Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Towoit [2006] PGNC 131; N3164 (6 September 2006)

N3164

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1238 OF 1998

THE STATE

v

TONY TOWOIT

Kokopo: Lay J
2006: 21 and 23 June,
6 September

CRIMINAL CODE - s229B(1)(a) and 229(4 )- sentence - offence committed 1998 - Criminal Code s11(2) - maximum penalty 2 years - rubbing penis on vagina - victim girl aged 5 years - prisoner then aged 18 years - sentence 18 months IHL.

Facts

The prisoner then aged 18 years instructed the female victim then aged 5 years to lie down and remove her pants. He then lay on top of her and rubbed his penis on her vagina. There was no penetration. The exterior area of the victim’s vagina was inflamed. The prisoner was committed for trial in 1998 pursuant to Criminal Code s349 (sexual assault) which then had a maximum penalty of 2 years. Compensation of 20 param’s of shell money was paid.

Held

The Code s349 applicable in 1998 was now repealed. The Prosecutor brought the indictment under s229B as an allegation of sexual touching. The act complained of constituted an offence both before and after the amendments introduced by the Criminal Code (Sexual offences and Crimes against Children Act). The indictment was proper. The maximum penalty was 2 years under s349 and 12 years under Code s229B(1) and (4). Therefore pursuant to the Constitution s37(7) and Code s11(2) the maximum penalty in this case is two years. The appropriate sentence is 18 months.

The absence of events (such as no pregnancy, no penetration) which would constitute a more serious offence are not mitigating circumstances for the lesser offence.

Cases Cited:
Avona v State [1986] PNGLR 148,
Andrew Amid CR1077/204 (unreported, unnumbered 23.02.05).

Legislation Cited:

Constitution s37(7), Criminal Code ss229(1) & (4), 217(repealed), 349 (repealed).

Counsel:

L. Rangan, for the State
P. Kaluwin, for the Defendant

1. LAY J.: The prisoner has been convicted on a plea of guilty to one charge of sexual touching contrary to the provisions of Section 229 B(1)(a) and 229B(4) of the Criminal Code, having been, on 7 October 1998, committed to stand trial on a charge of indecent assault contrary to Section 349 (now repealed).

2. The short facts read to the prisoner before the plea was that on 3 July 1997 he was at Raluan, Gazelle District. He went to look for Lau Lau (a fruit). A female child aged about five years named PV (full name withheld for her privacy) was with him. The prisoner asked her to sleep on the ground and to remove her pants, which she did. The prisoner then lay on top of her and rubbed his penis on her vagina. The child did not consent.

3. The antecedent report discloses no prior convictions.

On his allocutus the prisoner said that this was the first time to be in a big court. He asked for the discretion of the court and mercy. He said sorry to the court, the victim and counsel. He asked the court to let him stay on probation and serve his time there. He said that after he was placed on bail he did not do any more trouble until the police took him back. This latter comment was a reference to being re-arrested on a bench warrant for failing to obey the conditions of bail. The prisoner also asked the court to consider the number of years that he has been in prison, that his father has died already and his mother is elderly. His brothers and sisters live far away from home and he is the only one to look out for his mother. He has some cocoa and vanilla, if he goes to gaol no one will look after those to help his mother.

4. Counsel for the prisoner submitted that the prisoner was aged 26, single from Raluan village. He is the fourth in a family of 7, 5 brothers and one sister. All his siblings are married and living with their families. The prisoner was educated to grade 7 at Don Bosco Technical School in 1995. He was once employed as a bulk store clerk at Ling's Freezer, Rabaul. He has spent nine months in pre-trial custody.

5. In mitigation counsel for the prisoner submitted I should take into account the following:

1. The prisoner is a first offender
2. the plea has saved the court's time
3. the plea has saved trauma to the victim
4. there is no evidence that the victim is still affected, it was submitted the events would now be a faint memory and the victim would have fully recovered.
5. More weight should be given to the admission because it was made at an early date, at the first police interview.
6. His family paid 20 param's of shell money to the family of the victim.
7. There was no actual penetration.
8. No venereal disease or pregnancy.
9. The medical report showed no evidence of long-lasting physical injury.
10. There was no issue of breach of trust.
    

After considering the submission made by counsel for the State, counsel for the prisoners submitted that the sentence should be one of less than two years.

6. Counsel for the State submitted that this offence occurred prior to the introduction of Section 229B and that section replaced Section 349 which had a maximum penalty of two years. In view of the provisions of the Criminal Code Section 11(2) counsel submitted that the penalty could not be more than two years.

Section 349 (now repealed) of the Criminal Code provided that:

A person who indecently assaults a woman or a girl is guilty of a misdemeanor. Penalty: Imprisonment for a term not exceeding two years.

7. I must say that in preparing this judgment I have been troubled by the fact that the acts to which the prisoner pleaded guilty were also an offence under the now repealed s.217 (indecent treatment of girls under 16) and as the girl was under the age of 12 years the maximum penalty would have been 5 years pursuant to s.217(3). However, as that Section has never been mentioned either at the committal or trial stages it is too late now to suggest that the Prosecutor has taken a wrong course.

8. However it raises an interesting question about the Public Prosecutor’s discretion to prefer "a charge of any offence that the evidence appears to him to warrant": See Code s.525(b). Before the amendments referred to in the next paragraph it would have been open to the Prosecutor to prefer a charge under s.217 even though the prisoner was committed to stand trial under s.349, thus increasing the maximum penalty to 5 years. Now that both s.217 and s.349 are repealed and replaced by one Section is it still open to the Prosecutor to nominate which of those repealed Sections he would have preferred an indictment under, so as to determine the maximum penalty under the replacement Section? It does not fall to me to answer that question now.

9. Section 349 was repealed by the Criminal Code(Sexual Offences and Crimes against Children) Act 2002 (No. 27 of 2002 Section 19 ) and replaced with the following:

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, 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 Subsections (4) and (5), imprisonment for a term not exceeding seven years.

(2) For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.

(3)...

(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)...

10. Criminal Code Section 11 (2) provides guidance as to what is to happen when an offence is amended, in the following terms:

11. Effect of changes in law.

(1) A person cannot be punished for doing or omitting to do an act unless—

(a) the act or omission constituted an offence under the law in force when it occurred; and

(b) doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.

(2) If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorized by the former law, or to any greater extent than is authorized by the latter law.

11. There is no doubt that the act constituting the offence to which the prisoner has pleaded guilty was an offence under Section 349 which was in force when the offence occurred and "doing... the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence" namely s.229B.

12. In Avona v State [1986] PNGLR 148 (Kidu C.J. Amet, Cory, Los and Wilson JJ) the Court said for ease of obtaining the true meaning of s.11(2) of the Criminal Code one can add the words "whichever is the lesser" to the end of the section. This interpretation is necessary so as not to conflict with the Constitution s.37(7) which provides:

(7) No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.

13. So to paraphrase Section 11(2) the prisoner cannot be punished to any greater extent than the former s.349 (now repealed) which provided for a two-year maximum penalty or to any greater extent than is provided by s.229B(4), which provides for a maximum penalty of 12 years, whichever is the lesser. I accept the submission of counsel that the penalty must be a maximum of two years even though, since 2003, the Legislature has considered the appropriate maximum penalty to be 12 years.

14. As counsel for the prisoner conceded, the aggravating factor in this case is the age of the child victim. There was an age difference of 13 years, the prisoner then being 18 years of age. He was already a young adult in the eyes of a child of five years. As I commented in the case of Andrew Amid CR1077/2004 (unreported, unnumbered 23.02.05) (a case of sexual touching of a child by a person with an existing relationship of trust contrary to s229E), what the prisoner did, in lying on the victim, is more serious than a touching by hand because it could easily lead to actual penetration. So the age difference, the very tender years of the female child, and the manner of touching are matters which aggravate the offence.

15. On the other hand, in mitigation the plea of guilty is consistent with the very early admission to the police in the record of interview. And saving the victim from giving evidence is a very significant matter because she is now in her early teens, a very vulnerable time for serious emotional upset. The compensation paid by the family would have increased harmony between the two families and was no doubt a contributing factor to the prisoner being able to avoid re-arrest on bench warrant for a number of years. The prisoner's contribution to the wealth which was exchanged was in all probability, minimal, considering his age at the time.

16. That there was no actual penetration or pregnancy are not to my mind factors in mitigation of this offence because such matters relate to a much more serious offence. It is not logical to say that the fact that a more serious offence was not committed is a mitigating circumstance.

17. That the prisoner has been of good behaviour since commission of the offence is a factor in mitigation.

18. As to the prisoner’s personal circumstances now in relation to his family, these are matters which the prisoner should have taken into account before committing the offence.

19. Counsel for the prisoner requested that a pre-sentence report be obtained for the purpose of considering whether or not it was appropriate to suspend part of the sentence. Such a report was obtained on the return of the Probation Officer to the province. The report indicates the prisoner is an unstable young man with not a very good reputation in the village. He has no plans to further his education, nor to marry in the near future. He has no money saved and does not own any assets. He relies on money earned from harvesting coconut and cocoa from his mother's blocks which his mother administers. The view is expressed that he would default on any fine imposed and may still be a danger to the community.

20. Taking into account all of the aggravating and mitigating circumstances and the charge on which the prisoner has been convicted my view is that the appropriate sentence in this case is imprisonment for a period of 18 months from which the nine months spent in pre-trial custody will be deducted, leaving a period to serve of 9 months. The sentence to take effect from the commencement of the June circuit.

21. I do not consider that it would be appropriate to consider suspension of part of this already short sentence.

___________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner