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State v Fenam [2018] PGNC 594; N8010 (10 May 2018)

N8010

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1513 OF 2017

THE STATE

V

TEBI FENAM

Tabubil: Koeget, J
2018: 06^th, 10^th May

CRIMINAL LAW- Sentence – guilty plea to sexual Touching of a girl under the age of 12 years – section 229B (1)(a), (4) of the Criminal Code Act (as amended) – age gap between the prisoner and the victim is 36 years so a deterrent sentence is to be imposed.

FACT

On Thursday 21^st September, 2017 between 10 am and 11 am, the accused Tebi Fenam was inside the kitchen of his house at Finalbin village, Tabubil, in the Western Province. The Complainant child known as M.A., then nine years of age went into the accused’s kitchen to get a plate. She had known the accused and family as her family home is few meters across the road.

The accused told her to stay with him until her mother returns from town. The accused proceeded to put the Complainant on the floor in the kitchen and he removed the trousers she wore and rubbed his erected penis on her vagina.

The accused’s wife went into the kitchen and saw the husband rubbing his penis on the victim’s vagina. The accused put his clothes on and left the scene living the Complainant child crying in the kitchen.

Cases Cited:

Nil

Counsel:

Ms M. Tamate, for the State
Mr E. Sasingian, for the accused

10^th May, 2018

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Sexual Touching of a girl under the age of twelve years. The charge is brought pursuant to section 229 B(1)(a), (4) of the Criminal Code Act (as amended).

ISSUE

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

3. The issue for the court to determine is what is the appropriate sentence the court should impose upon the prisoner.

LAW

“Section 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 6 years;
  

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

PERSONAL PARTICULARS

4. The prisoner is 45 years of age and is married with children. He resides at Finalbin village, Tabubil in the Western Province. He lived in the village as a subsistence gardener. He attended Finalbin Primary school and completed grade 6 and remained in the village as a subsistence gardener.

AGGRAVATING FACTORS

5. The age gap between the prisoner and the victim is 36 years. The victim had known the prisoner and family for more than five years. She experienced trauma and is now living in fear of men.

6. Such offence is prevalent in the country. The Complainant child does not trust the prisoner anymore. His actions were indecent and disgraceful.

MITIGATING FACTORS

7. The prisoner is a first time offender. He cooperated well with the police and saved valuable time of the Court when he pleaded guilty to the charge.

8. The victim suffered no permanent physical injuries and she is well. No weapon was used in the commission of the offence.

SENTENCE

9. The victim and the prisoner were neighbours so she was not afraid when told to stay with him. But the prisoner abused the trust placed upon him and his actions are best described as indecent and disgraceful.

10. The age difference between the prisoner and the victim is large and so a deterrent sentence ought to be imposed upon him to show that such conducts of adults are not tolerated by the court.

11. The maximum sentence for such offence is imprisonment of 12 years but in the exercise of court’s discretionary powers under section19 of the Criminal Code Act, the prisoner will be sentenced to a lesser term. The prisoner is sentenced to 5 years in hard labour.

12. The pre-trial custodial period of 4 months is ordered to be deducted and he is to serve the balance of 4 years and 8 months at Ningerum Corrective Institutional Services.

13. The prisoner’s bail money of K500.00 is to be refunded to him.

Sentenced accordingly
_________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused