddaughter and you breach that trust.
      
    • There is a huge age difference between you and the child, who was only 4 years old that is a difference of 83 years.
      
    • This offence is also becoming very prevalent.
      
20. While it may seem that your mitigating factors outweigh your aggravating factors I do not see it that way. This is because of the gravity of your offence, the serious breach of trust, the huge age difference between you and the child and the need to protect vulnerable children from people like you outweighs any factor that should call for leniency within bounds of reason and principle.
    
21. The maximum penalty here is 12 years and I should think that for an offence such as yours where the both circumstances of aggravation provided under Subsections (4) and (5) of Section 229B are present then the starting point should be 4 years imprisonment. I do not think that your mitigating have any effect in setting your head sentence too much below that or at all. I think that if we are to deter people like you from sexually abusing your daughters, granddaughters or any child for that matter, your head sentence should be 4 years. This offence and other offences against children by elderly men like you are increasing and reasonably tough sentences must be imposed to stop this abhorrent and deviant practice by men who see children merely as flesh for their perverted sexual appetite and satisfaction.
    
22. I therefore sentence you to 4 years imprisonment. You would now have been in pre-trial custody for 9 months so I deduct that from your head sentence of 4 years. You will therefore serve 3 years and 3 months.
    

SUSPENSION

23. You have a good Pre-Sentence Report and you are also very advanced in age. This I should think is reason enough for me to fully suspend your sentence. I therefore wholly suspend the balance of your sentence on condition that you will enter into probation for a period of 3 years with the following conditions -
    1. You will serve your probation at your village, Mokarah on Pak Island, Manus Province.
    2. You shall as soon as you are released from CIS Giligili return to Manus and report to the Senior Probation Officer at Lorengau.
    3. As a general deterrence and protective measure you are not to remain alone with any girl under the age of 16 years.
    4. You are not to have any contact with your great granddaughter Dextelyne Tefalu or any of your granddaughters or great granddaughters under the age of 16 years in the absence of adult relatives.
    5. While at Mokarah Village you shall be supervised by Village Court Magistrate Daniel Nuphue, a Volunteer Probation Officer.
    6. The Provincial Probation Officer in Lorengau shall furnish the National Court Registry in Alotau with six monthly reports on your progress which copies of the said reports to be sent to the Public Prosecutor's office and the Public Solicitor's office in Alotau and to the Provincial Probation Officer in Alotau.
    7. In the event that you breach any condition of your probation you will be brought before the National Court to show cause why you should not be imprisoned for the full balance of your suspended sentence.
       
24. You will note that I have not imposed a condition for you to pay compensation. That is deliberate because while compensation has its benefits, for sexual offences against victims of tender age such as yours, compensation will not benefit her personally and therefore totally appropriate if not repugnant. Secondly, offenders like you should not think that such an abhorrent act and its psychological effects of child victims can be vitiated and mitigated by the payment of compensation.
    
25. Should you, however, want to reconcile with your family at large, you do not need to be told by the Court or anybody for that matter to do the right thing by your relatives.
    
26. The above is my sentence you and order accordingly.

____________________________________________________________________
Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer for Prisoner