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Government v Hollebone [1978] PGNC 2; N130 (28 March 1978)

Unreported National Court Decisions

N130

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE GOVERNMENT
V
DOUGLAS ARTHUR HOLLEBONE

Waigani

Wilson J
28 March 1978

REMARKS ON SENTENCE

WILSON J: Douglas Arthur Hollebonu ayou are a man who is 53 years of age. You are married. You have been found guilty on your own confession of “indecent treatment of a girl under 12 year21;. You committed this crime on 31st October 1977. What yoat you did was to meet, whilst in the company of another man, Neville Graham Josey, two small girls after school. You had met them previously. You both went with them to a flat where you both offered the girls a drink and some chewing gum. After the man Josey had offered to give K2.00 for every kiss he received, you then called one of the girls, Leanne Marie Day (aged 10 years and 7 months) into a bedroom. You kissed the girl. You pulled the girl’s pants down; you put your finger into her vagina. Whilst you were doing that, you masturbated. You also licked the girl’s vagina. After you had satisfied your sexual desires you offered the little girl K10.00 and said that she could keep it. It is true that you did not cause the child any physical harm or to be frightened, and it appears that she was a willing party. However, it must be said that she was not only very young but also physically immature; it would be impossible to assess the extent (if any) of the psychological harm that might have been caused. It goes in your favour that neither girl made any complaint as to what had happened; they apparently only disclosed the full facts some weeks later when they were tackled by their parents about the matter.

The crime to which you have pleaded guilty is regarded most seriously by the law. It is punishable by a maximum term of imprisonment of 5 years. The law no doubt takes such a serious view of crimes of this kind because it recognises that young girls under 12 should be protected from sexual molestation at the hands of men such as yourself.

You are not a first offender. You have previously been before courts for offences involving young girls. In 1965 you were convicted of carnal knowledge of a girl of 14 years of age; in 1973 you were convicted of indecent exposure in the presence of three or four girls aged about 11 or 12. You are not entitled to the leniency that a first offender might expect to receive. Before I deal with the principles which I have applied in approaching the difficult task which I am called upon to perform, I should mention a number of special features of your situation.

First, I take into account in your favour the fact that you have pleaded guilty. You are extremely sorry for what you did, and you carry a considerable burden of shame. One witness said that he had “seen the anguish”. I am prepared to accept that as a good description of how you have felt. I take into account the not inconsiderable punishment that that has involved for you already.

Secondly, apart from this and your previous convictions you are a man of good character with a very high reputation. It speaks volumes for you that as many as six witnesses (all reputable citizens) were not only prepared but anxious to help you by speaking on your behalf. Two or more of them were willing to guarantee your future good behaviour by putting their own money at risk.

Thirdly, you had a distinguished war record. Although you were left very much a victim of the war, it is to your very great credit that you were awarded the Military Medal.

Fourthly, you are a married man with two boys. I accept that you are a good husband and a loving father to your two boys. You have a good work record in recent years, and you have shown that you are a capable member of the business world. You have in the past lifted yourself from adversity.

Fifthly, I accept that, if you are sent to gaol, your family will be punished in many ways more than you. In certain special cases that may be a sufficient reason for a court to impose some other form of punishment or correctional treatment. I am not satisfied that yours is such a case.

Sixthly, I accept that your criminality is to a large extent the manifestation of anxiety psycho-neurosis or a psycho-sexual disorder from which you suffer. You were at the time of this crime what is variously called a man of diminished responsibility or a man of impaired capacity. The combination between your psycho-sexual disorder and the aftermath of the war has caused you to have less control than others. I take these matters into consideration to a very large extent in reducing both the overall sentence and the effective sentence that you will be called upon to serve. I regret that, on account of my duty to the public and having regard to the law which I must apply, I cannot see my way clear to impose a non-custodial sentence.

I now refer to some of those principles of sentencing which apply in a case of this kind:

1. ټ I60; It must be said that this case is a difficult one for me. It involves attempting to strike a balance between the public interest (and the need for public protection) on the one hand and the interests of persho isck man man in nein need ofed of care and treatment) on the other. This case also involves attempting to draw a line between criminal conduct and conduct which may be seen as a manifestation of illness or a disturbed personality.

2. ټ&#T60; awe law does does not take full account of the fact that some serious crimes (such as this one) may be committepeoplse lef responsibility or whose disability is such that they may seem to need need non- non-custocustodial treatment in preference to custodial treatment. The law does not yet fully recognise (as I see it) that on occasions the public can be better protected by a wholly individualised sentence orientated towards treatment and rehabilitation rather than by a custodial sentence. The law, I regret to say, does not provide me in a case of this kind that power to impose a suspended sentence.

If I am to apply the statute and accepted sentencing principles and if I am to take account of both the seriousness of this crime and the fact that you have previous convictions, the law says that I should impose a prison sentence.

3. & This is a casr where in sein sentencing I must give priority to the notions of public protection and deterrence. You by yailurrespo oppoties ave had in the past have disentitled yourself, sad sad as itas it is, is, from from expecexpecting this court to treat the notion of rehabilitation as paramount. Having said that, I intend to take into account the mitigating circumstances, most of which I have referred to, and I intend that you should be assisted within the framework of the sentence to achieve a rehabilitation. Your sentence and the accompanying orders would operate upon you much more harshly if it were not for the circumstances surrounding your ill health and personal background. The public will in the long term be more protected if that rehabilitation comes about. I am persuaded by the evidence before me that, notwithstanding the past, rehabilitation is still reasonably attainable. You are, I trust, motivated for treatment, and I propose to recommend that you receive it.

The sentence of the court is that you be imprisoned with hard labour for a period of two years.

I further order, exercising my powers under Section 19(f) of the Criminal Code Act, that you be imprisoned for 8 months of that term and that the execution of the sentence for the remaining portion thereof be suspended upon you entering into a recognizance of Five hundred kina with two sureties of Five hundred kina each to keep the peace and to be of good behaviour and to appear and receive judgment (if called upon) in respect of your service of the portion of your sentence so suspended.

I recommend to the Commissioner of Corrective Institutions that during that part of your sentence as you may be required to serve you be held (if possible) in a hospital or such other place where you may have access to psychiatric treatment and facilities and where you may receive a measure of protection against yourself. (I here refer to your history of suicidal gestures).

I draw your advisors’ attention to the provisions of Section 627 of the Criminal Code Act. This may be a case in which, notwithstanding the fixed sentence announced by me (2 years) and notwithstanding my order that you serve eight months of that term, it may be considered desirable that you be released even earlier than eight months from the commencement of these sittings on condition, inter alia, that you need good in-patient psychiatric treatment in Australia at the Concord, Repatriation Hospital (under Dr Clements) for a period equivalent to the time you would otherwise have spent initially in prison.

Solicitor for the State: K.B. Egan, State Solicitor

Counsel: A. Alpine

Solicitor for the Accused: Messrs. Francis & Francis

Counsel: A. Crane