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State v Elias [2020] PGNC 172; N8393 (18 March 2020)

N8393

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 602 OF 2019

THE STATE

V

JAMES ELIAS

Waigani: Koeget, J
2020: 18^th March.

CRIMINAL LAW- Indictable offence – Sexual Touching of a girl under the age of 16 years – section 299B (1) (a), (4) of the Criminal Code Act chapter 262 (as amended) – guilty plea – conviction and sentence on his own admission – Exercise of court’s discretionary powers under section 19 of the Code.

FACTS

On 10^th January 2019 between 3 o’clock and 4 o’clock in the afternoon, the complainant sat and waited at the entrance to the front gate of the Police Barracks at the Games Village for her sisters to return from the market. She sat next to the accused’s informal sector market table placed in front of the gate to the Police Barracks.

The accused told the complainant to move and sit on a stone under the tree next to his informal sector market table. She accepted the invitation so went and sat on a stone next to the accused’s market table. The complainant had her shorts and tops still on her body when the accused proceeded to touch her vagina. The complainant told the accused not to touch her vagina and he replied “Be quite or I will hit you”. The accused then gave her K5-00 and told her not to report it to her family members.

The accused was fifty-nine years of age when the offence was committed and the complainant aged ten years old.

The complainant told her father when she returned to the house resulting in the apprehension of the accused.

The State allege that the actions of the accused contravened section 229B (1) (a), (4) of the Criminal Code Act (as amended).

Cases Cited:

The State v Michael Anton CR No. 329 of 2016
The State v Felix Jim CR No. 1218 of 2013
State v Elias Umba CR No. 645 of 2015
State v Philip [2012] N4829
State v Paul Nelson (2005) N2844
State v Kagewa Tanang (2005) N2941
State v Thomas Tukaliu (2006) N3026
State v Warifa [2008] PGNC 32; N3308 (11 March 2009) CR No. 84

Counsel:

Ms S. Joseph/Ms L. Jack, for the State
Ms C. Koek, for the Accused

18^th March, 2020

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Sexual Touching of a female child under the age of sixteen years. The charge is brought pursuant to section 229B (1) (a), (4) of the Criminal Code (Sexual Offences Against children) Act chapter 262.

ISSUE

2. The accused pleaded guilty to the charge and was convicted accordingly. The issue for the court to determine is what is the appropriate sentence the court should impose upon him.

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 16 years, is guilty of a crime.
  

Penalty: subject to subsections 4 and 5, an imprisonment for a term not exceeding 7 years.

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

PERSONAL PARTICULARS

3. The prisoner is 60 years of age and is a bachelor. He is educated up to grade 8 at Malala High school in the Bogia district of the Madang Province.

AGGRAVITING FACTORS

4. The offence was planned and executed. The age gap between the prisoner and the complainant (victim) is 49 years.

MITIGATING FACTORS

5. The prisoner cooperated well with the police and admitted commission of the offence in the record of interview. He pleaded guilty to the charge and saved valuable time of the Court.

6. The victim suffered no physical harm and she is well and resides with her family at the Police Barracks. The prisoner acted alone and no weapons were used in the commission of the offence.

SENTENCE

7. The prisoner planned the commission of the offence when he placed his informal sector market table at the entrance to the Police Barracks located at Games Village at Waigani. The prisoner induced the victim to leave her seat and move and sit on a stone next to his informal sector market.

8. When the victim moved and sat on the stone next to the prisoner, he proceeded to touch her vagina with his fingers. The victim protested and the prisoner threaten to assault her and offered a payment of K5-00 so that she does not tell her family members.

9. The prisoner admitted on allocatus that he was convicted by the Waigani National Court in 2001 for robbery. He was sentenced to ten years in hard labour. The period of four years was suspended and he served the balance of six years at Bomana Goal.

10. The current sentencing trend on sentences for the offence of Sexual Touching is imprisonment term between two years and seven years as reflected in the National Court decisions listed below:-

(i) The State –v- Michael Anton CR No. 329 of 2016

The offender aged 14 pleaded guilty to sexually touching a 3-year old’s vagina with his penis. He was sentenced to 4 years imprisonment.

(ii) The State –v- Felix Jim CR No. 1218 of 2013

The offender took the victim into her aunt’s kitchen house and placed her on the bed and touched her vagina with his fingers and tongue. After that he poured hot water on the victim and gave her K1 coin and she went out of the house. The victim told her aunt what the offender did to her. Medical examination revealed that the victim sustained lacerations to her vulva. The victim was 5 years old at the time. The offender was sentenced to 6 years imprisonment. None of his sentence was suspended.

(iii) State –v- Elias Umba CR No. 645 of 2015

The offender a 30-year old man pleaded guilty to sexually touching the victim’s vagina with his finger. The victim was 5 years old. He was sentenced to 3 years in hard labour that was wholly suspended.

(iv) State –v- Philip [2012] N4829

The offender, a 16-year old boy pulled the victim then 6 years old onto a bed and covered both up with blanket and sexually touched the victim’s vagina with his finger. He pleaded guilty and was sentenced to 5 years. Medical report confirmed that the victim’s hymen was perforated. None of the sentence was suspended.

(v) State –v- Paul Nelson (2005) N2844

A 65-year old offender pleaded guilty to sexually touching a 12-year old victim’s vagina with his fingers. He was sentenced to 3 years.

(vi) State –v- Kagewa Tanang (2005) N2941

The offender pleaded guilty to touching the victim’s vagina with his fingers and rubbing his penis on her vagina and attempted to penetrate her. The victim was 10 year old girl. The offender was 41years old. He was sentenced to 6 years.

(vii) State –v- Thomas Tukaliu (2006) N3026

The offender pleaded guilty to two counts of sexual touching of a 10 year old girl’s vagina with his fingers. He was sentenced to 5 years.

(viii) State –v- Warifa [2008] PGNC 32; N3308 (11 March 2009) CR No. 84

The offender pleaded guilty to one count of sexual touching. He rubbed his penis against the victim’s vagina causing some minor bruises. The victim was 6 years old. The offender was sentenced to 7 years.

11. In the instant case, the prisoner is an old man with one prior conviction for a very serious offence and he served the sentence at Bomana Goal. He has not learnt his lesson. Although, the victim did not sustain physical injury, she lives in fear of persons like the prisoner. The prisoner cannot be trusted when with young children like the victim.

12. The prisoner is sentenced to seven years in hard labour. The pre-trial custodial period of one year and five months are ordered to be deducted and the balance of five years and seven months are to be served at Beon Goal in Madang Province.

ORDER

(1) The prisoner is to be transferred from Bomana Goal to Beon Goal to serve his imprisonment term.

Accordingly ordered.

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