State v Iume [2019] PGNC 177; N7886 (20 June 2019)

N7886

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 551 of 2017

THE STATE
-v-
AUTHOR IUME
Defendant

Kokopo: Kangwia, J.
2019: 6, 12 & 20 June

CRIMINAL LAW – Sentence – Plea Of Not Guilty On Charges Of Sexual Touching – victim has mental disability – prisoner convicted after trial – prisoner sentenced to four years – s229B(1)(a) Criminal Code (Sexual Offences Against Children) Act

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
State v Alfred Jack Takin (2015) CR 101 of 2011 – (Unreported judgment dated 20 August 2014)
State v Kagewa Tenang (2006) N2941
State v Munguna Tovue (2015) CR 1111 of 2014 (Unreported Judgment dated 5 September 2015)
The State v Thomas Angup (2005) N2830
State v Peter Tulemani (2008) N3685
State v Peter Yaspuat – CR 481 of 2016 (Unreported Judgement dated 20 May 2016).

Counsel:

G. Tugah, for the State
N. Katosingkalara, for the Prisoner

20^th June, 2019

1. KANGWIA, J.: This is a decision on sentence. The prisoner was convicted after a trial on the alternate charge of sexual touching under s229B (1) (a) of the Criminal Code (Sexual Offences Against children) Act. The alleged facts covered both charges. The charge of sexual penetration was dismissed after a no-case to answer was upheld. Since the defence took no issue with the elements of the alternative charge during the no-case submission the Court convicted him on the alternative charge of sexual touching.
   
2. The brief facts in the alternate charge of sexual touching are that the accused and the Complainant are neighbours. The accused asked the Complainant to go and get betel nut from him. When the Complainant went to the accused he grabbed her by the hand and pulled her to the nearby bush near her home. He touched the Complainant’s breasts, lifted her skirt and touched her vagina.
   
3. The mother returned from the neighbor’s house and realized that the Complainant was not at the house. She called out for her and the Complainant ran out to her.
   
4. Upon the mother’s queries the Complainant referred to the accused as Ovin’s husband who sexually touched her. The matter was reported to police who charged him.
   
5. The prisoner is 28 years old and married with 2 kids. He follows the Catholic church. He is 3^rd of three siblings. He is educated to Grade 8 and has no formal employment. His parents are still alive. He has no prior conviction.
   
6. On his allocatus the prisoner said:
   

“I apologize for the trouble. I ask for Courts mercy. I ask for the matter to be settled in the village. It is also the Complainants relatives view. We are still living together and want to maintain continuity. My parent’s welfare is also my concern”

7. On his behalf Mr. Katosingkalara submitted that the prisoner was a neighbour to the victim. The victim was 14 years old at the time of the offence. The offence prescribed a maximum imprisonment term of 7 years. He referred to the following factors in mitigation as outweighing those in aggravation:
   
   • - He was a first-time offender
   • - No violence or weapons were used or injury sustained
   • - No sexually transmitted disease was acquired
   • - Expressed genuine remorse
   • - Committed the offence as a juvenile
     
8. Under those circumstances the offence did not attract the maximum prescribed penalty.
   
9. It was submitted that a sentence of three years as starting point with deduction and suspension be imposed. It was also submitted that in view of the victim’s relative’s willingness to settle, it be considered in sentencing. The Court was referred to a number of cases whose sentences ranged between 5 years and 12 years. Those cases were for sexual penetration cases hence not considered in the present case.
   
10. For the State Mr. Jugah while conceding the facts referred to by the defence submitted that a custodial sentence was appropriate as the offence was committed against a child with a disability. The offence was prevalent, the victim was lured by betel nut to obey. Force was applied when the victim was pulled into the bushes. The Court was referred to a number of sexual penetration cases which were considered as not relevant in sentencing for sexual touching offences and disregarded.
    
11. The Complainant is a person with a disability. She was diagnosed with mental infirmity from six months after birth. She cannot communicate like normal people.
    
12. The offence under s. 229B (5) (CCA) carries a maximum prescribed penalty of 12 years. Where there was no breach of a trust relationship the prescribed maximum penalty is 7 years pursuant to ss (1) of the same provision.
13. The Law is settled that the maximum prescribed penalty is reserved for the worst type of the offence charged. (See Goli Golu v The State [1979] PNGLR 653).
14. The present case is not one of those that would attract the maximum prescribed penalty even though it was a serious case of sexual touching on a disabled female.
15. The prisoner who was 26 years old pulled the victim who had a mental disability into nearby bushes and touched her breasts, lifted her skirt and touched her vagina. He further removed his trousers, pushed her to the ground and slept on top of her.
16. It displayed the prisoner as a person with a mind devoid of common sense and moral attributes. It seems lust was splashed all over him at the time he committed the offence. He abused the trust the victim had on him as an uncle. He also betrayed the parents and relatives of the victim of the trust they had of him as a long -time associate.
17. On the issue of compensation and settlement it is the opinion of the Court that the court should not intervene. The offence surfaced from among their community and village setting. It is not one of those types of offences where vengeance or aggression would arise. It should be left to relatives and local authority in their villages or locations where they live to negotiate and settle at their discretion and convenience. The prisoner and the victim are not strangers to each other. There is already a willingness by the Complainant’s relatives for reconciliation.
    
18. The probation report shows that if the prisoner was allowed into probation then strict conditions be set. However based on the decision on compensation and settlement the Court is of the opinion that a probation order should not be issued.
    
19. For sentencing I agree with the Counsel for the State that the offence is prevalent and it calls for deterrence to be factored in the sentence to be imposed.
    
20. The sentences of Courts these days for sexual touching range between suspended sentences to high imprisonment periods. (See State v Munguna Tovue (2015) CR 1111 of 2014 (Unreported Judgment dated5 September 2015- sentenced to 5 years); State v Alfred Jack Takin (2015) CR 101 of 2011 – (Unreported judgment dated 20 August 2014 - sentenced to 3 years suspended sentence); State v Kagewa Tenang (2006) N2941- sentenced to 6 years; State v Peter Tulemani (2008) N3685 - sentenced to 7 years; The State v Thomas Angup (2005) N2830- sentenced to 5 years).
    
21. I consider it appropriate that the sentence in the unreported case of The State v Peter Yaspuat – CR 481 of 2016 dated 20 May 2016 as similar to the present case.
    
22. In that case the prisoner who sexually touched the breasts and vagina of a 4-year-old female after luring the victim with sweets was sentenced to 4 years imprisonment with deductions for time in custody.
    
23. In the present case a sentence similar to the above cases is appropriate.
    
24. The offence is also considered serious because the victim was a mentally disabled person and deterrence must also be factored. The conviction was entered after a trial from which the principle charge of sexual penetration was dismissed. It is further considered that there was a big age difference of 12 years. The only mitigating factor was that the prisoner had no record of any prior conviction.
    
25. Given all those considerations the prisoner is sentenced to four (4) years imprisonment.
    
26. Any time the prisoner spent in custody before being released on bail shall be deducted. The balance shall be served at CS Kerevat. His bail shall be refunded.

________________________________________________________________
Public Prosecutor: Lawyer for the Accused
Public Solicitor: Lawyer for the Defence