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State v Tulemanil [2008] PGNC 233; N3685 (12 November 2008)

N3685

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1149 OF 2008

Between:

THE STATE

And:

PETER TULEMANIL

Lihir: Gavara-Nanu, J
2008: 12 November

CIMINAL LAW – Sentence – Plea of guilty – Sexual touching – Criminal Code Act, Chapter No. 262 (as amended); s. 229 B (1) (4) and (5) – Two counts of sexual touching on same victim – One count of sexual touching on different victim – Victims aged under 12 years – Victims and accused first cousins – Existing relationship of trust - Big age difference – Serious breach of trust – Whether sentences should be concurrent or cumulative – Totality principle discussed.

Cases cited:

Public Prosecutor v. Sidney Kerua and Billy Kerua [1985] PNGLR 85
The State v. John Pesa [1994] PNGLR 317
The State v. Kagewa Tanang N2941
The State v. Paul Nelson N2844
The State v. Thomas Angup N2830

Counsel:

S. Kesno, for the State
O. Oeveka, for the Accused.

12 November, 2008

1. GAVARA-NANU J: The accused pleaded guilty to two counts of sexual touching of one Sherlyan Pango, a child under the age of 12 and compelling the said Sherlyan Pango to touch his sexual parts for sexual purposes and that at that time, there was an existing relationship of trust between the accused and the said Sherlyan Pango.

2. The offences contravene s. 229 B (1), (4) and (5) of the Criminal Code Act, Chapter No.262 (as amended).

3. The first sexual touching occurred on a date unknown in February, 2007, inside the house in which the victim and her family live, which is located at the Government Housing Compound at Lihir Island mine township (Londolovit); the second sexual touching occurred on 28 December, 2007, inside the same house.

4. The accused also pleaded guilty to one count of sexual touching of one Josephine Pango, a child under the age of 12 and compelling the said Josephine Pango to touch his sexual parts for sexual purposes and that at that time, there was an existing relationship of trust between the accused and the victim.

5. Again, the offence contravenes s. 229 B (1), (4) and (5) of the Criminal Code Act, Chapter No.262 (as amended).

6. This sexual touching also occurred on a date unknown in February, 2007, inside the same house where offences relating to Sherlyan Pango were committed.

7. Each offence carries the maximum penalty of 12 years imprisonment.

8. The facts giving rise to these charges are as follows; in 2007, the accused was living with the victims who are sisters in the same house. The accused and the victims are first cousins because the accused’s father is the victims’ father’s younger brother. The victims’ father is employed by the Lihir gold mine.

9. In respect of the two counts relating to Sherlyan Pango, the first incident happened when Sherlyan returned home from school one afternoon. The accused who was already in the house called Sherlyan into his room and told her to undress. The accused then kissed the victim and touched her breasts and vagina. He then told the victim to touch his penis. The victim was forced by the accused to masturbate him until he ejaculated. The accused also rubbed his penis on the victim’s vagina. He tried to penetrate the victim’s vagina but failed to achieve penetration.

10. In respect of the second incident, it happened one evening at about 7.00 pm when the accused and Sherlyan were in the house. The accused touched the victim’s breasts and vagina, and told her to touch his penis.

11. In respect of the single count relating to Josephine Pango, it happened when Josephine returned home from school one afternoon between 3.00 pm and 5.00 pm, at that time, the accused was already in the house. The accused called Josephine into his room and told her to undress. He then touched her breasts and vagina. He also rubbed his penis on the victim’s vagina and told the victim to touch his penis.

12. These offences are very serious because they involved serious breach of trust by the accused. The accused is also much older than the two victims. The victims were 10 and 11 years old at the time of the offences while accused was 24 years old. Thus, at the time of these offences, there were age differences of 13 and 14 years between the accused and the victims. Because the accused was accommodated and looked after by the victims’ parents, he also breached their trust.

13. The accused is now married with a child. He is employed by Lihir gold mine. The defence submitted that sentences for two counts in respect of Sherlyan Pango should be made concurrent but the sentence for the single count in respect of Josephine Pango should be made cumulative upon the concurrent sentences for the two counts in respect of Sherlyan Pango. Mr. Oeveka told the Court that 14 years made up of 7 years for the two counts in respect of Sherlyan Pango and another 7 years in respect of the single count relating to Josephine Pango would be sufficient and fair punishment for the accused.

14. I refer to a couple of cases which I consider helpful in deciding the punishment for the accused. In The State v. Kagewa Tanany N2944, the accused was a brother of the father of the victim who was 10 years old. In other words, the accused was a paternal uncle of the victim. The accused was charged with sexual touching, because he touched the victim’s vagina with his hands and penis. He was sentenced to 6 years imprisonment. The accused was 41 years old, married with 5 children and was a church elder. There was a serious breach of trust and a big age difference. In The State v. Paul Nelson, N2844, the accused who was 65 years old pleaded guilty to sexually touching a girl aged 12, he was sentenced to 3 years.

15. There is no evidence before me that the victims in this case suffered physical injuries. However, they were abused by their first cousin brother, thus and I have no doubt that they would have suffered psychological and emotional damage.

16. In determining the sentence for the accused, I have taken into account as a serious aggravating factor the fact that the case involves a serious breach of trust by the accused. I have also noted from the depositions that the accused had in the past abused his uncle’s baby sitter who was also a young girl. This indicates to me the accused’s tendency to abuse young girls.

17. The accused is a first time offender. He has expressed remorse. I will take these into account. I will also take into account his plea of guilty. Balancing everything, I sentence the accused to 7 years imprisonment in hard labour in respect of the first count of sexual touching of Sherlyan Pango. In respect of the second count of sexual touching of Sherlyan Pango, I also sentence the accused to 7 years imprisonment in hard labour.

18. In respect of the single count of sexual touching of Josephine Pango, I also sentence the accused to 7 years imprisonment in hard labour.

19. The question now is whether I should make the sentences cumulative. It was submitted by Mr. Oeveka that sentences of 7 years for each of the two counts of sexual touching of Sherlyan Pango should be made concurrent, but the sentence for the single count of sexual touching of Josephine Pango should be made cumulative upon the concurrent sentences in respect of the two counts of sexual touching of Sherlyan Pango bearing in mind the totality principle, so that the aggravate sentence for all three counts does not become excessive.

20. This argument appeals to me because, although the two counts of sexual touching of Sherlyan Pango were committed in separate months of February and December, 2007, the nature of the offences are similar and the victim was the same. Whereas in respect of the single count of sexual touching of Josephine Pango, although it happened in the same month as the first sexual touching of Sherlyan Pango, i.e in February, 2007, the victim was different. I therefore accept Mr. Oeveka’s submission. This approach finds support in the case of The State v. John Pesa [1994] PNGLR 317. Injia A/J, (as he then was), in stating the three principles enunciated in Public Prosecutor v. Sidney Kerua and Billy Kerua [1985] PNGLR 85, and quoting from a passage at 91, his Honour said:

"The second rule is that where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable. Examples given by Thomas are burglary and violence to the house-holder, assault plus escaping from custody, sexual assaults on different victims...

The third rule, the totality rule or principle, is that when the sentencer has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, he must then look at the total sentence and see if it is just and appropriate. If it is not, he must very one or more of the sentences to get a just total. The Court must look at the total sentence and see if it is just and appropriate for the totality of the criminal behaviour."

21. If the sentences were made cumulative upon each other, the total sentence would be 21 years imprisonment. Given the circumstances of the case, I consider that such sentence would be excessive and would not be just and appropriate. More particularly, the first two counts relate to the same victim and the offences in respect of both victims were committed close to each other in time. Thus the sentences for the two counts in respect of Sherlyan Pango can be properly made concurrent, while the sentence for the single court in respect of Josephine Pango being on a different victim can also be properly made cumulative upon the sentences for the two counts in respect of Sherlyan Pango.

22. I therefore order that 7 years imprisonment imposed for each of the two counts of sexual touching of Sherlyan Pango be served concurrently. In regard to the sentence of 7 years imprisonment imposed for the single count of sexual touching of Josephine Pango, I order that it be served cumulatively upon the concurrent sentences of 7 years imprisonment imposed for each of the two counts of sexual touching of Sherlyan Pango. Thus the total term of imprisonment to be served by the accused is 14 years in hard labour.

23. The accused is also fined K1, 000.00, for this, his K1,000.00 cash bail is forfeited to the State.

____________________________________

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