State v Lenga [2016] PGNC 115; N6283 (19 May 2016)

N6283

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1144 of 2015

THE STATE

V

JUNIOR LENGA

Vanimo: Geita J
2016: 18, 19 May

CRIMINAL LAW - Sentence –Guilty Plea - Sexual Assault– Offender touched the complainant’s genital area and pushed her to the ground as she bend down to make fire – Immediately apologized to the victim for the wrong committed - Close cousins - Sentenced to 30 months. Remainder of sentence suspended with Probation conditions including counseling - Criminal Code, section 349 (1) Criminal Code Act.

Cases cited:
Edmun Gima and Siune Arnold v The State (2003) SC 730
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v Don Hale (1998) SC 564
Richard Liri v The State (2007) SC 883
The State v Esiko (2009) N3607
The State v Haupas (2007) N3186
The State v Laris [2009] PGNC 104; N3724

Counsel:
Ms. Helen Roalakona, for the State
Ms. Renatta Yayabu, for the Prisoner

JUDGMENT ON SENTENCE

19^th May, 2016
1. GEITA , J: The prisoner has pleaded guilty to one count of sexual assault contrary to section 349 (1) of the Criminal Code, a charge which carries a maximum penalty of five (5) years subject, of course, to section 19 of the Criminal Code.

2. The evidence for the purpose of sentencing were those agreed by the Prosecution and Defense on the depositions for the plea of guilty. The facts may be conveniently summarized as follows:-

(a) On Wednesday 2 March 2015 at about 3pm, the victim left Warapu village by a bush track to Pou village, some distance away.
(b) Among those accompanying her were Junior Lenga and John.

(c) The prisoner and the victim arrived first at a bush hut and the complainant made a fire so that they could light their smokes. John was lagging behind.

(d) As the complainant bend down to make the fire the prisoner held her and touched her genital area and pushed her to the ground.

(e) The prisoner immediately apologized to the victim for the wrong committed.
(f) The victim got up and ran away crying.

Antecedent Report

3. The Antecedent Report was tendered and admitted, without objection. The prisoner does not have any prior convictions. The prisoner is aged 21 years and married with five children, aged between 4 years to the youngest being 10 months at the time the crime was committed. He is an unemployed villager from Warapu Village in Aitape District.

Allocutus

4. When provided with an opportunity to address the court in relation to what sentence should be imposed, the prisoner apologized profusely to the Court, the Constitution and to the victim. The prisoner pleaded for leniency and asked to be considered for Probation.

Submissions

5. On behalf of the offender, Ms. Yayabu indicated that the prisoner has been in custody since time of arrest, a period of 1 year and 2 months. The Court was reminded that the offender has no prior convictions. It was submitted that the case of The State v Esiko (2009) N3607 should be used as a guide in determining a sentence. In that case the offender was convicted after trial for touching the breast and genital and groin of the victim. He was sentenced to three years imprisonment less pre trial custody and the balance suspended with conditions. The Court raised a total of 15 questions and answered them for or against the prisoner. The highest number scored either in the affirmative or the negative influenced the sentencing outcome. Ms. Yayabu suggested the sentence imposed should be for a term of 30 months within the mid-range and not the maximum.

6. On behalf of the State, Ms. Roalakona referred to the violence against women and prevalence and suggested there was a need for deterrence. A head sentence of 3 years should be imposed. The Public Prosecutor correctly reminded Court that the maximum penalty was ordinarily reserved for worst types of cases to which I agree. (Goli Golu v The State [1979] PNGLR 653 Kearney J). The following two cases referred to Court for similar charges of sexual assault attracted starting points of 30 months to 36 months: The State v Haupas (2007) B3186 and The State v Laris [2009] PGNC 104; N3724. The Public Prosecutor cautioned against any considerations for suspended sentence in the absence of a Pre-sentence Report: Public Prosecutor v Don Hale (1998) SC 564; Edmun Gima and Siune Arnold v The State (2003) SC 730; Richard Liri v The State (2007) SC 883.

Case Law

7. For the moment I will rely on the cases referred to me and will be guided by the sentencing principles for charges of sexual assault set out therein. The decisions in the three (3) case referred to me suggests that the sentence in such a case should be within the mid-range; 30 months.

8. I will give some allowance for the fact that the prisoner pleaded guilty and has also spent a considerable time in his pre- trial custody. By pleading guilty he has saved the State money and time from running a full trial. The Courts’ attitude in general is that prisoners who plead guilty must be accorded some leniency in sentencing. The cases referred to me only provides guidance and it is necessary to consider such things as the circumstances of the offence, the circumstances of the prisoner as well as the mitigating and aggravating factors in this case.

Pre-sentence Report

9. I have had the opportunity of reading through your pre-sentence report and have taken your good points into consideration. I note also that the Probation Office has made a favorable recommendation on your suitability for probation. This now rules out the caution sounded out by the Public Prosecutor in her submissions.

Circumstances of the Offence

10. This was an attack on the victim, a niece, which was sexual in nature in a secluded bush track. The two were alone at the time with John who was still coming. The victim having bent down to make fire sexually aroused the prisoner who attacked her and immediately apologized realizing that what he did was wrong.

Mitigating Factors

11. The only mitigating factors in this case is the absence of any prior conviction and his guilty plea.

Aggravating Factors

12. The only aggravating factor in this case is the prevalence of violence against women.

13. In this case the prisoner, as I said earlier on is entitled to the leniency that is usually given when a person enters a plea of guilty. I am satisfied that the mid-point of the range for five years (5) is appropriate in this case. Had this been a trial the need for a deterrence sentence would be considered.

Remarks to the Offender on Sentence

14. You should consider yourself fortunate in that the Public Prosecutor has decided against indicting you on a much more serious charge of rape which attracts a prison sentence of up to 15 years to life imprisonment in circumstances of aggravation. Instead you have been indicted on a much lesser indictment of sexual assault. To your credit you have pleaded guilty for which some leniency will be accorded to you today.

15. In your case I will follow the guidelines set out by earlier National Courts when sentencing people such as you. Furthermore I agree with the Public Prosecutor that your case is not the worst type of sexual assault and will refrain from considering the maximum sentence of five years.

16. Might I add here in passing that with the number of children (5) you brought into the world during the short space of your young married life, it’s no surprise that you were easily aroused and tempted when you found yourself alone with the victim. From my count you were aged 17 years when you and your wife had your first child. You have a lot of work to do in trying to control your sexual emotions lest you find yourself in more serious sexual crimes in future.

17. Junior Lenga, taking into consideration what has been said by you and by your Lawyer; I sentence you to imprisonment with hard labour for 30 months. From that term will be deducted a period of 1 year and 2 months to take into account the time you have already spent in custody. That leaves a term of 16 months to be served from today.

18. I further order that the remainder of the sentence will be suspended with you placed on Probation for the same period with the following conditions. That you be of good behavior and to keep the peace and wherever possible seek counseling. The Volunteer Probation Officer in Aitape will be your Supervisor.

Sentenced accordingly,

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender