State v Nane [2016] PGNC 74; N6317 (17 March 2016)

N6317

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 295 OF 2015

THE STATE

V

MARK NANE

Porgera: Auka, AJ

2016: 15^th & 17^th March

CRIMINAL LAW – Criminal Code – Section 229B – Sentence guilty plea – victim female aged 8 years – offender aged 49 years – single touch of penis – no force or injury – Sentence – two years imprisonment – reduced by Pre-trial custodial period and the remaining balance fully suspended on condition.

Cases cited:

Maima v. Sona [1972] PNGLR 49

State v. Ape Handrella (No. 2) N6196

State v. Paul Nelson (2005) N2844

State v.Penias Mokei (No. 2) (2004) N2635

Counsel:

J. Waine, for the State

R. Bellie, for the Offender

DECISION

17^th March, 2016
1. AUKA AJ: The prisoner Mark Nane pleaded guilty to one count of sexual touching of a female child under the age of 12 years Contrary to Section 229B (1) (a) (4) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. No relationship of trust authority or dependency was pleaded in the Indictment.

2. The facts on arraignment were that on Sunday 5^th of October, 2014 between 10:00 am, the prisoner called the victim an 8 year old girl to go over to him. When victim walked over to him, he pulled his trousers zipper down and pulled his penis out and placed it on her hand and told her to hold it with her hand which she did. Fortunately victim’s big sister saw the prisoner abusing the victim and called out. When the prisoner heard the shouting, he ran away. However the village Councillor who was nearby saw him running away gave a chase and caught him.

3. On his allocatus the prisoner said that he did not have anything to say except asked God to bless both the Court and him.

4. On mitigation Mr. Bellie submitted that the prisoner is 49 years old and come from Wanganda Village, Kopiago, Porgera District, Enga Province. Prisoner is not married. Both parents are deceased. Prisoner is youngest in family of 2 boys. Prisoner never received formal education and never employed formally.

Mr. Bellie urged the Court to consider that the prisoner acted alone, no physical injury was done to the victim, plea of guilty. Mr. Bellie submitted for a wholly suspended sentence and referred the Court to the following cases;
The State v. Ape Handrella (No. 2) N6196 (Lenalia J). A 60 years old man pleaded guilty to sexual touching the vagina of a 5 years old victim. Sentenced to 3 years, less pre-trial custody period. The remaining term fully suspended on conditions that he shall keep the peace and be of good behaviour for 24 months and secondly to pay an amount of K500.00 compensation to victim within 7days after his release. The State v. Paul Nelson (2005) N2844. The offender was aged 65 years when the victim was 7 years. The sentence imposed for pleading guilty to sexual touching was 3 years, two years was suspended with conditions.

5. The maximum sentence provided by Section 229B (1) (a) (4) is imprisonment for a term not exceeding 12 years where the child is under the age of 12 years.

6. The principle of sentencing in Criminal cases is the maximum penalty ought to be reserved for the worst type of cases.

7. It is also an established principle in sentencing that each case must be considered on its own facts and circumstance. Lawrence Simbe v. The State [1994] PNGLR 38.

8. Also there are certain considerations which should be considered as a guide to Sentencing offenders on charges of Sexual abuse under the Act. These considerations were set out by His Honour Justice Cannings in the case of the State v. Penias Mokei (No.2) (2004) N2635 and I adopt the considerations and have applied the appropriate considerations to the circumstances of the instant case.

9. There are 2 considerations from that case which I have applied in this case and they are (1) the victim is very young and two, there is a great age gap between the prisoner and the victim. And these are aggravating factors considered against the prisoner.

10. I note the mitigating factors in this case are the prisoner’s guilty plea, no injuries suffered by the victim, no prior conviction.

11. The victim is 8 years old while the prisoner was 49 years old. This is a case where the prisoner did not touch the private part of the victim rather prisoner compelled the victim to hold his penis with her hand. I also consider the fact that no injuries were caused to the victim.

12. 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.

13. On that note the prisoner is sentenced to 2 years. The time spent in custody shall be deducted and the remaining term is fully suspended on condition that after prisoner is released, he shall keep the peace and be of good behaviour for 12 months.

Sentenced accordingly,

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