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State v Archie [2009] PGNC 118; N3727 (18 August 2009)

N3727

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 577 0F 2007

THE STATE

V

STEVEN ARCHIE

Buka: Cannings J
2009: 12, 14, 18 August

SENTENCE

CRIMINAL LAW – sentence– sexual touching of a child under the age of 16 years, Criminal Code, Section 229B(1)(a) – male offender aged 18 years at time of offences, female victim, aged 13 years – guilty plea.

A man pleaded guilty to sexually touching a 13-year-old girl by putting his penis against her vagina. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for this offence (which carries a maximum penalty, given the age of the child, of 7 years imprisonment) is 4 years imprisonment.

(2) Mitigating factors: no weapon or aggravated violence used against the victim; no physical injury to the victim; moderate age gap between the offender and the victim; compensation has been paid and there has been reconciliation between the offender and the victim; the offender has caused no further trouble; he pleaded guilty; he is a first-time offender.

(3) Aggravating factors are: the offender was attempting penetration and was interrupted by a third party (the victim’s mother).

(4) A sentence of three years was imposed. The pre-sentence period in custody was deducted and three years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v A Juvenile, "IO" (2005) CR No 1166 of 2004
The State v Kagewa Tanang (2005) N2941
The State v Paul Nelson (2005) N2844
The State v Thomas Tukaliu (2006) N3026
The State v Timothy Bipi (2009) N3608
The State v William Patangala (2006) N3027

SENTENCE

This was a judgment on sentence for sexual touching of a child under the age of 16 years.

Counsel

F Popeu, for the State
P Kaluwin, for the offender

18 August, 2009

1. CANNINGS J: This is the sentence for a 21-year-old Petats Island man, Steven Archie, who has pleaded guilty to one count of sexual touching of a child under the age of 16 years, a 13-year-old girl. The offence was committed between 6.00 and 7.00 pm on 20 January 2007 at Petats Island. The victim had been sent by her mother to sell tapiok. As she was returning home the offender was waiting for her on the side of the road, behind some flowers. He grabbed her, pulled her off the road, removed her clothes and put his penis against her vagina and tried to penetrate her. The victim’s mother came along, looking for her, and interrupted the offender.

2. A conviction has been entered under Section 229B(1)(a) of the Criminal Code.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court. He said:

I say sorry for what I have done. The victim agreed to what happened. After the incident the two families reconciled. I ask the court to put me on probation.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard it is to be noted that the offender indicated in his allocutus that the victim consented. However, this is directly contrary to the victim’s witness statement and I do not regard it as a mitigating factor. There were no early admissions to the police.

PRE-SENTENCE REPORT

6. Steven Archie is 21 years old. He resides in his village on Petats Island with his parents and three sisters. Family relationships are stable. He is single and has no plans to marry in the near future. He survives financially through the sale of copra. He has a grade 6 education. He was employed as a shop assistant for one year but gave up the job because of the low pay. He is a member of the United Church. He has the strong support of his father, the village chief, who says that plans are well advanced for a formal reconciliation between the two families. This proposal is supported by the victim’s father who says that there has already been one reconciliation early this year. The families want to see the matter resolved in the village.

7. The report concludes that he is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Kaluwin submitted that the court should put considerable weight on the guilty plea and the fact that there was no aggravated physical violence. Also the offender was a very young man when he committed the offence and should have learned his lesson by now. He has been in custody for one year and no point would be served in hiding him away in custody. A suspended sentence of three to five years would be sufficient.

SUBMISSIONS BY THE STATE

9. Mr Popeu acknowledged that the guilty plea and the offender’s lack of prior convictions were mitigating factors but stressed that this was a prevalent offence in Bougainville and a deterrent penalty is required. A custodial sentence of three years is required, he submitted.

DECISION MAKING PROCESS

10. To determine the appropriate penalty I will adopt the following decision making process:

- step 1: what is the maximum penalty?

- step 2: what is a proper starting point?

- step 3: what sentences have been imposed for equivalent offences?

- step 4: what is the head sentence?

- step 5: should the pre-sentence period in custody be deducted?

- step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

11. The maximum penalty is seven years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. I have been unable to locate a suitable precedent, so I will use the mid-point of four years as the starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

13. Sentences have tended to fall within the range of three to six years imprisonment. Examples are shown in table 1.

TABLE 1: RECENT SENTENCES FOR SEXUAL TOUCHING

STEP 4: WHAT IS THE HEAD SENTENCE?

14. The head sentence will reflect the following mitigating and aggravating factors.

Mitigating factors:

- no weapon or aggravated violence used against the victim;

- no physical injury to the victim;

- moderate age gap between the offender and the victim;

- compensation has been paid and there has been reconciliation between the offender and the victim;

- the offender has caused no further trouble;

- he pleaded guilty;

- he is a first-time offender;

- pre-sentence report good.

Aggravating factors are:

the offender was attempting penetration and was interrupted by a third party (the victim’s mother).

15. There are many more mitigating factors than aggravating factors so a sentence below the starting point (four years) is warranted. This case is less serious than a number of the cases referred to earlier. I agree with the prosecutor’s submission that a sentence of three years is warranted. I fix a head sentence of three years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one year.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

17. The pre-sentence report is favourable and warrants a suspended sentence, especially as the victim’s father is willing to have the matter sorted out in the village. The offender is still a young person and I agree with Mr Kaluwin’s submission that in the special circumstances of this case it would not be a good idea to send the prisoner away to prison. I will suspend the rest of the sentence on these conditions.

(a) must within two months after release from custody participate in a reconciliation ceremony in the terms proposed in the pre-sentence report, supervised by the local Chiefs and witnessed by the Senior Probation Officer for Bougainville;

(b) must reside at Petats Island or some other place nominated by the National Court and nowhere else except with the written approval of the National Court;

(c) must not leave Bougainville without the written approval of the National Court;

(d) must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(e) must attend the United Church every week for service and worship and assist the church in its community activities;

(f) must report to the senior Probation Officer at Buka every three months;

(g) must not consume alcohol or drugs;

(h) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim’s family;

(i) must have a satisfactory probation report submitted to the National Court Registry at Buka every three months after the date of sentence;

(j) must attend the National Court as and when required to monitor compliance with the conditions of the suspended sentence;

(k) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

18. Steven Archie, having been convicted of one count of sexual touching of a child under the age of 16 years contrary to Section 229B(1)(a) of the Criminal Code, is sentenced as follows:

Sentenced accordingly.

__________________________

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