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State v Farai [2017] PGNC 221; N6890 (1 August 2017)

N6890

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1934 of 2016

THE STATE

V

RUSSEL FARAI

Popondetta: Koeget, AJ
2017: 27^th July & 1^st August

CRIMINAL LAW-Indictable offence – Criminal Code Act IV 2A – sexual offences against child – section 229B – sexual touching – sentence on plea – child aged 11 years old – victim did not sustain any physical injuries – abuse of trust, authority and dependency – Discretionary powers of court under section 19 of the Criminal Code Act.

FACTS

On the night of 4^th June 2016, the victim, a 11 year old female was staying with her sister-in-law in her house. The accused was drunk when he arrived at the house where the victim was staying and he asked her to follow him to the toilet pit.

The victim refused but the accused insisted so she followed him in fear of being assaulted to a place near the toilet pit and he removed her clothes and rubbed his penis on the victim’s vagina. The victim’s uncle walked across that location and flashed torch and found the accused and the victim. The accused released the victim and the uncle escorted her to the family house.

Case Cited:

The State –v- Anderson Agalie (2016) N6717
The State –v- Leo Jimmy Tingina (2014) N6252
The State –v- Koma Moide Kaku (2016) N6411

Counsel:

L. Toke, for the State
E. Yavisa and C. Namono, for the Accused

1^st August, 2017

1. KOEGET AJ: INTRODUCTION: The accused is charged with one count of Sexual Touching pursuant to section 229A(i) (a) and (4) of the Criminal Code Act. The victim was aged eleven (11) years old when the offence was committed upon her.

ARRAIGNMENT

2. The accused pleaded guilty to the charge and so he was convicted accordingly.

ISSUE

3. The issue for the Court to decide is what is the appropriate sentence the Court should impose upon the prisoner?

LAW

“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 is guilty of a crime.

Penalty:

Subject to subsections (4) and (5), imprisonment for a term not exceeding seven years.

(4) if the child is under the age of 12 years, an offender under subsection (1) is guilty of a crime, and is liable to be imprisoned for a term not exceeding 12 years.”

ALLOCATUS

4. In allocutus, the prisoner said:

“I say sorry to the victim and her family. I also say sorry to my mother who raised me up after my father deserted the family when I was a small boy”.

PERSONAL PARTICULARS

5. The prisoner is 29 years of age and is married with two children. He resides at Niugini Compound in Popondetta.

6. The prisoner was employed as a security guard at HQH Supermarket at Popondetta for 4 years prior to the commission of the offence. He has been terminated from employment since taken into custody for the offence.

AGGRAVATING FACTORS

7. The offence was committed at night by a married man upon a young girl then aged 11 years. The prisoner was drunk when he committed the offence on the victim. The prisoner is the brother in-law of the victim so a position of trust, dependency and authority was abused when the offence was committed upon her.

MITIGATING FACTORS

8. The prisoner pleaded guilty to the charge and saved valuable time of the Court. In this case, the victim was not subjected to cross-examination in open court.

9. The prisoner has been in custody awaiting disposal of the case for one year and one month. The Defence counsel made reference in his submission to the previous case I dealt with in Kiunga, the case of The State –v- Anderson Angalie (2016) N6717, where a sentence of 4 years was imposed but suspended on conditions that the prisoner enters into recognisance and promise to keep peace and be of Good Behaviour Bond for four years. The defence counsel submitted that similar type of sentence should be imposed on the prisoner.

10. He further made reference to the case of The State –v- Koma Moide Kaku (2016) N6411 where a sentence of 4 years was imposed upon the prisoner. The period of 2 years was suspended and the prisoner is serving the balance at Daru Corrective Institute Services.

SENTENCE

11. The court has discretion under section 19 of the Criminal Code Act to impose a lesser sentence than the prescribed penalty in the section. So the discretionary powers of the Court are exercised under section 19 of the Criminal Code Act so the prisoner is sentenced to four years in hard labour. The pre-trial custodial period is deducted and he is to serve the balance of 2 years and 11 months at Biru Corrective Institutional Services.

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