State v Tanfa [2022] PGNC 293; N9712 (27 April 2022)

N9712

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 574 OF 2020

BETWEEN:
THE STATE

AND:
BRUNO TANFA JUNIOR

Vanimo: Rei, AJ
2022: 5^th, 8^th, 10^th, 25^th & 27^th April

CRIMINAL LAW – Practice and Procedure – sentence – sexually touching the vagina with penis – victim 7 years of age – prisoner 31 years of age – difference of 24 years – victim half sister to prisoner – betrayal of trust, 2 years, 8 months remand deducted – balance of sentence suspended

Cases Cited:

The State -v- Junior Bob Namah [2021] N9157
The State -v- Mai (No.2) [2017] N6628
The State -v- Andy [2012] N4779
The State -v- Handrella (No.2) [2016] N6196
The State -v- Fred (No.2) [2014] N5758
The State -v- Kuila (No.2) [2009] N3736
The State -v- Mormor [2021] N9401

Legislation:

Section 229B (1) (a) (5) of the Criminal Code

Counsel:

Mr. G. Korei, for the State
Mr. P. Moses, for the Defence

SENTENCE

1. REI AJ: The prisoner was charged with two (2) counts of rape and sexually touching the vagina or “kapi kapi” as referred to in the local dialect. He was charged with two alternative counts of sexually touching the vagina or “kapi kapi” with his penis and sexually touching the vagina or “kapi kapi” with his fingers.
   

2. The charges were laid under Section 229B of the Criminal Code.

3. The prisoner entered a plea of not guilty and a trial was conducted during which the State called three witness: Joni Baki Tanfa and Dr. Keledi.

4. The accused called Indah Tanfa who gave evidence on alibi defence. The prisoner also gave evidence.

VERDICT

5. The Court handed down its decision on the 25^th April 2022 that two (2) counts of rape and sexually touching with fingers were dismissed. It also found that the alternative charge of sexually touching the vagina or “kapi kapi” with fingers be dismissed.

6. The Court however found that the prisoner is guilty of the alternative count of sexually touching with his penis the vagina or “kapi kapi” of Vicky Tanfa, a girl of 5 years of age on the 15^th of September 2019 at Wutung Village, West Sepik Province.

7. The matter comes before the Court for sentencing.

8. Section 229 (B) under which the prisoner is charged provides:

“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, 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.

(4) If the child is under the age of 12 years; an offence 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 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.”

9. It provides for a term of imprisonment not exceeding 12 years.

10. This implies a sentence of up to 12 years but not more than 12 years.

11. The issue is what sentence is to be imposed in this given its facts and circumstances.

MITIGATING AND AGGRAVATING FACTORS

12. The mitigating factors are that the prisoner is a first-time offender, has no previous record of conviction, accepted the verdict and was remorseful.

13. The aggravating factors are that the victim was very young with a big age difference of 21 years, having to give evidence from the dock recounting the trauma she went through, the prisoner and victim are half brother/sister in which the prisoner was placed in a position of trust and authority.

14. The victim is now stigmatised by her peer group and class mates.

SENTENCE

15. Prior to engaging myself in considering other cases as guide to imposing a sentence, I refer to the case which I decided involving similar set of facts. The case of The State -v- Junior Bob Namah [2021] N9157 in which I imposed a sentence of 5 years.

16. That case involves consensual sex in which a girl whose age was 10 months shy of reaching the age of 16 years was involved.

17. In this case the act of touching the vagina or “kapi kapi” with penis does not involve consensual sex and the age of the victim was 5 years whereas the age of the prisoner is 21 years – difference of 16 years.

18. This case was referred to Mr. Korei in his submission as such I mention it here.

19. I was however referred to a number of cases by Mr. Moses to assist me. These are as follows:

The State -v- Mai (No.2) [2017] N6628 - Prisoner found guilty after trial. Prisoner touched the victim by inserting his finger into her vagina. Victim was 9 years old. Prisoner was referred to as an uncle of the victim. The offender breached a relationship of trust. Imposed 5 years.

The State -v- Andy [2012]; N42779 – Offender found guilty after trial under Section 229B (1) (a) (5). Victim was 15 years old. Offender was 33 years old. No genuine remorse. Victim has impaired vision. Court ordered that compensation of K1,000.00 be paid within 3 months. Imposed 4 years.

The State -v- Handrella (No.2) [2016] N6196 – Prisoner found guilty after trial. The victim was at the age of 5 years at the time the prisoner committed the offence against her. The prisoner was a 60-year-old man. No serious injuries caused to the victim. There was a betrayal of trust. Order of compensation in the sum of K500 to be paid to the victim within 7 days. Imposed 5 years.

The State -v- Fred (No.2) [2014] N5758 – Prisoner found guilty after trial on one (1) count of sexual penetration and 1 count of sexual touching. Relationship of uncle/niece. Victim was 9 years old and the prisoner was a grown adult. For SP, sentenced to 17 years IHL. Both served concurrently. Imposed 5 years.

The State -v- Kuila (No.2) [2009] N9401 – Prisoner found guilty after trial on 3 counts of sexual touching. Prisoner 67 years and victim 9 years old. Offence was perpetrated for over a long period of time. 2 years IHL imposed in each of the charge totalling 6 years to be served cumulatively. Imposed 6 years.

The State -v- Mormor [2021] N9401 – Offender found guilty after trial one a charge of Sexual Touching Prisoner was 29 years old and victim was a 7-year-old girl. Prisoner grabbed the victim, pulled her into the bushes and licked her vagina several times with his tongue. Custody period of 1 year and 6 months deducted and balance is fully suspended subject to mental evaluation of an expert in mental health. Imposed 4 years.

20. This case falls within the range of sentences imposed in the cases referred to herein.

21. The facts warrant a custodial sentence to be imposed. But the case is not the worst kind of case where serious injuries were caused to the genitals of the victim. It involves sexual touching with the penis of a vagina.

22. But I do not consider this to be any less serious because it involves a child who was and is not in a position to appreciate what then happened to her.

23. I was compelled in submission by Mr. Korei to impose a sentence of 12 years considering the prevalence of the offence. Mr. Moses however submitted that a sentence of 4 years be imposed less time spent in remand of 2 years 8 months and the balance of the sentence suspended.

24. I am mindful of the prevalence of the offence. I am also mindful the prisoner has been remanded in custody for 2 years 8 months and the prisoner is 21 years of age, a relatively young man whose wife has left his 2 year old and 8 months old child unattended to. Serious consequences will flow if those children are left as orphans.

25. Given the age of the prisoner and of the fact that he has a young family to look after whose mother has since deserted them, a sentence reflecting this considerations should be imposed.

26. I order that the prisoner be sentenced to 6 years – less time spent in remand of 2 years 8 months leaving a total of 3 years 4 months imprisonment to be suspended on the following terms:

• to be on good behaviour bond;
• pay compensation of K1,000.00 within 3 months from today;
• to refrain from taking any form of drug including marijuana;
• not to harass or intimidate the victim or her parents in anyway during the suspension period;
• report to Probation & Parole Office Vanimo every Monday for 2 years; and
• if the prisoner defaults, he shall be arrested and brought to be dealt with.
  

______________________________________________________________

Public Prosecutor: Lawyer for the State

State Solicitor: Lawyer for the Defendants