State v Anis [2018] PGNC 72; N7155 (16 March 2018)

N7155

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1641 OF 2016

THE STATE

V

PETER ANIS

Kokopo: Susame, AJ

2018: 23 February, 16 March

CRIMINAL LAW – Sentence – offence of sexual touching of a female child aged 1year 1 month – s. 229B (1) & (4) of Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. – Sentencing guidelines on sexual offences against children- Offence Prevalent - Early plea – Sentencing range – S 2 Criminal (Compensation) Act 1991- Award for compensation discretionary – Maximum Allowable under the Act – 4 years sentence suspended upon probation with conditions.

Cases cited:
Golu Golu v The State [1988-89] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Paia Lifi v Phillip Dege (1981) N291
Rex Liau v The State [1990] PNGLR 487)
Stanley Sabui v The State (2007) PGSC 24; SC866.
Taiba v Maima v Sma [1971-1972] PNGLR49,
The State v Biason Benson Samson (2005) N2799
The State v Kagewa Tenant (2005) N2941)
The State v Mokei (No 2) [2004] PGNC 129; N2635
The State v Ndrakum Pu –Uh (2005) N2949

Counsel:
Miss. Batil, for the State
Miss. Ainui, for the Prisoner

DECISION ON SENTENCE

16^th March, 2018

1. SUSAME, AJ: The prisoner has pleaded guilty to a charge of sexually touching the vagina of an infant child F.M. (initials of the child’s name) who was then 1 year and 7 months old on indictment presented to court on 23^rd February 2018.
   
2. The charge against the prisoner on the indictment was; ......on 5^th day of July 2016 at Wongawonga Plantation, Kokopo, East New Britain Province (the prisoner) for sexual purpose touched the vagina of F.M with his finger, then under the age of 12 years who was 1 year and 7 months old.”
   

FACTS

3. The facts agreed by the prosecution and defence are these. The prisoner while living at Wongawonga plantation Kokopo, East New Britain Province, the prisoner saw F.M playing outside and took her into his house at about midday on 5^th July 2016. The child’s mother at that material time was putting her younger sibling to sleep inside their house. The mother went out of the house and was told by her sister in law. She walked over to the house peeped inside the house. She saw the child was sitting on the prisoner’s lap and he was touching her vagina. Seeing that the mother screamed out and questioned what the prisoner was doing to her daughter. She scolded him and same day he was arrested.
   
4. The facts were put to the prisoner on arraignment. To satisfy myself I had to read the committal file. I noted the evidence and the confessional statements in the record of interview by the prisoner. The prisoner has made confessional statements confessing to the crime. On the basis of the evidence in the file I was satisfied the prisoner was guilty of the offence and accordingly entered conviction against him.
   
5. On application by the defence counsel to file Means Assessment Report (MAR), Pre-Sentence Report and submissions on sentence case was adjourned for hearing of submissions on sentence at 9.30am on 9^th March 2018. On that date prisoner was heard at the allocutus and following that submissions were heard. Sentence was deferred and is now delivered.
   

PENALTY REGIME

6. The offence is provided in section 229B (1) & (4) of Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. It attracts a maximum penalty of a prison term not exceeding 12 years. The provision reads:

“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, with 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) For the purposes of this section, “sexual parts” including the genital are, groin, buttocks or breast of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.

(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 of 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.

(Underlining added)

SUBMISSIONS

7. Court has been ably assisted by the counsels. They have both reminded the court of principles of sentencing and provided additional information for the court to consider with reference to comparable cases that have been previously decided.

SENTENCE

8. Sentencing is an important task of the court. Sentencing is a matter of judicial discretion. Exercise of that discretion must be guided by proper principles. Late Kapi DCJ (as he then was) perhaps expressed it nicely constituting the Supreme Court Bench in Rex Lialu v The State [1990] PNGLR 487) at 489 when he stated:
   

“The exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles.”

STARTING POINT

9. It was submitted by Ms. Ainui for this particular case starting point should be 4 years. In other words, what Ms. Ainui is saying is that sentence of 4 years should be imposed for this particular case.
   
10. To me the real starting point should be consideration of the mandatory maximum penalty provided for a particular offence. From there the court draws down considering the prisoner’s pleading for a lesser sentence.
    
11. I endorse with approval what the three men bench of the Supreme Court in The State v Mokei (No 2) [2004] PGNC 129; N2635 (26 August 2004) at page 22 stated:

“... we suggest that following the establishment of the guilt of an accused, either on plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that, only then should the Court consider the factors for and against the imposition of the maximum penalty.”

12. As it has been rightly pointed out, maximum penalty should be reserved for the worst case scenario with very serious factual circumstances. That is the vital principle of sentencing settled by law. There are host of authorities on this point of law, one of which is Golu Golu v The State [1988-89] PNGLR 653 cited in the respective submissions (see also Taiba v Maima v Sma [1971-1972]PNGLR49, Paia Lifi v Phillip Dege (1981) N291 (M) only to cite a couple).

For this particular offence the mandatory maximum penalty is 12 years. That should be the starting point. However, circumstances of this case do not justify the maximum penalty to be imposed.

13. Apart from the mandatory penalty provided for this particular offence s.19 of the Criminal Code vests in this court power to impose a lesser sentence in the exercise of its discretion.

SENTENCING GUIDELINES FOR SEXUAL OFFENCES AGAINST CHILDREN

14. To assist the court by both counsels referred to the following cases:

Stanley Sabui v The State (2007) PGSC 24; SC866

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

The State v Biason Benson Samson (2005) N2799

The State v NdrakumPu –Uh (2005) N2949

15. These cases and many others not cited are relevant for discussion of factors of aggravation and mitigation when considering the offender’s culpability in sexual offences. These factors were laid down by His Honour Cannings J in State v Pennias Mokei (No.2) which His Honour reiterated in The State v Biason Benson Samson (supra). His Honour Lay J adopted the guidelines in The State v NdrakumPu –Uh (supra) which were again adopted by the Supreme Court in Stanley Sabui v The State (supra) in 2007.
    
16. These factors are:
    
    1. Is there only a small age difference between the offender and the victim?
    2. Is the victim not far under the age of 16 years?
    3. Was there consent?
    4. Was there only one offender?
    5. Did the offender not use a threatening weapon and not use aggravated physical violence?
    6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?
    7. Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?
    8. Was it an isolated incident?
    9. Did the offender give himself up after the incident?
    10. Did the offender cooperate with the police in their investigations?
    11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?
    12. Has the offender not caused further trouble to the victim or the victim’s family since the incident?
    13. Has the offender pleaded guilty?
    14. Has the offender genuinely expressed remorse?
    15. Is this his first offence?
    16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
    17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
        
17. The guidelines are applicable in both early plea cases and cases after trail. I also adopt them in this case. These factors can be summarized under two heads, factors in aggravation and factors in mitigation.
    

FACTORS OF AGGRAVATION

1. There is a huge age difference between the prisoner and the child. The exact age of the prisoner is not known. He is an elderly man between the ages of 60 to 65 years from my estimation of his physical appearance. The child at the time she was sexually touched was 1 year 7 months old, way below the age of the age of 16 years and age of consent. There is huge age difference of about 58 to 63.
2. Prisoner is not a youthful offender.
3. Prisoner is a close friend of the child’s parents. There is some degree of dependency and trust from that friendly relationship which has been breached.
4. The offence is on the rise and is prevalent

FACTORS OF MITIGATION

1. Prisoner is a first time offender with no prior convictions
2. He has pleaded guilty to the charge.
3. It was an isolated incident with no history of repetition of similar sexual acts prior to or after the only incident he has been convicted for.
4. He has lived a trouble free life in the community.
5. The prisoner acted alone, no threats, no force was used, no weapons was used.
6. Prisoner caused no physical injuries to the child, nor did he sexually transmit any known disease to the child.
7. Prisoner has at allocutus said he is sorry and asked court for leniency.
8. Prisoner cooperated well with the police.

PRE SENTENCE REPORT & MEANS ASSESSMENT REPORT

18. The pre-sentence report is a well balanced one. The report captured views expressed by the child’s parents and the grandfather towards the prisoner. They have expressed prisoner should pay some form of compensation between the ranges of K1000.00 to K3000.00 with a pig. They want the prisoner to be released from prison and placed on probation to allow him to pay compensation. They have also asked for an order for him to vacate the area.
    
19. The author of the report was of the view prisoner was uncooperative in providing much more information. The prisoner however, continuously repeated he never sexually penetrated the child with his penis except merely touching her.
    
20. The means assessment report stated the prisoner does not have personal savings and will rely on his wantoks from Henganofi community residing at Wongawonga plantation to offer assistance for payment of compensation if ordered. But adequate time to be given. This point was reiterated by the prisoner’s counsel when she asked for a 4 year sentence but to be wholly suspended with conditions.
    

COMPENSATION

21. I adopt what I said in The State v Kevin Ambai (2018) N7154:

“Court’s power to order compensation is derived from section 2 of the Criminal (Compensation) Act 1991 which reads;

“COMPENSATION AS PUNISHMENT.

(1) Notwithstanding that payment of compensation is not specified as a punishment for an offence, a court may, in addition to any other punishments imposed, order an offender to pay compensation in accordance with this Act.

(2) When a court is considering the punishment or punishments to be imposed for an offence, it shall also consider whether in the circumstances of the case, compensation should be ordered.”

Maximum Compensation allowable under the Act is K5, 000.00. [s.5 (3)]

Whether or not order for compensation is to be made is matter of discretion of the court depending on the circumstances of the case.”

COMPARABLE JUDGMENTS

22. I have not made reference to other cases apart from the ones counsels have cited in their respective submissions. I have taken note of the sentences that were imposed by the courts. In early plea cases depending on their factual circumstances in sexually touching cases. Sentences ranged from sentence of six years, imposed by His Honour Kirriwom J in the case The State v Kagewa Tenant (2005) N2941 ) to 3 years, as in the case of The State v Paul Nelson (2005) N2844. In some of the cases portion of the sentence was suspended with conditions, or the entire sentence was suspended with conditions or the entire sentence not suspended.
    
23. Each case however must be decided on its own merits or factual circumstances. This point has repeatedly been said in the courts. One case on this proposition is Lawrence Simbe v The State [1994] PNGLR 38 cited by Miss Batil

Facts in this case are distinguishable to the decided cases.

COURT’S VIEW ON SENTENCE

24. Having discussed all of the above court is entitled to express its opinion in imposing a sentence on the prisoner. There is now a greater concern by advocates against sexual abuse and violence against children in PNG because of the increasing trend in such offence in recent times. Courts have and continue to reiterate this concern in passing judgments on offenders who commit such crimes against children.
    
25. There is changing trend in sexual behavior and is on the rise in the world including PNG largely influenced by excess to phonography materials through internet. Males both young and old pick on the weak and vulnerable to release their uncontrolled sexual desire and gratification. It was because of these recent developments in this sort of criminal behavior Parliament made amendments to the Criminal Code and introduced series of offences including the one under consideration in the Criminal Code (Sexual Offences and Crimes Against Children Act 2002), in tandem with PNGs obligations to the United Nation’s Conventions on the Right of the Child which parliament had ratified.
    
26. Children need our love, care, guidance and protection from all forms of sexual abuse whether it be sexual penetration or sexual touching.
    
27. I have observed the prisoner’s demeanor. Senior Probation Officer had stated in his report the prisoner stated he only touched the child and never sexually penetrated her. And that there was no medical report. He continuously repeated the sentiments but expressed no remorse which he later did at allocutus and asked the court for leniency. I perceive that perhaps prisoner was thinking that it was not a serious case, it was just mere touching and should not be sent to jail. If that was his was thinking, then he is wrong. Sexually touching a child’s genitals is just as serious as sexually penetrating her. It is all about protection of children from all forms of sexual abuse. It was for that reason law was passed in 2002 to curb such criminal behavior with hefty penalties.
    
28. That said, this is the sentence I shall pass on the prisoner:
    
29. He is sentenced to 4 years imprisonment with a discount of 7 months for time spent in custody since 12 July 2017.
    
30. The question is, should the prisoner be incarcerated and serve his prison term at Kerevat jail? I consider that factors in mitigations are favorable to the prisoner and outweigh the aggravating factors. In the exercise of court’s discretion by the power vested in this court by s 19 of the Criminal Code and the Probation Act I order that the balance of sentence is wholly suspended and prisoner serve his suspended sentence in the community upon probation under close supervision of the Community Based Correction, in Kokopo for a duration of 3 years. In addition to the mandatory conditions the following additional conditions are ordered.
    
    1. Prisoner shall pay compensation of K1000.00 in cash plus a pig of a value of K600.00
    2. The sum of K1000.00 is to be deposited in the child’s trust account to be opened up by child’s parents with any of the commercial banks.
    3. To effect order No.1 prisoner shall conduct a reconciliation ceremony within 2 months to be witnessed by the Senior CBC officer, Ward member of the community and a Church Pastor.
    4. Prisoner is restrained from entering complainant’s residential area and keep away from complainant’s children.
    5. Prisoner shall be under close monitoring and supervision of the Senior CBC Officer in Kokopo while he is on probation.
    6. Prisoner shall not leave Kokopo while under supervision of Senior CBC Officer in Kokopo except by order of the court on application.

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