State v Pirika [2018] PGNC 526; N7654 (22 November 2018)

N7654

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1305 OF 2018

THE STATE

V

EUGENE JUNIOR PIRIKA

Kerema: Koeget J
2018: 15^th Nov, 22^nd November

CRIMINAL LAW- Indictable offence – Sexual Touching of girl under the age of 12 years – section 229 B(1), (4) of the Criminal Code Act (as amended) – guilty plea – sentence on his own admissions – Exercise of Discretionary powers of Court under Section 19 of the Criminal Code Act.

22^nd November, 2018

1. KOEGET, J: INTRODUCTION: The accused is charged with Sexual Touching of a female child under the age of 12 years. The charge is brought pursuant to section 229B (1) and (4) of the Criminal Code Act (as amended).

FACT

2. On an unknown date between September and December 2016, the victim, Joan Laufa was at the accused’s sister’s house in Kerema town watching movies with the accused and his younger sister. The accused sat next to the victim and he pushed his hands into the victim’s pants and trousers and touched her vagina while his younger sister was busy watching movies.
3. The victim did not tell anyone until sometime later an aunt saw a blood stain on her skirt and questioned her. She revealed that the accused touched her vagina with his fingers.
   
4. The medical report on the victim shows that she was not a virgin at the age of ten years.

ARRAIGNMENT

5. The accused pleaded guilty to the charge and such was confirmed by his own admissions in the record of interview so he was convicted accordingly.

ISSUE

6. The issue for the court to determine is, what is the appropriate sentence to impose upon the prisoner.
   

LAW

“Section 229B. Sexual Touching”

(1) a person who, for sexual purposes –

• (a) touches, with any part of his body, the sexual parts of a child under the age of 16 years is guilty of a crime.
  

Penalty: subject to subsections (4) and (5), imprisonment for a term not exceeding seven years.

(4) If the child is under the age of 12 year, an offender under subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years”.

ALLOCATUS

7. The accused stated:
   

“I say sorry to the court for what I did. I say sorry to the victim and family and the community we live. I want to pay compensation of cash of K4,000.00 and K5,000.00 with garden food”.

PERSONAL PARTICULARS

8. The prisoner is 24 years of age and is a bachelor. His parents are deceased, so he resides with his sisters in Kerema town. He is a first time offender. He completed grade 12 at Don Bosco Arai Miri Technical College in 2015 and return to reside with his sisters in Kerema town.

AGGRAVATING FACTORS

9. Although the prisoner was charged with one count of Sexual Touching of the victim, the victim’s statement contain evidence of sexual touching of her vagina on more than four other instances. The victim’s evidence contains one instance of the prisoner inserting his penis into her vagina and so there was evidence of sexual penetration of the victim’s vagina by the accused with his penis. The medical report on the victim revealed that the victim is not a virgin at the age of 10 years.
   
10. The prisoner abused trust placed upon him by the victim’s parents when he committed the offence.

MITIGATING FACTORS

11. The prisoner pleaded guilty to the charge and saved time of the court. He is a first time offender and is remorseful. He has been in custody awaiting disposal of the case for 4 months, 1 week and 3 days.

SENTENCE

12. The prisoner is charged with one count of Sexual Touching although the victim’s statement reveal that the prisoner touched her vagina on more than four separate occasions.
    
13. The victim states that the prisoner usually pushes his hand into her pants and pushes his finger into her vagina. So there was poking of the victim’s vagina with fingers as oppose to simply touching the vagina.
    
14. She states on one instance when she was forced to undress, her clothes were removed and the prisoner inserted his penis into her vagina. Such is confirmed by sighting of blood stain on her skirt. The medical report states that the victim is not a virgin even at the age of ten years.
    
15. Nevertheless, the State inducted the prisoner with one count of Sexual Touching so sentence is only for that count.
    
16. The prisoner is sentenced to be imprisoned for 7 years in hard labour. The pre-trial custodial period of 4 months, 1 week and 3 days are deducted. He is to serve the balance of 6 years, 7 months, 2 weeks and 4 days at Bomana Corrective Institute Services.
    

__________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused