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State v Giroro [2009] PGNC 185; N3812 (29 October 2009)

N3812

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No 306 OF 2008

THE STATE

V

REUBEN GIRORO

Waigani: Paliau, AJ
2009: June, 15th, 16th, 17th, 19th, 25th &
October 29th

CRIMINAL LAW – Sentence – Sexual Penetration and Sexual Touching – Charges of – Not Guilty Plea – Criminal Code ss.229A (1)(2) and 229B (1)(4).

CRIMINAL LAW – Sentence – Cumulative sentence to be served – Good pre-sentence report – Suffering physical health – Suspended sentence.

Cases cited:

The following cases are cited in the Judgment.

The State v. Timothy Bipi (2009) N3608 (23rd April 2009)
Public Prosecutor v. Kerua [1985] PNGLR 85
Mase v. The State [1991] PNGLR 88
Public Prosecutor v. Don Hale (1998) SC564
Gima & Arnold v. The State (2003) SC730
Public Prosecutor v. Tardrew [1986] PNGLR 91

Counsels:

Mr. J. Wohuinangu, for the State
Mr. J. Mesa, for the Accused

29th October, 2009

1. PALIAU, AJ: You pleaded not guilty to one count of sexual penetration and one count of sexual touching pursuant to Section 229A (1)(2) and 229B (1)(4) of the Criminal Code.

2. Because of your plea of not guilty, the matter proceeded to trial whereupon you were found guilty of both counts and convicted.

3. And this is the decision on sentence as to the appropriate penalty to be imposed on you.

THE FACTS

4. The facts arising out of the charges are as follows. In the year 2007, you lived with the victim and her father at their North Waigani home. You lived with them and attended the Papua New Guinea Institute of Public Administration (PNGIPA).

5. Whilst living with them, you sexually penetrated and sexually touched the victim by inserting your fingers into her vagina and fondling with her breasts on 4th July, 2007 and on a date unknown between 1st May and 31st July 2007, respectively.

6. At all material times, the victim was under the age of 12 years. She was 8 years of age. And you had an existing relationship of trust, authority and dependency with her.

Antecedent

7. You have no prior convictions. This is your first time to commit an offence.

ALLOCUTUS

8. You were given an opportunity to say something as it is your right before an appropriate penalty is imposed on you and you said the following things which you want the Court to take into consideration: -

- You apologized and said sorry to the Court.

- You said sorry to your brother Robert Abani and his family and the victim.

- You accepted the Court’s decision to find you guilty.

- You asked the Court to have mercy on you.

- This is the first time for you to commit an offence. You have not been in trouble with the law until now.

- You are a family man with 4 children.

- You are the only one in your family.

- Your parents were deceased when you were a small child.

- Your wife is a housewife and you are the only one employed.

- You have served as a Correctional Officer for 17 years with no disciplinary and criminal record.

- You said you have suffered from stomach aches since 1998.

- As you have dealt with prisoners for 17 years, you feel your life will be at risk if put in prison with them.

FACTORS FOR AND AGAINST YOU

Factors in your favour

9. Apart from what you stated in allocutus, in your favour, your lawyer submitted that I must take into account as well these factors. You are a first time offender and you have expressed remorse.

10. You have served the Correctional Services for 17 years with an unblemished record. You have a good standing in your community.

11. Your cousin spoke highly of you in a character reference that was produced by him as part of the pre-sentence report that was compiled on your behalf.

12. Your lawyer further submitted that you have suffered from a chronic stomachache for the past 10 years as per the attached medical report and you require constant medical attention and medication. You are faced with a life threatening medical condition. Your incarceration will make matters worse for you.

13. Your lawyer also argued that a pre-sentence report that was ordered to be compiled on your behalf spoke highly of you as a law abiding citizen in your work place and your community.

14. Finally, your lawyer submitted that a sentence of between 8 to 10 years is appropriate but partially suspended considering the mitigating factors that outweigh the factors against you.

Factors against you

15. Factors against you are these. Lawyer for the State submitted that you breached the trust, authority and dependency that you were duty bound to uphold, as the victim’s father is your cousin.

16. There is a big difference in age between you and the victim – 35 years old and 8 years respectively, a difference of 27 years.

17. The fact that you pleaded not guilty has caused the State the expense of running a trial.

18. You have not paid any compensation to the victim and no reconciliation has been made between you and your cousin.

19. Sexual assaults committed against young children are increasing at an alarming rate and this calls for deterrent sentence to be imposed.

20. The State lawyer further submitted that for the offence of sexual penetration under s.229A (1)(2), the starting point of 15 years is applicable. And for the sexual touching under s.229B (1)(4), the starting point is 6 years. And taking into account the totality principle, the sentences should be served cumulatively.

PRE-SENTENCE REPORT

21. Before the above submissions were made by counsels on appropriate punishment for you, your lawyer applied for a pre-sentence report to be compiled on your behalf. I made an order to that effect. I have since received that report.

22. The report amongst other good things said in your favour, provided an assessment of you as a well committed Christian and is friendly to other people and the community. You are not a risk or a danger to other individuals and the community. And you are a suitable candidate for probation supervision and recommends a non-custodial sentence to be imposed because of the following factors: -

(1) Your superiors speak highly of you and recommend a non-custodial sentence as your security will be at risk.

(2) Your family consisting of your wife and 4 children will suffer as there will be no one to look after them for the day to day needs and in particular for payment of school fees.

(3) You are a sick patient and a non-custodial sentence will assist you to seek better medical assistance.

(4) You are willing to pay compensation to the victim and mend the relationship between you and your cousin through reconciliation.

THE LAW

23. Section 229A(2) of the Criminal Code states that a person who sexually penetrates a child under the age of 12 years is guilty of crime and is liable subject to Section 19 to imprisonment for life.

24. And Section 229B (4) provides that a person who, for sexual purposes – touches, with any part of his or her body, the sexual parts of a child under the age of 12 years is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

APPROPRIATE PENALTY

25. And so maximum penalty under Section 229A (1) and (2) is life imprisonment and Section 229B (1)(a) and (4) is 12 years. But under the old law, the maximum penalty was 5 years. Therefore the maximum penalty is 5 years in the present case The State v. Timothy Bipi (2009) N3608 (23rd April 2009).

26. To arrive at an appropriate punishment for you, I must consider the factors for and against you and the recommendations in the pre-sentence report together with the sentences that have been imposed for equivalent offences.

27. For count 1, sexual penetration, sentences that have been imposed ranges from 4 years to 17 years. For your case I will impose 5 years imprisonment.

28. For count 2, sexual touching, sentences that have been imposed ranges from 4 years to 7 years and bearing in mind the maximum in this case is 5 years, I will impose a sentence of 2 years imprisonment.

29. Having determined the notional penalty, the next matter to be considered is should the sentences be served concurrently or cumulatively. It is trite law that if two or more offences are committed in the course of a single transaction all sentences should be served concurrently, unless there are different victims; Public Prosecutor v. Kerua [1985] PNGLR 85; Mase v. The State [1991] PNGLR 88.

30. In your case, there were two different incidents but the same victim. The sentences therefore should be served cumulatively. The total sentence is therefore 7 years.

31. The above total sentence is however subject to the totality principle which stipulates that the total sentence that the offender is to serve must be just and appropriate. It should not be manifestly excessive and crushing on you.

32. You are 35 years old. The victim and her father want to see you punished. Taking into account aLl the circumstances of your case, I do not view 7 years as excessive.

33. I will not deduct any pre-sentence period in custody because you appeared from bail.

34. Another matter to be considered is whether the sentence is to be suspended. In the pre-sentence report it is strongly recommended that a non-custodial sentence be imposed as you are considered a good candidate for probation supervision. That you are not a danger to individuals or other people in the community.

35. In Public Prosecutor v. Don Hale (1998) SC 564, the Supreme Court considered that before a trial Judge considers to impose a suspended sentence, he must order a pre-sentence report or any report from the community in the supervision of the suspended sentence (See also Section 13 of the Probation Act and Gima & Arnold v. The State (2003) SC 730).

36. In Public Prosecutor v. Tardrew [1986] PNGLR 91, the Supreme Court considered certain principles in relation to suspension of a sentence. And they put them in three categories:

(1) Where suspension is regarded as personal deterrence, reformation or rehabilitation.

(2) Where suspension will promote repayment of stolen money or goods.

(3) Where custodial sentence would cause excessive suffering to the prisoner, for example because of his bad physical or mental health.

37. As per the medical report you are suffering from chronic stomach-ache which causes you to be unconscious. You are willing to make peace and pay compensation to the victim and your cousin.

38. Taking into account the recommendations of the pre-sentence report and the medical report, I will wholly suspend the 7 years imprisonment term and place you on probation on the following conditions;

(1) Must within 7 days report to the Probation Officer, Mr. Samuel P Yaoeya, in the National Capital District;

(2) Must perform at least 5 hours of unpaid community work per week for a period of 6 months, in accordance with a program organized and supervised by the Probation Officer, Mr. Samuel P Yaoeya;

(3) Must attend church every Sunday for service and worship and assist Church in its community activities;

(4) Must keep peace and be of good behaviour for a period of 2 years;

(5) Must keep peace and pay compensation to the victim and the victim’s father within 6 months;

(6) Conditions 2 to 5 will also be supervised by the Probation Officer, Mr. Samuel P Yaoeya.

(7) If you breach anyone or more of the above conditions, you shall be brought to the National Court to show cause why you should not be re-detained in custody to serve the rest of the sentence.

39. Your bail moneys shall be refunded forthwith upon presentation of receipt.

___________________________________________________

Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused