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State v Dick [2007] PGNC 58; N3220 (7 June 2007)

N3220

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.531 OF 2005

THE STATE

v

ALOIS DICK

Kokopo: Lenalia, J.
2007: 16, 29, 31 May
& 5 & 7 June

CRIMINAL LAW – Sexual touching – Plea – Matters for consideration –
Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

Cases cited:

The State v Mitige Neheya [1988-89] PNGLR 170
The State v Kegawa Tanang (2003) N2941
The State v Penias Moke (2004) N2635
The State v Thomas Angup (21.4.05) N2830
The State v Thomas Tukalia (22.2.06) N3026
The State v Jerald Javigut (9.8.06) CR.N0.93 of 2006
The State v William Patangala (22.2.06) CR.NO.800 of 2004

Counsel

L. Rangan, for the State
P. Moses, for the Accused

7 June, 2007

1. LENALIA, J: The prisoner was charged with one count of sexual touching and the second charge for the offence of incest of his daughter. He pleaded guilty to the first count of sexual touching. On the second count, he entered a plea of not guilty. These offences are contrary to Sections 229B and s.223 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

2. A short trial was conducted on the second charge after which the defence counsel made a submission of no case to answer. The basis of such submission was that there was no evidence from which the court could infer that there was a case for the accused to answer as he could not be lawfully convicted.

3. When the court was doing the judgment on the ruling on the no case to answer submission, it found the medical report which the Health Extension Officer at the Keravat Health Centre, Mr. John Galele compiled on 21 January 2005. The Lawyers did not address the Court on that document.

4. On the 29th of last month, I issued directions to lawyers to address the court on that document because such medical report was essential for the defence case. The report suggested that there was no penetration. The victim was not called to give evidence to support sexual penetration by incest. On the 31st of last month this court made a ruling on which it ruled in favour of the no case submission. The accused was acquitted on the second charge.

5. The following discussion only relates to the judgment on sentence on the charge of sexual touching under s.229B of the Act. That charge is contained in count 1 on the body of the indictment.

FACTS

6. The brief facts on the charge of sexual touching which are not disputed are that, between the month of October 2004 and January 2005, the prisoner engaged in sexual touching of the victim. The nature of sexual touching included the prisoner touching the victim’s breasts and vagina. At times he would lick or suck the victim’s private part. There might be some elements of threatening and force being used toward the victim.

ADDRESSES

7. When the court administered allocutus to the prisoner, he said he is very sorry for what he did to the victim and his own family. He said sorry and begged for forgiveness from the All Mighty God and said sorry to the Government and the community where he comes from. He said being charged for this offence does not make him that bad as he was tempted by the devil which caused his spiritual down fall as well as if the court may add his physical down fall.

8. Mr. Moses of counsel for the prisoner spoke to his ten pages written submission. Counsel submitted that, the court should take into account the prisoner’s guilty plea and his previous good character. He cited about eight cases on sexual touching which the court will discuss a little later.

9. For the State, Mr. Rangan submitted that although he agreed with the defence counsel on the address on sentence, the court should consider the deterrent aspect of curbing the offence of sexual touching and the sentence that this court imposes must have the effect of deterring the prisoner and other likely would be offenders as this crime is very prevalent in this Province.

LAW

10 Like any another offences, the maximum penalty for the offence of sexual touching under s.229B (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act is 7 years imprisonment. The Above states:

"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."

11. Then further down on aggravations, Subsection (4) and (5) state:

"(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 and 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".

12. Sexual abuse of very young children and the women in this country has been adequately addressed by the Parliament when it passed the Criminal Code (Sexual Offences and Crimes Against Children) Act of 2002. The Act provides for all forms of sexual abuse including sexual touching, sexual penetration, indecent acts directed at a child, persistent sexual abuse and even "child prostitution" and "child pornography".

13. I have looked at all cases that were cited by Mr. Moses of counsel for the prisoner. I distinguish the present case from those cases of sexual touching involving persons like cousin brothers and their sisters or those cases involving persons who might not be related to very young victims like the case of The State v Jerald Javigut (9.8.06) CR.N0.93 of 2006 or that of The State v Thomas Tukaliu (22.2.06) N3026, see also The State v William Patangala (22.02.06) CR.N0.800 of 2004.

14. Sexual touching cases between grand fathers and grand children and those between fathers and their children or brothers and sister or mothers and sons should be treated differently from distant relatives. In the case of The State v Thomas Angup (21.4.05) N2830, the prisoner pleaded guilty to a charge of sexual toughing of his step daughter. He was convicted and sentenced to a term of 6 years. So was in the case of The State v Kagewa Tanang (2003) N2941, the victim was the daughter of the prisoner’s brother. He pleaded guilty to one count of sexual touching; he was sentenced to 6 years.

15. In my view, sexual abuse is the most severe kind and I think this form of abuse is what the Criminal Code (Sexual Offences and Crimes Against Children) Act is trying to address. Other types of child abuse are taken care of by other legislations such as either the Criminal Code itself or the Summary Offences Act or the Child Welfare Act.

16. There are a number of aggravations in the circumstances of this case. First, there was a very big gap age difference between the victim and the prisoner. According to the case of The State v Mitige Neheya [1988-89] PNGLR.174 where there is a substantial age difference, it is an aggravation. I adopt the principles stated in that case and also say that, the breach of trust involved in the circumstances of the present case was severe in nature as the victim is the daughter of the accused. As you were sexually abusing your daughter, in fact you asked her to have sexual intercourse with you, she would tell you that she is your daughter and you are her father and you should not do what you were suggesting to her.

17. Under-age children, all youths be they girls or boys alike and even our women are protected by law. They have the right to the protection of law as much as the adults have. Children deserve to be treated with all courtesy due to them just like what is due to any other human beings. The prisoner sexually molested his daughter for a period of 4 months. What good did you get from sexually abusing you own daughter or step daughter for that matter when you had her mother to satisfy your sexual gratification.

18. There are many cases either in this Province or elsewhere which show that, under-age children have been subjected to persistent sexual abuse by members of their own families or very close relatives as the facts of the instant case reveals. As the victim shows in her statement, she will have to live with the trauma, guilt and fear.

19. In The State v Penias Mokei (No.2) (26.8.04) N2635 Cannings, J. set out certain considerations which should be considered as a guide to sentencing offenders on charges of sexual abuse under the Act. I have covered some of those factors in this discussion. One of the relevant considerations which His Honour made in that judgment is "the level of breach of trust". If the relationship of trust between the accused and the victim is very close, the more serious the betrayal of trust it becomes and the higher the penalty should be.

20. It is not fair for a person like you to treat a member of your own family in the manner you treated your step-daughter. You have the sexual pleasure of your wife. That is right in law, however for you to sexually molest a small child like R.D what good did it do to you or to the victim herself? You had no respect for your family members. What you did is totally out of human logic and very serious in law. How can you treat your own family member like what you did to the victim when you have your wife to go to for sexual gratification? If your wife had passed away then at least you should have gone to a woman of your age and size rather than defiling the victim at her very tender age.

21. What I have mentioned above would appear in law to be very serious aggravations. The reason they are serious is because, the Act itself states that those aggravations are serious indeed. On the relationship of trust, authority or dependency, s.6A defines such relationship in the following words:

"(1) When the term relationship of trust, authority or

dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where –

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant’s grandparent, aunt, uncle, sibling (including step-sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(f) the accused is a counselor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care or control."

22. The abuse of any provisions of the above Section is an aggravation under s.229E of the Act. In all sexual cases that have been brought before this court up until this case, this provision has not been charged or even pleaded in the indictment. Before, I continue on with what I wish to say, let me quote the terms of the above Section:

(1) "A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15

years.

(2) It is not a defence of a charge under this section that a child consented unless, at the time of the alleged offence, the accused believe on reasonable grounds that the child was aged 18 years or older."

23. It would seem to this court that, the practice for some of us judges has been that we take circumstances of aggravations because, the law says that they are aggravations as they are defined in Act. But s.528 (2) of the Criminal Code states that if circumstances of aggravations are to be relied on, such must be charged in the indictment. The above Subsection provides:

"(2) Subject to Subsections (3) and (4), if any circumstance of aggravation is intended to be relied on it must be charged in the indictment."

(See case of The State v Misael Butemo Jiregari [1984] PNGLR 62.

24. If there has been some practice direction in the Office of the Public Prosecutor in regard to presentation of indictments without pleading aggravations then the Court should be made aware of such situation. I would ask counsels particularly prosecuting counsels to take note of these comments and ensure that where there are aggravations present in certain cases must be properly pleaded in the indictment.

25. The offence of sexual touching is punishable by the prescribed penalty of seven (7) years. However, if it is aggravated by an existing relationship of trust, authority or dependency, the penalty prescribed by Subsection (5) of the section charged is an imprisonment term of not exceeding twelve (12) years.

26. The accused breached the trust existing between him and his daughter. In time of trouble and danger the victim should flee to the accused for safety. Instead of safeguarding the interest of the victim, the accused thought he would take advantage of the young victim by his evil allurements. The prisoner performed cunnilingus on his daughter as though the victim was a grown up person. She might have been between the age of 11 and 13 years because when the doctor examined her on 21 January 2005, he found that she had not grown pubic hair.

27. Breach of trust, authority or dependency as the case may be is an aggravation of the most severe kind according to the case of The State v Mitige Neheya [1988-89] PNGLR.174. I differentiate the instant case from cases of sexual penetration. Be that as it may, the offence of sexual touching is still very serious as can be seen from the above proviso providing for imprisonment of 7 years or 12 years as the case may be given the different ages and where there is an existing relationship of trust. At the time of the offence, the accused was 39 years while the victim was only below 13 years. This is an aggravation according to the above case.

28. In the circumstances of the instant case, I have considered the prisoner’s mitigating factors together with his guilty plea. The accused however abused his daughter. It is beside the point if the victim was the prisoner’s adopted daughter or real daughter, it is the abuse of the trust relationship which the law protects. As already stated, due to the prevalent nature of this offence, the public must be made aware of our duties towards young children including the women folks.

29. On sentence, the court takes into account the prisoner’s guilty plea and the counsels’ submissions on mitigations and aggravations. I consider that a sentence of 5 years is appropriate. The prisoner is sentenced to 5 years imprisonment. The court will not suspend any portion of this sentence as I feel that there was a serious breach of the relationship between the prisoner and the victim. In this sense, it was not sexual touching per se by fingers but the prisoner persistently licked her daughter’s vagina which act is very evil not only because the victim was not his wife, but the clergy would condemn this practice as well she was none other than his own daughter. He will serve the balance.

____________________________________________

The Public Prosecutor: Lawyer for the state
Paul Paraka Lawyers: Lawyer for accused.