State v Handrella (No.2) [2016] PGNC 20; N6196 (17 February 2016)

N6196

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.887 OF 2014

THE STATE

-V-

APE HANDRELLA
(N0.2)

Kokopo: Lenalia, J.
2015: 7th, 8th, 9th, 10th & 22nd December.
2016: 1st, 3rd, 15th & 17th February.

CRIMINAL LAW – Sexual Touching – Sentence after finding of guilty – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.229B (1) (4).

CRIMINAL LAW – Sexual touching – Victim a minor at age 5 years old – Accused could be almost 60 years.

CRIMINAL LAW – Factors for considerations – Sentence

Cases cited.

Maima v Sma [1972] PNGLR 49
The State v Mitige Neheya [1988-89] PNGLR 174)
The State-v-Penias Mokei (No.2) (26.8.04) N2635
The State-v-Paul Nelson (2005) N2844
The State-v-Kagewa Tenant (2005) N2941
The State-v-William Patangala (2006) N3027

Counsel:

Mr. L. Rangan, for the State
Ms. J. Ainui, for the Accused

17th February, 2016

1. LENALIA, J: On 22nd December 2015, this Court found the prisoner guilty of the charge of sexual touching of a minor. The victim was at the age of 5 years at the time the prisoner committed the offence against her. This is a crime against s. 229B (1) (a) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

3. Section 229B (1) states:

"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, 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 Subsection (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 and 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".

Addresses on Sentence

4. On his last say, the prisoner said, he hoped that, this matter could have been reported to community leaders for them to settle rather than coming up all the way to the Courts.

5. Ms. Ainui in her address on sentence submitted that, her client's case involved sexual touching and the appropriate penalty should be below the prescribed maximum. Counsel referred to case law authorities for the offence of sexual touching saying the court should consider that the prisoner is old and his previous good behaviour. According to her submissions, the prisoner has a very long work history as a labourer since 1975. He began at Ulaveo plantation, ENBP, then to Kulube and Koka plantations in NIP then back to Gunanur, Cliffton and Mambur plantations ENBP. He committed the offence he is now charged with in Mambur plantation. Counsel asked the court to consider the prisoner's standing in his community and the comments by community leaders in the Pre-Sentence Report.

6. Mr. Teko who stood in for Mr. Rangan asked the court to consider the serious aggravations involved on this case. Such aggravations involved the big age gap between the victim and the prisoner. Counsel also referred to some sexual touching cases where National Court Judges have imposed deterrent sentences. Counsel submitted that the victim of this case was so small that the offender breach the trust reposed on him to take care of children in communities.

Pre-Sentence Report

7. I have considered the terms of the pre-sentence report and the means-assessment report. I consider comments by the prisoner's "wantok" Mr. Samuel Ipu. Mr. Ipu is of the view that since the prisoner had been incarcerated for 22 months, any appropriate penalty should be a good behaviour bond with conditions or a set of probation orders. That wantok said, the prisoner is a man of standing in his community and if he is sent to prison, he may die if he catches any illnesses. Mr. Ipu is not a doctor and the court cannot accept his comments on the health of the prisoner.

8. The Ward Committee Member Lenie Peter said, the offender assists in community work programs and engages in community gatherings in meetings and he assist other needy people.

9. I have also considered the concern and comments by the father of the victim John Barnabas. Relatives of the victim call for compensation of K3, 000.00. The court cannot accept such high call because, this case was sexual touching. It would appear from the comments of the father that the prisoner had previously paid compensation as an out of court settlement for the same trouble and that since then, the parents had suspected the prisoner for the same trouble for some time.

Application of Law

10. Sexual abuse of minors is so common. The case of this prisoner involved a child under the age of 12 years. The first aggravation is that, Ape you could be sentenced to the maximum of 12 years imprisonment. In this case, the victim was a minor at the age of 5 years. At that age, nobody could have expected you to indulge in sexual activities with a child of such age. You may be between 60 and 70 years.

11. This touches on the second aggravation. That is there was great age difference between you and the victim. If you did what you did to the minor to an old woman at your age or the same age as you are, would be fine if not done by force. But to sexually touch or sexually penetrate a minor like the one you abused is nonsensical because, it is against the law and secondly you made a laughing stock of yourself because you are an old man and the victim was a baby.

12. The third aggravation is that, you being an elderly person who is expected to look after not only your children if you have any, but children of other community members. In doing what you did to that minor, you breached the trust not only of the child but her parents. Older people are wiser than their younger generations.

13. The medical report and the evidence by Dr. Steinmertz Rokounal of Vunapope Hospital show that the victim's vagina was swollen but the hymen was intact. According to the doctor's evidence, her view was that, though there were no bruises on the vaginal area, it appeared to her that the victim's private part was interfered with by outside force.

14. Doctor Rokounal confirmed that, the force used by external means was consistent with the history of the report made to her by the mother and father of the victim. In the doctor's observation, the victim was so traumatized that when she (doctor) tried to open her (victim's) legs she cried and eventually when the victim submitted, the doctor observed that the victim had a swollen hymen.

15. On sentence, the court considers sentencing guidelines in sexual cases particularly, sexual touching. I consider the sentencing principles set out in The State-v-Penias Mokei (No.2) (2004) N2635. In that case, Cannings, J. set out certain considerations which should be considered as a guide to sentencing offenders on charges of sexual abuse under the Act. I have covered some of those factors in this discussion. According to that case, if the relationship of trust between the accused and the victim is very close, the more serious the betrayal of trust becomes and the higher the penalty should be. On the instant case, the breach of trust was or is not close to each other. (See also The State v Mitige Neheya [1988-89] PNGLR 174).

16. On the sentencing trends, in The State-v-Paul Nelson (2005) N2844, the offender was at the age of 65 years. He was sentenced to 3 years for a similar offence. Two years were suspended with conditions. There was no existing relationship of trust and dependency and it was an isolated incident. In the case of The State-v-Kagewa Tenant (2005) N2941, the prisoner was charged with one count of sexual touching of the victim who was under the age of 12 years. The prisoner in that case attempted penetration a number of times. He was sentenced to 6 years imprisonment with 2 years suspended on conditions.

17. In The State-v-William Patangala (2006) N3027, the prisoner pleaded guilty to one count of sexual touching aggravated by an existing relationship of trust authority and dependency. It was an isolated incident. He was sentenced to 4 years imprisonment with 3 years suspended on conditions.

18. This Court is very concerned about the level of sexual abuse cases in this Province. The people of this nation have decided through their elected leaders in the National Parliament to change the law and express their abhorrence against this sort of conduct. This means that, Papua New Guinea cannot continue to use children the way offenders are taking. Children of this nation deserve to be respected and treated with care and protection because they will be future leaders of this nation.

19. The principle of sentencing in criminal practice in sexual cases is the maximum penalty ought to be reserved for the worst cases encountered in practice: Maima v Sma [1972] PNGLR 49. The maximum penalty for sexual touching of a child under the age of 12 years is seven years imprisonment. This is subject to s.19 of the Criminal Code. Where an offence of sexual touching is committed with a child under the age of 12 years or where there was existing relationship of trust authority or dependency, the prisoner could be sentenced to 12 years.

20. As stated earlier, there was a defector element of betrayal of the trust that a victim reposed on a person such as in the circumstances of this case because the prisoner is an elderly person and the victim was a child. The intention of the parliamentarians of this country is reflected on the amendments to most of the sexual offences in the Criminal Code. Such intention was aimed at protecting children against sexual abuse and exploitation of our women and children.

21. The victim was 5 years while the prisoner was about between 60 and 70 years. I also consider the fact that, no serious injuries were caused to the victim. This court is of the view that, the penalty that is to be imposed must reflect the concern of the community as well as a reflection of the seriousness of the crime of sexual abuse committed upon young children. On that note, the prisoner is sentenced to 3 years imprisonment less the pre-trial custody period.

22. The remaining balance is fully suspended on condition that after you are released, you shall keep the peace and be of good behaviour for 24 months. Secondly, you shall pay an amount of K500.00 compensation to the victim within 7 days after your release.

23. Ward Committee Lenie Peter and the prisoner's wantok Samuel Ipu are ordered to witness the reconciliation payment and report to the Assistant Registrar's Office at Kokopo if such order has been complied with.

____________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused