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State v Pitpaia [2024] PGNC 140; N10796 (8 May 2024)

N10796

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 453 OF 2024

THE STATE

V

KARL PITPAIA

Kokopo: Miviri J
2024: 06^th & 08^th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 229B (1) (a) CCA sexual Touching under 16 years old – 8 years old victim – Grand Daughter – prisoner 64 years old –sexual Touching – Early guilty plea – victim saved – prevalent offence – First Offender – balance protection of child –Minimum Penalty 7 years IHL – Minus time on Remand – Balance Suspended.

Facts

Prisoner was the grand father of the young girl aged 8 years old. He pushed his fingers into her vagina a number of times when she was alone with him at his request to climb his betel nut for him.

Held
Guilty plea.
64-year-old grand father
First offender
Serious abuse of trust authority and dependency.
Plea to solve matter in village traditionally.
Protection of children
7 years IHL minus time on remand
Balance suspended.

Cases Cited:
Golu v The State [1979] PGSC 9; [1979] PNGLR 653
John Elipa Kalabus v The State [1988] PGNC 120; N604
Yalibakut v State [2006] PGSC 27; SC890
Kumbamong v State [2008] PGSC 51; SC1017
State v Kilau [2006] PGNC 125; N3107
State v Jack Wanapa [2024] N10733
Public Prosecutor v Hale [1998] PGSC 26; SC564
Tardrew, Public Prosecutor v [1986] PNGLR 91
State v Dala [2006] PGNC 110; CR 311 of 2005 (19 December 2006)
State v Elias [2020] PGNC 172; N8393
State v Tulemanil [2008] PGNC 233; N3685

Counsel:
J. Sausoruo & L. Rangan, for the State
J. Huekwahin, for the Defendant

SENTENCE

08^th May 2024

1. MIVIRI J: This is the sentence of a 64-year-old grandfather who pleaded guilty to touching the vagina of an 8-year-old granddaughter.
   
2. Karl Pitpaia is 64 years old. His granddaughter Judith Talele is 8 years old. She is the daughter of his nephew. He told her to climb his betel nut at his cocoa garden. In the process he removed her trousers and touched her vagina with his finger. The matter was reported to Police he was apprehended and charged with the offence under section 229B (1) of the Criminal Code Act.
   
3. It is in the following terms: -

“(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; or
(b) compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person’s own body,

is guilty of a crime.

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

(2) For the purposes of this section, “sexual parts” including the genital are, groin, buttocks or breast of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.

(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 imprisonment for a term not exceeding 12 years.

(5) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime and is liable to imprisonment for a term not exceeding 12 years.”

4. The minimum sentence that can be imposed upon the prisoner for the crime is imprisonment for a term not exceeding seven (7) years. If the child is under the age of 12 years old, he is liable to be imprisoned to a term not exceeding 12 years. She is 8 years old and there is existing relationship of trust authority and dependency in that She is his granddaughter, being the child of his nephew. The touching of her vagina with his finger was for no other purposes other than sexual. He is liable to be imprisoned for seven (7) years. It is a minimum penalty offence. Coupled with the other subsections set out above the minimum is twelve (12) years imprisonment. It is not specifically pleaded by the State in the Indictment, but the evidence cannot be ignored. The sentence must take account of all relevant facts to arrive at the proportionate penalty due the offender. The sentence must fit the offence: Golu v The State [1979] PNGLR 653. So, for all intent and purposes the prisoner here maybe sentenced to a maximum of 12 years imprisonment given the facts set out here. That obviously will be handed down in a worst case of sexual touching. Here it is not the worst case so a determinate term will be imposed John Elipa Kalabus v The State [1988] PGNC 120; N604 (27 October 1988).
   
5. He has pleaded guilty that he sexually touched knowing that she was the daughter of his nephew, and she was only eight years old: Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006). These mitigating and aggravating features will be considered together with any extenuating circumstances to arrive at a proportionate penalty for the offence against the offender. It is serious and aggravated in that there is serious breach of trust authority and dependency because she is the daughter of his nephew. She is his granddaughter, and he is her grandfather. He committed the offence more than once over the months of April and May 2023. It came to light because he was seen in the act by one Bernard Kolis. And the matter was reported to the police by the mother of the child who was alerted of that fact. Prisoner was arrested and now charged.
   
6. Effectively his guilty plea has saved the child from coming into Court and telling that story before the Court. He must be acknowledged in the sentence for taking that first step to correcting his wrong against his grand child and the family. It is unbecoming particularly with the fact that he is 64 years old and is the grandfather of the child. She is only 8 years old. Had it not been discovered it is left to imagination what could have happened to the young girl. Children are innocent and must be protected from adults who take advantage of their innocence. And as here family members must refrain and ensure trust authority and dependency is not abused as here. It is basic to all, and the sentence must deter would be offenders. Including Children who enter into such behaviour. The family unit is the basic unit in society. It must be protected, and this sentence will see that against the prisoner. He is elderly and is 64 years old. In that age he ought to be wise and display conduct that is of that age with wisdom. Grandchildren must be looked after not taken advantage of and abused as here.
   
7. The extended family here in Papua New Guinea is such that our law must accommodate this situation with firm deterrence against abuse. The grandchild trusted that her grandfather will not abuse her as is the case here. Parents trust their parents and brothers or sisters of their parents, who are grandparents to their children as here to care for the child in the moments where the parents are drawn away for necessities in life. In a village situation parents may go to the garden but leave their children in the care of the elderly as is the case here. Or the elderly of the family will call upon the children of their siblings to get the grannies as here to climb their betel nut or fetch their water for them. Do chores that support them in daily living. This is not opportune avenue for abuse, but a sound relationship and the Courts will protect with strong deterrent and punitive sentences against those who offend as here. His facts will call his sentence against him: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008).
   
8. This is a crime that is always viewed with abhorrence by the Court: State v Kilau [2006] PGNC 125; N3107 (13 October 2006). He was a teacher who had sexual penetration of his 16-year-old pupil leading to pregnancy. He pleaded guilty and was sentenced to seven years imprisonment. This is less serious when compared against that sentence given the aggravation there of a pregnancy that resulted in the actions of the teacher there. That was sexual penetration, and this is sexual touching, but it is a minimum sentence that will follow the letter of the law set by the legislature. Children ought and must be protected: State v Jack Wanapa [2024] N10733 (15 April 2024). He was 56 years old and was ordered to serve 31 years IHL for two counts of sexual touching and persistent sexual abuse section 229D when he persistently had anal sex with his 9-year-old grandson. On totality that was reduced to 24 years IHL. This is sexual touching of an 8 year old granddaughter by a 64 year old grandfather.
   
9. And is of a 64-year-old man if ordered to serve 7 years would be doing time until he is 71 years old. But should that be the case given that he has pleaded guilty saving the child being subjected to torment in the examination of such intimate matter at a tender age. It is my view that a guilty plea must see deductions in the sentence to the prisoner. Because the prisoner has seen wrong from right and is trying in that way to make amends. And here it would follow in view of his advanced age. He must be punished but not to the extent that his life is not considered. It is a balance a wrong must be corrected but not to the extent that the prisoner is made to endure over and above necessary by the facts and circumstances. It is overt that the prisoner seeks to settle the matter in the village amongst the family. That makes sense given he is the grandfather of the child. There is no presentence report to this effect upon the basis which this can be done: Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). Particularly whether or not the parents of the complainant accept what the prisoner intends. And if so in what manner as suspension of sentence must have conditions that will follow to see out restitution and reformation of the prisoner. Therefore, no orders will be made to suspend sentence.
   
10. And this would be consistent with Tardrew, Public Prosecutor v [1986] PNGLR 91. Particularly because of the advanced age of the prisoner, and more so because of the fact that this is an offence that was committed against a family member within the family. Where would he go to after leaving serving time in jail. If he is going back to the family, there must be measures placed there for his settlement and that he does not revert to what he did to her. He settles the family for the wrong and reforms his life and serves time for the offence bearing his age. It is not a new to follow in this way: State v Dala [2006] PGNC 110; CR 311 of 2005 (19 December 2006) he was 44 years old stepfather a first offender the girl who had just turned 16 years old was immediately under his care, authority dependency and trust. He took her into the room where he removed her clothes than penetrated his penis into her vagina and had sexual intercourse with her. He pleaded guilty the court imposed 5 years IHL but suspended sentence remaining after deduction of the custody period on conditions for compensation to the paid to the victim. That was in a family setting which is the same, but it is sexual touching not penetration. And it would not be as serious as in State v Elias [2020] PGNC 172; N8393 (18 March 2020) the facts circumstances here are a less serious. There it was repeat offender here is a first offender who has pleaded guilty and is 64 years old. It is not in the same vein as State v Tulemanil [2008] PGNC 233; N3685 (12 November 2008) there were two separate victims of sexual touching, seven years was imposed and made cumulative, effectively 14 years imprisonment. Bail was ordered refunded.
    
11. The aggregate is that for the crime pursuant to section 229B (1) (a)(4) of the Criminal Code Act, I sentence the prisoner to four (4) years imprisonment in Hard Labour.
    
12. I order that the time in remand of 6 months 1 week 1 day is deducted from that forthwith. That will leave the balance 3 years 5 months 2 weeks 6 days that the prisoner will serve in jail forthwith. I will not suspend that term the prisoner will serve in jail forthwith for the reasons set out above.
    

Orders Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the defendant