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State v Tap [2015] PGNC 214; N6118 (12 November 2015)

N6118

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1215 OF 2015

BETWEEN:

THE STATE

AND

BOBBY TAP

Minj & Mount Hagen: Makail, J
2015: 19th October & 12th November

CRIMINAL LAW – Sentence – Indecent act– Inserting of finger into victim's vagina – Victim child under the age of 12 years – Aggravating factors – Victim aged 3 years – Prevalence of offence – Mitigating factors – Guilty plea – First offender – Remorseful – Criminal Code as amended– Sections 19 & 229C(1)&(2).

Cases cited:

The State v. Joe Tomigita Mailai (2011) N4649
The State v. Thomas Tukaliu (2006) N3026
The State v. William Pangatana (2004) N3027

Counsel:

Mr. P. Tendui, for the State
Mr. P. Moses & Mr. J Morog, for the Offender

SENTENCE

12th November, 2015

1. MAKAIL, J: The offender pleaded guilty to a charge of indecent act under Section 229C (1) & (2) of the Criminal Code as amended.

2. The facts on which he pleaded guilty and was convicted are these: Between 11:00 am and 12 midday on 23rd April 2015 the offender was at Kunduwil village in Nongugol, Jiwaka Province. The victim, a 3 year old girl was with her brother at their house in the same village. Their mother had gone to the garden.

3. The offender went to the house, cut some sugar-cane and gave to them to have. He then took the victim into the house and removed her clothes. He then indecently assaulted her on her private part by inserting his finger into her vagina. After that, he put on her clothes and took her out of the house. The victim's mother having returned from the garden saw them coming out of the house and the victim crying. She suspected that something was wrong and reported it to the village elders. Later she took the victim to Miunde Heath Centre where she was examined. The examination confirmed the indecent act.

4. The offence carries a maximum penalty of a term of seven years imprisonment because the victim is a child under the age of 12 years. The maximum penalty is usually reserved for the worst case. Under Section 19 of the Criminal Code, the Court has discretion to impose a lesser sentence.

5. On his allocutus, the offender repeatedly apologised to the Court, the victim and her parents. He accepted full responsibility for his actions and asked for leniency. He also said that he is a student and asked the Court to take it into account when considering an appropriate sentence for him.

6. Counsel for the State Mr. Tengdui tendered the Antecedent Report and informed the Court that the offender has no prior convictions. His counsel Mr Moses applied for a pre-sentence report to verify his instructions that the offender is a youth and that he has paid compensation to the victim.

7. The State did not object to the application and it was granted. The Court adjourned the matter to 12th November 2015 at Mt Hagen National Court to give time to the Probation Officer to furnish the report and for submissions on sentence. On this date, the Court received submissions from the parties. A copy of the pre-sentence report was also provided.

8. It has been considered. It supports the offender's claim that he is a first offender and admission of the offence. Further, it confirms that the offender does not have financial means to make restitution but with the support of his step-brother, he is able to give K1, 000.00 cash and a live pig worth K1,000.00 to the victim and her parents. The view's of victim's father is that the victim will be traumatised for the rest of her life by the indecent act. For this reason, the offender must pay K5, 000.00 cash and give 5 live pigs. Otherwise, a custodial sentence must be imposed.

9. The submissions by Mr. Morog in place of Mr. Moses at this hearing are noted. In mitigation, I note the offender pleaded guilty, has no prior convictions, first offender, co-operated with the police during investigation, remorseful and has been in custody for 7 months.

10. In addition, he is a young offender of 18 years, a student and unemployed. No serious injuries to the victim. It was an isolated case and a spur of the moment act. Further, with the support of his step-brother, he is prepared to give K1,000.00 and 1 live pig worth K1,000.00 to the victim and her parents.

11. Mr. Morog relied on the case of The State v. Joe Tomigita Mailai (2011) N4649 and submitted a sentence of a term of 4 years imprisonment would be appropriate and part of it be suspended with conditions such as payment of compensation which should be less than K5,000.00.

12. As to the aggravating factors, I note Mr. Tengdui's submission who submitted that the offence is aggravated by the victim being under the age of 12 year (at the time of the offence the victim was 3 years old), the offender is 18 years old, an age gap of 16 years, young victim, although no physical injuries, the victim will leave the emotional scar of being sexually touched and prevalence of the offence. Finally, the offender has not shown any real tangible remorse in terms of compensating the victim.

13. Counsel further submitted that there are not many reported cases of indecent act to give the Court guidance as to the appropriate sentence to be imposed in this case but cited two sexual touching cases under Section 229B of the Criminal Code as amended as a guide. These are The State v. William Pangatana (2004) N3027 and The State v. Thomas Tukaliu (2006) N3026 where the Court had imposed a term of 4 and 5 years imprisonment respectively. Part of the sentence in each case was suspended with condition that the offender to pay compensation to the victim.

14. Mr. Tengdui submitted a custodial sentence of 4 years fits the offence, in light of the circumstances in which it was committed. He did not seriously oppose a suspended sentence but submitted that the question of suspension is a matter for the Court to consider and decide.

15. I agree with Mr Tendgui that there are not many reported cases on the offence under consideration. However, I prefer to rely on the case cited by Mr. Morog, that is, The State v. Joe Tomigita Mailai (supra) because it was decided in relation to the offence under consideration. In that case, the offender pleaded guilty to one count of indecent act. The offender rubbed his penis against the victim's vagina. The victim was 11 years old. The Court imposed a term of 4 years imprisonment. One (1) year and 6 months was deducted for time spent in pre-trial custody and the offender had to serve 2 years and 6 months in prison. No part of the sentence was suspended. The Court found that it was serious case of indecent dealing because it bordered on sexual touching and it was a case of adult of 38 years old luring a victim female of 11 years into the bush near a garden and committing the indecent act. According to the Court, the offender's offer of compensation made no difference.

16. In this case I am of the view that it is not as serious as The State v. Joe Tomigita Mailai case (supra) because the offender is young. It was a one of incident. The offender has co-operated with the police during investigation by admitting to the commission of the offence as seen from the record of interview up until the date of trial (plea). He is prepared to pay compensation. The victim's parents are also willing to accept compensation. The question is the amount. That can be sorted out.

17. But I do not believe that a wholly suspended sentence is appropriate. The Court must come down hard on sex offenders. This was a case where the victim is very young. The Court must protect young children from such people. A deterrent sentence must be the only way to deter people like the offender here from committing crimes of this nature against our children. Our children must be free to grow up and walk around in our communities without being afraid of being sexually harassed or subjected to such immoral acts. So a custodial sentence must be imposed. However, given the concession made by the victim's family and the preparedness of the offender to pay compensation, I will suspend part of the sentence and it will be a condition of the suspended sentence that the offender pays compensation in cash and kind to the victim.

18. The order will be; the offender is sentenced to a term of 3 years imprisonment in hard labour. Time spent in pre-trial custody of 6 months and 19 days shall be deducted, leaving a balance of 2 years, 5 months and 11 days to be served. From this, 1 year is suspended and the offender will serve 1 year, 5 months and 11 days in prison. The conditions of the part of the sentence that is suspended shall be as follows:

1. The offender shall pay cash of K2,000.00 and one live pig worth K1,000.00 to the victim and her parents within six months of this order and evidence of the payment shall be presented to the Probation Officer for reporting purposes.

2. The offender shall be of good behaviour for the duration of the suspended sentence of 1 year.

3. These conditions will be reviewed by the Court in six months time and the Probation Officer is directed to prepare a report to present to the Court on that date. This date is Thursday 12th May 2016 at 9:30 am at Mt Hagen National Court. The offender shall also appear on this date and time.

Sentenced accordingly.
_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender