State v Soli [2017] PGNC 102; N6742 (8 May 2017)

N6742

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 1195 OF 2016

STATE

V

HAROUS SOLI

Buka: Bona J.
2017: 26^th April, 3^rd, 8^th May

CRIMINAL LAW – Sexual Touching – Plea of Guilty – Touching Breasts of Victim – Offence Occurred in the Garden – Victim did not Consent– Criminal Code Section 349 (1).

Cases Cited:

SCR. No. 1 of 1984; Re Maximum Penalty [1984] PNGSC 12
State v. Haupas [2007] N3186
State v. Lenga [2016] N6283
State v. Yambe [2015] N5992
Public Prosecutor v. Don Hale (1998) SC564

Counsel:

C. Sopa, for the State
C. Momoi , for the Accused

SENTENCE

8^th May, 2017

1. BONA J. The prisoner pleaded guilty to one count of Sexual Touching under Section 349 (1) of the Criminal Code Act Chapter 262.
   
2. The brief facts of the case were that on the 16^th day of February, 2016 at Kiopan village in Buka, the victim Fiona Augustine went to the garden to collect some sweet potatoes. While digging for sweet potatoes the victim did not see the prisoner creep up behind her and suddenly grabbed her. She struggled to get herself free but he grabbed her and touched her breasts. She got herself free and ran away to another garden but he followed her and grabbed and touched her breasts again. When the prisoner noticed that there was another person in the other garden he let go of the victim and ran away.
   
3. On allocatus the prisoner said he is sorry and apologise to God and to the victim and her family. He also apologise to the Court for what he did and asks for the Court to show him some mercy and put him on Probation or a Good Behaviour Bond.
   
4. Counsel for the Prisoner submits that his personal particulars are that he is 33 year old and comes from Kiopan village in Buka. He is married and has five children. He attend school but left at grade 5 in primary school. He is unemployed and lives as a subsistence farmer in the village. He is baptised as a Catholic and attends the Catholic Church in the village.

He has been in pre-trial custody for one (1) year.

5. The offence of Sexual Touching comes under Section 349 (1) of the Criminal Code Act as follows:

349. SEXUAL ASSAULT

(1) A person who, without a person’s consent –

(a) touches, with any part of his body, the sexual parts of that

other person; or

(b)..........

Is guilty of a crime of sexual assault.

Penalty: Subject to Subsection (4), imprisonment for a term not exceeding five years.

6. It is settled law that the maximum sentence is always reserved for the worst type so that the discretion given to the Courts under Section 19 of the Criminal Code can be exercised according to the facts and circumstances of each individual case. See: SCR.No.1 of 1984; Re Maximum Penalty [1984] PNGSC 12.
   
7. Counsel for the prisoner submits that mitigating factors that the Court should take into account are that he has pleaded guilty and therefore had saved the Court time and expense. He is a first time offender and has no prior convictions. That he co-operated with the Police and has expressed genuine remorse. That he did not use any harmful or offensive weapons and that the victim did not sustain any physical injuries.
   
8. Counsel submits that this case does not fall into the worst case category and therefore does not warrant the imposition of the maximum penalty or a term of years closer to the maximum.
   
9. Counsel cited the following cases which he submits should guide the Court in reaching an appropriate sentence – State v. Haupas [2007] N3186; State v. Yambe [2015] N5992; State v. Lenga [2016] N6283. All these case are of Sexual Touching and where all the prisoners pleaded guilty. All were sentenced for periods ranging from two (2) years and six (6) months to three (3) years. In two of the cases the sentences were wholly suspended and the prisoners placed on Probation.
   
10. State counsel submits that the offence is prevalent and that it was an uncalled for assault on a fellow human being. However she concedes that the prisoner pleaded guilty and that he is a first time offender. The State concedes to any sentence the Court deems appropriate in the circumstances of the case.
    
11. This offence is a prevalent one in this Autonomous Region and in Papua New Guinea. Too many men, young and old, are committing this offence all over Bougainville.
    
12. Women and young girls are not born for men to use as playthings. They are not there to be abused and sexually assaulted wherever and whenever they want to. They are human beings like anyone else and should be treated properly like every other person.
    
13. The Court takes into account the mitigating factors as outlined above by the prisoner’s counsel and the submissions from both counsel. The Court also takes into account the cases cited by both counsel and have come to the conclusion that an appropriate sentence under the circumstances should be three (3) years imprisonment with hard labour.
    
14. Deducting the pre-trial period of one (1) year in custody, the prisoner will serve two (2) years imprisonment.
    
15. Counsel for the prisoner in his submissions submits that any period of custody imposed by the Court should be suspended because the Pre-Sentence Report is very favourable to the prisoner. In the case of Public Prosecutor v. Don Hale (1998) SC564 the Supreme Court says that a suspension of sentence may be made if there is a favourable Pre-Sentence Report which shows community support for suspension and a willingness to assist in supervising or rehabilitating the prisoner.
    
16. In this case the Report shows that the community in the village including the victim and her family and the village chiefs and elders would like the prisoner to be given a non-custodial sentence so they can reconcile in the customary way and get their lives back to normal.
    
17. In taking that into account the Court will suspend the remaining term of two (2) years imprisonment and place the prisoner on a Good Behaviour Bond for a period of two (2) years under the following conditions:-
    

(a) Must keep the peace and be of good behaviour

(b) Must reside in Kiopan village and is not allowed to move elsewhere unless he obtains leave from the Court.

(c) Must not leave the Autonomous Region of Bougainville without leave of the Court.

(d) Must refrain from taking any alcohol or other intoxicating drugs.

(e) Must attend church services and participate in church activities.

(f) Must organise and take part in a customary reconciliation ceremony with the victim’s family under the supervision of probation officers and village chiefs within three (3) months from the date of sentence.

(g) Must pay K500.00 cash as compensation to the victim.

(h) Must submit himself to Sister Essau Barnabas of the Family Counselling Group in Buka for counselling within one week from the date of sentence. Sister Essau to provide progressive reports to the Probation Service in Buka every two months.

18. Prisoner to take note that a breach of any of the above conditions will result in his arrest and incarceration for the remainder of the sentence.
    
19. Accordingly the sentence of the Court is as follows:-
    

Length of Sentence – 3 years

Pre-trial Custody deducted – 1 year

Sentence to be served – 2 years

Amount of Sentence suspended – 2 years

Time to serve in Custody – Nil – subject to compliance with conditions.

Sentenced Accordingly

___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner