N10885
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR  95 OF 2023

THE STATE

V

MENSON SURUTE

Popondetta: Batari J
2023: 11th May

SENTENCE – sexual touching – accused violated 5 years old daughter in family home – plea – statutory aggravating factors & mitigating factors – sentencing – considerations of – sentence of five years appropriate.

Cases Cited
Nil

Counsel
J. Kesan, for the State
J. Mesa, for the Accused
SENTENCE
11th May 2023

1.	BATARI J:   Menson Surute stands charged that, for sexual purposes, he engaged in an act of sexual touching of the genital area of his daughter, a girl under the age of 12 years. The victim, I will refer to only as RS to protect her identify, was five years old.  Menson pleaded guilty this morning. He now appears again in Court to receive his sentence.

Factual background

2.	On the early morning of 16 August 2022 at Isoge Village, Popondetta, Northern Province, the victim RS was fast asleep in the family house when her father came home. He had been drinking. On his own admissions, he was drunk. Menson accosted the child in the bedroom and fondled her private part with his finger. RS was awoken from her sleep by her father’s intrusion and cried out for help. The victim’s uncle came to her aid and caught Menson in the act. The incident was reported to the police resulting in the arrest and detention of the offender.

The charge and penalty

3.	The offender is charged under s 299B (1) (a) (4) of the Criminal Code.  Subsection (1) (a) charges the offence of sexual touching. Subsection (4) defines the circumstances of aggravation and the penalty. The statutory aggravating factor as defined, applies where the victim is under the age of 12 years. The maximum penalty for violating young victims under the age of 12 years is imprisonment for 12 years. 

4.	The State Prosecutor also relied on the aggravating factor under s 229B (5), of existing relationship of trust, authority or dependency between the offender and the child. The maximum term is also 12 years imprisonment.

5.	The prescribed penalty for both statutory aggravating factors, is not mandatory. Too, the term at the top limit is reserved for the worst type or kind of sexual touching. Under s 19 of the Code, a lesser term of imprisonment may be imposed where the court or judge is satisfied, the facts of the case warrants imprisonment to serve the general deterrence aspect of sentencing.

The offender’s culpability

6.	Penetration is not alleged, and the medical report does not show any significant trauma or injury around the victim’s genital part. The existence of breach of trust elevates the seriousness of the offender’s conduct and as Ms Aihi submitted, the conduct of the offender against his own daughter calls for a term of imprisonment within the range of six years to ten years. 

7.	Another aggravating factor from the offence itself is the trauma from the attack on the young victim. The setting was in the early hours of the morning when RS was no doubt fast asleep. She was suddenly traumatised when rudely awoken from her sleep and sexually violated by a drunken father. She cried and called for help from the evil harm by her own father. Law abiding citizens would frown upon him as monstrous. He should know better and wiser not to sexually violate his own daughter.

8.	He was drunk. That is not an excuse. However, there is no evidence he deliberately set out to get drunk to molest his daughter. It is sufficient that the evil side of alcohol affected his good sense.  

9.	Sexual violence against children is viewed with abhorrence and disgust in a peaceful, law-abiding community.  The people view sexual violence with repugnance when the offence is committed against a relative.  This is because in most societies, sexual relationships between relatives are against human decency, it is morally and ethnically wrong.

10.	The circumstance of this case may not fall into the worst or bad category. It is still a serious matter when young girls are sexually molested or violated at their tender age. The law seeks to protect them from adults with the tendency and preferences of young victims for their own sexual gratification.

11.	There have also been far too many cases of this type being reported and successfully prosecuted these days. There may be other numerous instances that are reported only in the media and not investigated and prosecuted. Though unsubstantiated, the reports convey the clear message that children are being abused and sexually molested and violated in greater numbers now than before. This bring shame and disrepute to the people and this country.

12.	So, protection of the children and the community against adult predators is imperative. Child offenders should not be allowed to roam around the community freely. They are a danger to the children and the female population.  Sterner measures are necessary to punish those offenders. That is the duty the Court will undertake to mete out appropriate punishment where it is warranted on the facts of each case. 

Mitigation

(i)   Arrest and Custody  

13.	The offender was arrested on or shortly after the date of the incident on 16 August 2022. He has been in custody since. He was committed to stand trial in the National Court on 5 December 2022 and has pleaded guilty at the earliest opportunity. His time in custodial is eight months. The time in custody is relevant after imposition of the head-sentence. I will consider that in deciding whether to deduct the period in question.

(ii)   Age and Personal Background

14.	The offender is 34 years old and married with two children, the victim now aged six years and a three-year-old brother.  He is villager, a subsistent farmer, I believe, supporting his family from the land and sea.  He completed grade 6 and belongs to the SDA Faith. His conduct I believe is inconsistent with the SDA Church. This is his first offence and he has expressed remorse.  

Plea

15.	This is an plea of guilty. That is an important consideration.  The fact of a plea saves time and expenses for the Court and the State in the calling evidence on a trial, it saves the young victim the trauma of having to give evidence in open court, it supports remorse and contrition on the part of the offender.  The benefit in the reduction of a sentence from what might be the starting point for similar kind of offence will also give and act as an incentive to plead guilty.

Facts from the offence

16.	The act was not repeated.  The girl did not suffer any serious injury and there was no suggestion of physical force applied.

Cases relied on by Counsel

17.	Both counsel have relied on a number of case precedents. From those cases, the sentence for similar type offences would be within the range of three years to eight years, averaging around four and six years.

18.	Balancing the circumstances of the offence, the personal circumstance of the offender, his prior good background and his plea, the sentence of the Court is 5 years imprisonment IHL. I will deduct the time spent in custody. His remaining sentence to serve in hard labour is four years and four months.
  
Sentenced accordingly. 
 
_________________________________________________________________________
Public Prosecutor:  Lawyer for the State 
Public Solicitor: Lawyer for the Accused