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State v Narakavi [2009] PGNC 109; N3737 (16 April 2009)

N3737

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.924 OF 2008

THE STATE

V

JACK MANUEL NARAKAVI

Kokopo: Lenalia, J.
2009: 18th, 31st & March 16th April

CRIMINAL LAW – Sexual touching – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.229B (1) (a) (5).

Cases cited:

The State v Mitige Neheya [1988-89] PNGLR 170
The State v Kegawa Tanang (2003) N2941
The State v Kiddie Sorari (2004) N2553
The State v Penias Moke (2004) N2635
The State v Ambrose Yenmora (11.8.05) Cr.No.284 of 2005
The State v Paul Nelson (2005) N2844
The State v Thomas Tukalia (22.2.06) N3026
The State v William Patangala (22.2.06) CR.NO.800 of 2004

Counsel:

S. Luben, for the State
J. M. Ainui, for the Accused

16th April, 2009

1. LENALIA, J: The prisoner is charged with one count of sexual touching an offence against s.229B (1) (a) (5) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

Facts and relationship

2. The brief facts to which the prisoner pleaded guilty to are as follows. The victim in this case Roselyn Jack was aged 14 at the date of the offence. She is related to the prisoner as an uncle. Roselyn is the daughter of the prisoner’s wife’s uncle. The prisoner and his wife adopted her when she was 4 years old. They have raised and maintained her since adoption. Rose Jack, the wife of the prisoner says in the pre-sentence report that, the victim is her uncle’s daughter.

3. On Sunday 23rd March 2008, the prisoner’s wife and their two natural children went to Church leaving the victim and the prisoner alone in the house. After they had gone, the victim picked up her dirty clothes and proceeded to the creek to wash them. She returned and after drying the clothes, the prisoner sent her to collect some eggs from their chicken farm to prepare for their meal. She decided to fetch her girl friend to collect eggs but when she went to her friends’ house, she found her friend was also busy drying out her laundry. She assisted her friend and then they came to the victim’s guardians’ block. Her friend’s parents’ block is next to the one owned by the prisoner.

4. When the prisoner saw the victim and her friend, he sent Roselyn to look for bananas if any were ready, she should harvest them and bring them home. The victim went away to look for bananas. Following that, the prisoner followed her track and when he caught up with her, he remove the knife from her hands, removed the victim’s skirt then the panties. She cried and the prisoner threatened to cut her neck off if she continued to cry.

5. The victim said in her statement that, the prisoner put her on his lap and he started to rub his penis around the vaginal lips and the anus. She continued to cry. The prisoner revealed in the record of interview that when he wanted to ejaculate he removed his penis and ejaculated on the ground.

Addresses

6. After taking the prisoner’s plea, the court administered allocutus to the prisoner. He said he is a Christian and he is very sorry for committing this offence. He said what he did has caused problems between his family and the family and relatives of the victim. He further said, after the offence was committed, the relatives of the victim came to his block and destroyed properties and one of them attempted to rape his wife. A week before the plea was taken, some youths believed to be from around the area where the victim’s relatives have a block came to his property and threatened him and his family. He asked the court to exercise leniency on him on sentence. He even said, one of them tried to rape his wife.

Defence address on sentence

7. Mr. Potoura of counsel for the prisoner submitted the following mitigations for the court to consider on sentence:

- the prisoner’s guilty plea,

- his previous good character,

- expression of remorse and

- the threats given to the prisoner and his family.

8. Counsel submitted that, the court should consider the nature of the offence and then decide on what should be the appropriate penalty. The maximum penalty for this offence is 12 years. The defence submits that, the maximum punishment should be reserved for the worst type case only. He cited some cases which I think appropriately state the law on sexual touching. They include cases of State v Kiddie Sorari (2004) N2553, The State v Ambrose Yenmora (11 August 2005) Cr.No.284 of 2005, The State v Paul Nelson (25 May 2005) N2844, The State v Thomas Tukaliu (2006) N 1030 and a number of other case. Counsel asked that the court should consider the pre-sentence reports and sentence the prisoner accordingly. In fact there are two pre-sentence reports, the later one a supplementary report.

Prosecution address on sentence

9. Ms. Luben submitted on the seriousness of this offence saying it is aggravated by an existing relationship of trust, authority and dependency. Counsel asked the court to consider Subsection (5) of the Section charged which provides for the maximum penalty of 12 years because the prisoner breached the trust, authority and dependency. She asked the court to also consider the age difference between the prisoner and victim, the prevalence of this offence, the effect of the offence caused to the victim and her parents.

10. Counsel further submitted that, any penalty to be imposed should have the effect of protecting young children as well as to make aware to the public that, even an offence of mere sexual toughing without penetration is a serious offence.

Pre-Sentence Report

11. There are two pre-sentence reports containing the list of the number of people contacted by the Probation Officer. The first report filed and dated 24th March 2009 contains the prisoner’s wife’s concern about what the prisoner did to the victim. She says in that report that, she found it hard to believe what her husband did to their young sister. The wife is now concern that, the offence has created two problems.

12. First if the prisoner is sentence to a term of imprisonment, she fears she will be left alone to mind their two children and the welfare of the young victim is another concern. She is further concern that, the relatives of the victim have harassed her and the children. She fears, they will continue the trend as has been seen from the last couple of months since the offence was committed if the prisoner is sent to jail.

13. On the supplementary report, the victim was contacted and she shared her concern with the writer of the two reports. She gave an highlight of what the prisoner had done to her since 2005. She says the prisoner had engaged in similar indecent acts previously and she was always threatened not to tell the prisoner’s wife or other people. She said the usual activity involved the rubbing of the penis on her vagina and the anus and whenever, the prisoner reached orgasm, he would usually withdraw and ejaculate outside.

14. Those contacted include Mr. Alex Ganba & Mrs. Ruth Ganba and Paul Kentare. Ruth Ganba is the auntie of the victim who expressed grave concern over what happened to the girl in the care of the prisoner and herself. Alex Ganba expressed similar sentiments and condemned the prisoner’s conduct toward the victim. He said, he is of the view that if the court imposes a non-custodial sentence, the prisoner will be a threat to the community and particularly the victim who has since left school in fear due to psychological trauma caused to her.

15. Paul Kentare expresses concern over the victim’s future. Paul is a Welfare Officer attached to the Community Development Division in the Gazelle District. He says the victim does not now enjoy her life as she used to be. Paul confirms that the victim does not now attend school as she is totally withdrawn and she leaves in fear. He confirms the concern by the victim that, if the prisoner is not given a custodial sentence, he might be a threat to the victim.

Law

16. Section 229B (1) 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."

17. Then further down on aggravations, Subsection (5) states:

"(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".

18. Sexual abuse of 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".

19. The next aggravation is child with whom the prisoner committed this offence was at that time at the age of 14 years. The court finds from the facts of this case that there was an existing relationship of trust, authority and dependency between the offender and the victim. Under s.6A (2) (a) of the Act, the prisoner was an adoptive parent or guardian of the victim. On the present case, the aggravating circumstances of the existing relationship of trust, authority or dependency was pleaded in the indictment as required by s.528 (2) of the Criminal Code.

20. The sentencing trend by the National Court on sexual touching on the recent past has fluctuated from terms of imprisonment to wholly suspended sentences. I cite a few cases to illustrate that point. Your case may be similar to the case of The State v Thomas Tukaliu (22 February 2006) N3026. In that case, the prisoner pleaded guilty to two counts of sexual touching of a 10 year old victim with aggravations of an existing relationship of trust, authority and dependency. He had on previous occasions sexually touched the victim many times. He was sentenced to 5 years imprisonment. Three years were suspended with conditions. He only served 2 years.

21. In The State v Paul Nelson (25 May 2005) N2844, the 65 year old prisoner was sentenced to 3 years for a similar offence. Two years were suspended with conditions. There was no existing relationship of trust and dependency and it was an isolated incident.

22. In The State v William Patangala (22 February 2006) N3027, the prisoner pleaded guilty to one count of sexual touching aggravated by an existing relationship of trust authority and dependency. It was an isolated incident. He was sentenced to 4 years imprisonment with 3 years suspended on conditions. In The State v Kagewa Tenant (2005) N2941, the prisoner was charged with one count of sexual touching of the victim who was under the age of 12 years. The prisoner in that case attempted penetration a number of times. He was sentenced to 6 years imprisonment with 2 years suspended on conditions.

23. This court is very concerned about the level of sexual abuse cases in this Province. In 1995, Papua New Guinea ratified the United Nations Convention on all forms of discrimination and violence against women. As a nation, PNG has a regional and international commitment to address this very important issue. It is generally accepted that women and girls at young ages are the major victims of sexual violence. (See Hansard- National Parliament 11th October 2001 speech by Lady Kidu made in support of the Bill).

24. This case is aggravated by the existing relationship of trust, authority and dependency. Under s.229B (5) you could be sentenced to 12 years imprisonment because the prisoner breached that trust. I have considered the sentencing guidelines set down in the case of The State v Penias Moke (No.2) (26 August 2004) N2635. I have briefly referred to some of the factors mentioned in the above case.

25. A relevant consideration in your case is that, if the relationship of trust, authority and dependency is very close, like in your case, the more serious the case becomes and the higher the penalty should be. In your case, you told the investigating officer that the victim is the daughter of your wife’s uncle. Simply put, it means that the victim is very close to you and your wife by definition of s.6A (1) and (2) (a) – (c) which say:

"(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 ..."

26. The next aggravation is that there was a large age difference between you and the victim. At the time of the offence, you were 35 years while Roselyn Jack was at age 14. The case of The State v Mitige Neheya [1988-89] PNGLR 174 establishes that, age disparity is an aggravation and any penalty imposed should be reflected on sentence. (See also the State v Penias Moke (supra)).

27. This court has considered your guilty plea to this charge. I have considered your statement on allocutus. I have also considered your lawyer’s submission on mitigations and the prosecution’s reply on aggravations. I consider that your case is very serious because, you raised the victim from the time she was 4 years old until the date you sexually molested her. In many communities in PNG, the victim would be regarded as your daughter. This is why the law specifically defines the protection that must be accorded to victimized children like the victim in the present case.

28. You and your wife have raised the victim up since she was only 4 years. You had maintained her in school and the court will infer that you two have paid for her school fees all the years before the offence took place. You breached the trust reposed on you as a responsible father, and the law expects you to maintain the trust placed on you by whether your natural children or adopted ones like the victim.

29. I consider that a term of imprisonment must be imposed. The prisoner is sentenced to a term of 5 years imprisonment in hard labour. Two (2) years shall be suspended on the following conditions:

1. After serving three years, he shall enter into recognition to keep the peace for a period of two (2) years.

2. He shall pay compensation to the victim and her parents in an amount of K1, 000.00 cash and one life pig.

3. Such payment can be effected within the three (3) years when he is serving in prison if he has the money.

4. If compensation payment is not completed within the three years while he’s serving, he will complete the payment during the suspended portion of this order.

5. His bail money can be converted into part payment of such compensation order.

__________________________________________

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused.