State v Bobby [2022] PGNC 273; N9744 (29 June 2022)

N9744

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 37 OF 2021

THE STATE

V

NAMAGO BOBBY

Goroka: Miviri J
2022: 11^th May, 29^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Sexual touching Section 229B (1) (a) CCA– Plea – 5-year-Old Girl – Prisoner 15 years old Juvenile – breach of trust Relatives – Use of Fingers – Inflamed Clitoris & labia – Hymen Intact – Saving Victim In Court – First Offender – Prevalent Offence – Deterrent Punitive Sentence – Application of Juvenile Justice Act 2014 – PSR MAR – Materials Warranting Diversion – Constitution Section 55 Equality & Freedom – Protection Young Children & Victims – Balancing Act – Discretionary – Non Custodial sentence.

Facts

Prisoner took his cousin the victim home from her elementary school straight into his room removed her trouser and underwear and under pretext of removing her excretion touched her vagina for sexual purpose. The mother was suspicious took her to the hospital and confirmed. Prisoner was arrested pursuant to the complaint.

Held

Plea
First time offender 15 years old.
Victim a cousin aged 5 years old
Protection of Very Young Victims
Serious abuse of trust
Application of Juvenile Justice Act
Materials to Warrant
PSR MAR
Strong Deterrent sentence.

Cases Cited:

Ake, Public Prosecutor v [1978] PNGLR 469
Yalibakut v State [2006] PGSC 27; SC890
Kalabus v The State [1988-89] PNGLR 193
Public Prosecutor v Hale [1998] PGSC 26; SC564
Nimagi v State [2004] PGSC 31; SC741(1^st April 2004).
Aihi v The State (No 3) [1982] PNGLR 92
Kumbamong v State [2008] PGSC 51; SC1017
State v Haite [2003] PGNC 108; N2383
State v Osake [2003] PGNC 121; N2380
State v Sion [2013] PGNC 289; N5249
State v Laris [2009] PGNC 104; N3724
State v Yame [2010] PGNC 161; N4131

Counsel:

J, Noma, for the State
G, Apa, for the Defendant

SENTENCE

29^th June, 2022

1. MIVIRI J: This is the sentence upon the prisoner who pleaded guilty that he on the 16^th March 2021 at Highway Bata Village, Bena, Goroka Eastern Highlands took the victim his cousin sister aged 5 years old into his room, where he under the pretext of removing her excretion touched her vagina for sexual purposes.
   
2. The allegation on arraignment were that on the 16^th day of March 2021 at their village of Highway Bata, Bena, accused finished school at Korefegu Primary School. He picked up the victim one Ruditha Feddy from her elementary school and took her home. He took her into his room and removed her trousers and underwear. This was on the pretext of removing her excretion where he touched her vagina. And he did so for sexual purposes to gain pleasure from it. And at the same time the mother of the victim came looking for her. She was suspicious of the Accused’s conduct and took her to the hospital, where she was checked medically and confirmed the allegations. She then reported the matter to Police ending with the charges laid against him pursuant to section 229B (1) (a) of sexual touching under the Criminal Code Act.
   
3. That section is in the following terms;- (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.”

4. The prisoner is by the admissions that he made to the charge liable to be imprisoned to a minimum term of 7 years imprisonment. But if as here she is 5 years old, under 12 years old, he is liable to be imprisoned for a term not exceeding 12 years. Included as here there is an existing relationship of trust authority and dependency between prisoner and victim, he is liable to imprisonment not exceeding 12 years imprisonment. The facts pleaded to show clearly, she was 5 years old. And she trusted him and depended upon him to take her home to the house. He abused that trust and committed the offence. She was his cousin and they both lived in the same house looked after by her parents. It was as if he was cutting the hand that fed him when he committed the offence. It was a very serious offence given.
   
5. Sexual Touching of the victim is an invasion of her privacy. And given her immaturity it was a serious offence. Because her development and intellect was such that She did not know about the act and its seriousness upon her. That advantage upon the Prisoner used for his pleasure must be the subject of protection of the young and fragile from predators such as the prisoner here who took advantage of that fact. His innocence and immature age compared does not bar that he be accorded treatment by the Application of the Juvenile Justice Act 2014 favourable and ignoring the victim. The application of this Act is subject to the Constitutional provisions according the right to Equality. The victim must be accorded equal rights privileges obligations and duties just as the prisoner. It is a balancing act to determine the appropriate proportionate sentence due the prisoner. His age determining him as a Juvenile is not a freefall to a non-custodial lenient sentence. Both here and the victim are equal in the eyes of the law. One is not superior or has more rights obligations than the other. The violation of her privacy by the prisoner does not exonerate the sentence due his actions in law. The will of the Legislature under section 229B (1)(a) sexual touching of the Criminal Code Act is not subject without reservations to the Juvenile Justice Act. It is a delicate balancing act which are by the facts and evidence before the Court to arrive at.
   
6. Relevant in this regard are the provisions section Part III diversion of the Juvenile Justice Act 2014, Part VII Sentencing Juvenile Offenders. But like all applications of law the facts and circumstances will warrant without which all men are the same in the eyes of the law. The application is therefore not automatic and self-executing but discretionary warranted by the material relied on before the court, for instance as here the PSR and MAR of the prisoner. The dependence on section 75 and 76 of that Act, Purpose and principles of sentencing come justified by the facts and the evidence. She is no less a human being than he. Both must be protected for who they are in law. Section 55 of the Constitution is relevant here and demarcates that the Juvenile Justice Act 2014 is not without limits in its application. All persons are equal in the eyes of the law. No person will be discriminated segregated on the basis as here of age.
   
7. It is a very serious aggravation where she is a 5 year old child venerable and needing immediate protection from abuse and serious harm as depicted here from an immediate relative. He is a 15-year-old boy exploring the pleasures of life upon the weak and venerable the young and innocent, unsuspecting relative as here. She must be protected from harm and abuse by the sentence here. He must be served the proportionate sentence due him given for his wrongs committed upon her. He saved the Court time in the examination, conduct of a trial involving the victim witness who was only 5-year-old, and his own cousin from coming into an open court and giving evidence of that fact. It would have been very tormenting for her given her immaturity. And further given that fact it would have been a very daunting task to elicit the evidence. Further he saved an embarrassing ordeal for the mother who had discovered the matter between the two children. All these factors were in his favour in the determination of an appropriate sentence. The Supreme Court has considered as relevant matters in the consideration of penalty include, the guilty plea, and personal antecedents of the prisoner, Ake, Public Prosecutor v [1978] PGSC 3; [1978] PNGLR 469 (1 December 1978). He should be given concession for that fact appropriately and be sentenced to on the basis of the facts that he pleaded guilty to, Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006). That is applicable here in the case of the prisoner.
   
8. It is aggravating to consider that both prisoner and victim were resident in the same house and were cousins. It was a very serious breach of trust. Family members must live together in harmony. There is therefore trust that is there as is the case here. The mother of the child believed she would come to no harm being in the presence of the prisoner her cousin brother. Here he was depended for his survival where he was housed with the victim. He was relied on as was the case on this occasion that he would take her safely securely to the house. But he took advantage of her tender age and perpetrated the offence upon her. She obviously trusted him and did not know what the prisoner did to her. He was 15 years old, whilst she was 5 years old. The age gap was 10 years old. It is the reality that a 5-year-old child has no defences from the sexual advances here by a juvenile, or any other older human. As witnessed in the case of Kalabus v The State [1988] PGSC 17; [1988-89] PNGLR 193 (27 October 1988), a nine (9) year old girl succumbed to the sadist sexual attack by the appellant.
   
9. It is the reality that violent crimes are now forever sourced authored by individuals who the law has seen to camouflage, meek as youth, timid and helpless, wolf in sheepskin, 18-year-olds, but the gruesome books of crime written by their hands have devastated families, communities, Province, and the State. Here is no exception to that fact. A serious harm has come because of the selfish conduct of the prisoner. And the prevalence of violent crimes at the hands of Juveniles youthful offenders is seen also by the Supreme Court time and again. “We first of all find that the trial judge erred in considering the appropriate tariff to start with in considering the appropriate sentence. Gimble’s case suggests starting with 7 years but the trial judge started even lower than that. We find that with the prevalence of violent crime involving the use of guns the ranges of sentences recommended in Gimble’ case are having no effect and are no longer relevant. Gimble’s case was decided in 1989 and crimes of violence have definitely increased with the use of guns being more prevalent and the community is calling for heavier punishments as a deterrence. We feel that the starting point to an appropriate sentence involving the robbery of homeowners at night with the use of firearms to threaten victims should be 10 years” Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). That in my view falls applicable on all fours to the present facts and circumstances. Because this is a crime of violence perpetrated by the prisoner a juvenile.
   
10. That classification forgets the realities of life and is in the abstract of some textbook rhetoric, or fantasy given the seriousness of the facts here. It defeats hands down the theme of being an innocent tender juvenile. This is not a game but the reality that the Courts are faced with day in day out, Age does not necessarily mitigate as seen in Nimagi v State [2004] PGSC 31; SC741(1^st April 2004). Violent criminal offences are committed by those who are young and youthful. The sentence there was 50 years imprisonment for murder committed in the course of an armed robbery. The appeal was dismissed sentence was confirmed with the Supreme Court remarking he should have been charged with wilful murder and the penalty of life imprisonment sought. The public prosecutor should have cross appealed. Therefore, the sentence was proportionate given.
    
11. The authoritative views of the Supreme Court fortify this when it stated:
    

“We are of the view that the principles expressed by the Courts in those cases demonstrate the position the Courts have taken on youthful offenders convicted of serious violent crimes including murder and wilful murder. We observe that in most killings, prisoners who appeal against sentence are normally accorded leniency and greater latitude by the Supreme Court, which seems to lend credence to and fuel the appellants’ misconception that the lives they have taken mean nothing to them whereas, their own lives are more important. We believe it is time that the Supreme Court came out from this kind of mentality and treat young criminals with the stern punishment they deserve. That is what the community expects from the Courts. It is our view that enough is enough, and if we do not punish murderers with what they deserve, we may be indirectly contributing to the escalating violent crimes which have transcended new heights ignoring social and moral values as observed by Kirriwom, J in his judgment and we quite agree with that statement.”

12. So, its application is not a freefall in favour of the prisoner here because he is a juvenile. The aggravating features show that it was fortunate that there was no other major injuries as a result of what he did to her. The medical examination report dated the 22^nd March 2021 from Doctor Sanoh Tahon Emergency Registrar of the Eastern Highlands Provincial Health Authority, Accident & Emergency Department, recounted that, “On examination She was fully conscious but noted to have development delay. She sustained no physical injuries but vulva examination reveals inflamed clitoris and labia minora, hymen is still intact. Therefore, from the examination and history taken, this patient was sexually abuse by a teenage male.” It is a very serious balance between a 15-year-old prisoner and a 5-year-old victim. One is no less a human than the other. Both are protected by the same Constitution whatever is due as the sentence proportionate takes account that there is proper regard for the rights of both. Here is an offence committed against a very young and tender victim. The Juvenile Justice Act under section 75 says the sentence shall be imposed in accordance with that Act. And then it goes on to say that the Court can disregard a requirement under any other Act or law that an amount of money or term of imprisonment shall be the minimum penalty for the offence. The effect of this interpretation is that whatever penalty is prescribed by the Criminal Code section 229B (1) (a) of sexual touching under the criminal code Act can be disregarded when a juvenile is considered for sentence. Both are Acts of Parliament and are not above the Constitution as supreme Law. The Constitution will set out which supersedes which doesn’t.
    
13. Prisoner is not looking at the maximum sentence because his case is not worst case of its kind. He is looking at a determinate term proportionate with the facts of his case, Aihi v The State (No 3) [1982] PGSC 9; [1982] PNGLR 92 (5 March 1982). His own facts and circumstances will draw out what is the proportionate sentence due him, Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). Which will be the end result of the balance between the aggravating balanced out with the mitigating and any extenuating circumstances. He was 15 years old from the admissions in the record of interview. There was no other evidence to specifically set out the date of birth. He was by the admissions in the record of interview doing grade 7 at the Korofegu Primary School. And viewed in court he appeared consistent to be resembling a child in that age group. And so, for all intent and purposes a juvenile within the ambit of the Juvenile Justice Act. And of particular relevance in this regard is section 20 of that Act which is applied here. Including Part 111 of that Act relating to Diversion. I take account that the Prisoners has taken responsibility for his actions the guilty plea that he has entered. He has taken whatever decision the court makes in the matter to heart and will abide. That is evident from his allocutus “I am sorry to the Court. And to the small girl and to her family. I promise that I will not do it. I am in school at Korofegu . Have mercy and put me on Probation.”
    
14. The presentence report does not detail as to what activities apart from School will be part of his life. There is no report either by a local church elder from his area. It is important for his development that moral principles in life are schooled into him. And here it would be appropriately from a local church elder. In submission it was submitted that he was of the SDA Christian faith. But there is no material obtained from the church and the activities it can run to help develop the prisoner. So, any order in this regard would have to be made generally. Its fulfillment will have to be monitored from the report due if the prisoner is placed on probation by the officer assigned. His emotional as well as his physical development are important given the offence that he has committed. This is not detailed out very well by the Presentence report and the Means Assessment Report. Particularly considering he must continue to develop in his life. And must be by the sentence educated as well as reformed to live life meaningfully and step away from what he has done. In this regard it is important to see the capabilities of the Juvenile to make good the wrong he has made with the help support of Mr Bobby Banume his guardian resident at Korefegu village. Diversion must serve justice to all for or against in the offence. There is no report from his school. His intellectual capabilities are important to determining an appropriate sentence.
    
15. State v Haite [2003] PGNC 108; N2383 (22 May 2003) prisoner was serving 2 separate sentences for rape and committed this one upon a 11-year-old girl the court imposed 20 years IHL. Where the offender is a repeat offender, the sentence will be high. Here the offender is a first offender, but the offence is upon an immediate relative a serious breach of trust and aggravated by her age. She is 5 years old. It is sexual touching not rape. In State v Osake [2003] PGNC 121; N2380 (22 May 2003) 18 years imprisonment was imposed for a rape of a 11-year-old girl related to the wife of the prisoner and that they were accommodated in the same house and were in make shift house whilst their house was rebuilt. Prisoner came to where she was sleeping in the course of the night and penetrated his penis into her vagina and had sexual intercourse with her. She awoke as a result and suffered serious injuries with bleeding to her vagina. These are the extreme and of the complete offence and an element of which is the present offence against the prisoner. This is touching that is enveloped in the crime of rape.
    
16. In sexual touching committed by a husband on his wife whom he suspected of having an adulterous relationship he inserted his fingers and a torch into her vagina the court imposed 12 months IHL suspended on payment of K 500 as compensation State v Sion [2013] PGNC 289; N5249 (20 May 2013). The facts there are not as serious as the present. In State v Laris [2009] PGNC 104; N3724 (18 August 2009) he was convicted after his guilty plea of section 349 (1) (b) sexual assault he took the hand of the victim and placed it on his penis. Both were adults so 3 years IHL was suspended on probation with strict conditions. In State v Yame [2010] PGNC 161; N4131 (13 August 2010) prisoner pleaded guilty to touching the breasts and vagina of the victim not a child as here. He was a 22 year married man her cousin. The court sentenced him to 1-year IHL suspended on condition of payment of compensation. These are cases that involve adult offenders here is a prisoner who is 15 years old. He has pleaded guilty and accepted responsibility for his actions. It is a matter that arises between immediate relatives and must be punished and deterred but the prisoner as a Juvenile and a youthful offender be given a chance to amend for the better. In the aggregate the proportionate sentence due given is 3 years IHL. I so impose that upon the prisoner for the crime of sexual touching pursuant to section 229B (1) (a) of the Criminal Code committed upon the victim Ruditha Feddy then 5 years old. But that sentence will be wholly suspended on a probation order for the same period.
    
17. 3 years IHL all suspended on a 3years probation order on the following conditions:
    
    • (i) You shall enter into a probation order for 3 years on the usual terms under the Probation Act.
      
    • (ii) You shall be resident and remain at Korefegu village Bena District Eastern Highlands Province and shall not move residency from there without leave of the National Court during the term of your probation.
      
    • (iii) You shall within 48 hours after release on Probation report to the Probation Officer.
      
    • (iv) You shall perform 600 hours of community work at a worksite to be approved by the Probation Office.
      
    • (v) You shall keep the peace and be of good behaviour at times.
    • (vi) You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation.
      
    • (vii) You shall attend the SDA church at Korefegu or nearest SDA church every Sabbath for Service whilst on probation.
      
    • (viii) Within release on Probation, you shall join your Local or nearest SDA church youth group either at Korefegu, or nearest SDA church and participate in all its activities during your probation period.
      
    • (ix) You shall undergo counselling from your Local SDA Pastor Korefegu or nearest SDA church for a number of times as may be determined by the counsellor.
      
    • (x) You shall reconcile and compensate Ruditha Feddy with a live pig valued at K1000 with garden food valued at K400 and K1500.00 in cash within 6 months as of today expiring on Tuesday 29^th November 2022.
      
    • (xi) The reconciliation is to be attended and witnessed by the Probation Officer, Village Community Leader Febian Hepoko Korefegu village Bena District and the Police Arresting Officer.
      
    • (xii) The reconciliation is to be recorded and a receipt filed at the National Court Registry by the Probation Officer no later than Wednesday 30^th November 2022.
      
    • (xiii) The Probation Officer shall file a report on the responses and progress of the probationer Namago Bobby every five months whilst on probation starting Tuesday 29^th November 2022 until the probation order lapses.
      
    • (xiv) In a breach of any of these Probation Orders, your Probation shall lapse and you shall be arrested to serve the whole term of your sentence now suspended.
      

Orders Accordingly.

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant