State v Yambe [2015] PGNC 62; N5992 (16 June 2015)

N5992

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 175 OF 2015

THE STATE

V

MOSES YAMBE
Respondent

Vanimo: Geita J
2015: 5, 11, 16 June

CRIMINAL LAW – Guilty plea- Sentence – Particular offence – Sexual touching of complainant with his fingers and penis - S. 349 (1) (a) of the Criminal Code Act.
CRIMINAL LAW – Guilty plea – Prisoner aged 28 years – Victim an epileptic patient – Favourable mitigation factors - Early guilty plea rewarded as an incentive – 'Jungle justice not condoned'- Sentenced to 2 ½ years- Wholly suspended with Probation with conditions including work orders – Sentence of rehabilitation preferred - S. 349 (1) (a) of the Criminal Code Act.

Cases Cited:

The State v Mark Samuel Haupas (2007) N3186
The St v Paul Nelson 2005 N2844
The St v Thomas Tukuliu N3026

Counsel:

Mr. Emmanuel Thomas, for the State.
Mr. Baptist Fehi, for the accused.

JUDGMENT ON SENTENCE

16th June, 2015

1. GEITA J: You pleaded guilty to a charge of sexual touching of Jennet Seki, an epileptic patient at Mushu village in Vanimo on 29 July 2014 between1.00 pm and 2.00 pm on the beach near her house, thereby contravening s 349 (1) (a) of the Criminal Code Act (as amended), Sexual Offences and Crimes against Children's Act 2001. The penalty of which is imprisonment for a term not exceeding 5 years.

The facts

2. The facts as agreed by the State and Defence on the depositions for your guilty plea are these: On the afternoon of 29 July 2014 at Mushu village in Vanimo you grabbed the victim as she was going down to the beach to relieve herself. You pushed her to the ground and attempted to have sex with her by using your fingers and penis. As she resisted and struggled you prematurely ejaculated onto the victim and ran away, leaving her behind.

Allocutus

3. In your allocutus, you said sorry for what you have done saying this was your first time in court and pleaded for leniency.

Mitigating factors

4. The factors in mitigation are:

a) Guilty plea

b) No prior convictions

c) No relationship of trust

Aggravating factors

5. The aggravating factors are:

1) Victim was known to you

2) You took advantage of a sick girl.

Pre Sentence Report.

6. Your Pre-Sentence Report sets out in great detail all relevant information and it contains a recommendation that you be given a part custodial and part non custodial sentence. You are now a born again Christian and do not have the capacity to pay any form of compensation to the victim. You now work as a domestic helper to earn your living. The highest primary school level you attained was grade one but you left when your mother died in 1991. In short everything that the court needed to know about you is contained in the report including your personal and family particulars. Your suitability for Probation was recommended by the Probation Office.

7. There are aggravating factors against you which I cannot simply ignore. You took advantage of a sick person and committed that crime.

Defence submissions

8. Your Lawyer told me about your personal particulars and also made submissions on what the appropriate sentence ought to be in your case. In his submissions, your lawyer urged the Court to impose a sentence of 3 years imprisonment to be apportioned in equal parts of custodial and non custodial sentence with conditions. He submitted that in the absence of a situation of a trust relationship as is often relied upon in aggravation the crime you committed was not the worst. In support of his arguments Mr Fehi referred the court to these cases: The State v Thomas Tukuliu N3026 and The State v Paul Nelson 2005 N2844. Nelson was a 65years old man with the victim 12 years. He was sentenced to 3 years with 2 years suspended. Tukuliu, a 25 years old man with 10 year old victim. He was sentenced to 5 years with 3 years suspended. Two years to be served with conditions upon release. In his case a trust relationship existed.

State submissions

9. Counsel for the State, Mr Thomas conceded that no aggravating circumstances existed despite the victim being known to the prisoner. He rightly pointed out that maximum sentences are best reserved for worst types of cases. In support of his brief submissions he relied on the case in which a 7 months pregnant woman was assaulted by a young man against her wishes in Bialla. The man was sentenced to prison for 3 years less pre trial custody of 6 months with the remainder served in prison. (The State v Mark Samuel Haupas (2007) N3186).Mr Thomas submitted that in view of your favourable mitigation factors including your guilty plea a sentence of 2 ½ years was considered appropriate.

10. The victim's father and your uncle spoke very highly of you as a hard working young man and a good helper around the house. The victim's father expressed concern that no remorse was offered to them nor were any compensation offered to them for what you had done to their daughter. They are demanding that should you fail to pay K5000 compensation you must be sent to prison.

11. On the question of your beatings from the police and the public for this crime, or what is now commonly referred to as 'jungle justice' such actions are not condoned by the civil society including the courts. The irony of the matter however is that you brought the situation upon yourself. On the part of court this will be considered in the overall sentence of which I have accommodated.

12. Considering the facts before me including the supporting case laws I consider that the sentencing principal of rehabilitation is suitable in your case. I have said in many of my earlier decisions that accused persons entering early guilty pleas must be rewarded with some form of reduction in their sentence as an incentive to others to do likewise. The savings in costs are numerous to all parties concerned. To this end I will also include that in your overall sentence. Might I emphasise here that there are a number of important legal principles involved in sentencing. Some of these include rehabilitation, retribution, protection of the community both general and specific deterrence. In your case the sentence most appropriate would be one of your rehabilitation. I consider a head sentence of 2 ½ years imprisonment in hard labour to be appropriate which I so impose. I will deduct 8 months 1 week for your pre trial custody. The balance of 1 year 10 months will be served on Probation with conditions including community work for 200 hours. Such community work will be identified and monitored by the Community Based Officers in Vanimo.

Court Order

Sentence to	2 ½ years
Less pre trail custody	8 months 1week
Balance sentence suspended on Probation for the same period with community work orders.	1 year 10 months

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