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State v Mark [2024] PGNC 144; N10734 (5 April 2024)

N10734

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1057 OF 2022

THE STATE

V

JOHN MARK

Bomana: Miviri J
2024 : 05^th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Sexual Touching S 229B (1)(a) & (4) CCA – Plea – 47-Year Old Man – Victim 13 years old – Breasts Touched – Protection of Children – First Offender – Guilty Plea – Privacy – Strong Deterrent and Punitive Sentence – 4 years IHL.

Facts

Prisoner sexually touched complainant a 13-year-old girl.

Held
Guilty Plea
First offender
47-year-old man on 13-year-old girl.
Protection of young children.
Strong Deterrent Sentence.
4 years IHL. Part suspended.

Cases Cited:
Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006)
Golu v The State [1979] PNGLR 653
State v Kepas [2007] PGNC 77; N3192 (21 March 2007)
State v Tigi (No.2) [2013] PGNC 116; N5310 (24 July 2013)
Tardrew, Public Prosecutor [1986] PNGLR 91
Lawrence Simbe v The State [1994] PNGLR 38
Kumbamong v State [2008] PGSC 51; SC1017
Kalabus v The State [1988-89] PNGLR 193

Counsel:

E. Kariko, for the State
T. Yapao, for the Defendant

SENTENCE

05^th April 2024

1. MIVIRI J: This is the sentence of John Mark who pleaded guilty to sexual touching under section 229B (1) (a) of the Criminal Code Act, of a 13-year-old girl Esther Suki.
   
2. He was indicted that; “He on the 02^nd day of October 2021 touched with his hands, the sexual part, namely the breasts, of Esther Suki a child under the age of 16 years old, being aged at the time 13 years old contrary to section 229B (1) (a) of the Criminal Code Act.”
   
3. Section 229B Sexual Touching 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. He is looking at sentence to a maximum of seven years because she is not under 12 years old. She is 13 years old. He pleaded guilty and expressed remorse when given opportunity. He admitted that on the 2^nd October 2021 around 12pm he approached the complainant who was seated at a market table and offered her betel nut. As she was taking it, he forcefully reached into her Shirt and grabbed her breasts. She was shocked and quickly removed his hand. He laughed at her and walked away. She reacted by hitting his hand and removing it from her breasts.
   
5. It was an act of invading the privacy of a 13-year-old girl by touching her breasts. There was no evidence of any prior sexual behaviour against her by the prisoner. In the way that he acted he did not respect her and treated her in that manner. It was in a public area at a market that she was looking after for another relative. But he saved her the embarrassment of coming to court on giving evidence of that fact. Time logistics was saved in the way that the prisoner had pleaded guilty. In my view when a guilty plea as here is taken it is a first step by the prisoner that he accepts his wrong against the complainant and society. He will be accorded that benefit in the sentence that is passed upon him: Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006).
   
6. His sentence will draw directly from the facts that he has pleaded guilty to. It is not the worst case of its kind so will not draw the maximum sentence due: Golu v The State [1979] PNGLR 653. But children have rights that must be protected in the same way he has his rights. Because the intent of the People through their legislature against persons like the prisoner must not be defeated in the sentence. The protection of the child from men and persons with like behaviour as the prisoner must be stopped outright. And that children must also be protected from themselves if they are also allowing the offence to take place.
   
7. He does not display the serious and aggravating features set out in

State v Kepas [2007] PGNC 77; N3192 (21 March 2007) where 12 years was imposed against the prisoner, a 60-year man who committed five instances of sexual touching and one of sexual penetration. Like here, he also pleaded guilty to the charges. He is not of similar settings as in State v Tigi (No.2) [2013] PGNC 116; N5310 (24 July 2013) where the prisoner was sentenced after trial on sexual touching, and sexual penetration of the vagina and using fingers and penis many times over a span of one year three months by a 61-year-old prisoner against 12 years old, to 13 years imprisonment. His sentence in my view will be at the lower end because of his facts and circumstances set out above.

8. It would not be erroneous to consider suspension of sentence, which is invariable here in the light of Tardrew, Public Prosecutor [1986] PNGLR 91. A first offender who has spent almost two years going to 6 months awaiting the matter. And that he has pleaded guilty and taken responsibility for his actions. There is nothing that is aggravating more to see a time other than suspension. He is an adult mature man aged 47 years old at the time of the commission of the offence. A married man with five children ages ranging from 16, 13, 7, 5, 2 years who he looked after because his wife had left him. That in my view is lesson to stay out of like behaviour. Because I consider it settled at the outset that sentencing discretion is not tied to a mathematical formula, but each case will draw its own sentence by its own facts and circumstance: Lawrence Simbe v The State [1994] PNGLR 38.
   
9. And to religiously adhere strictly to guidelines and range would be equivalent to legislating, which is not the prerogative of the courts: Kumbamong v State [2008] PGSC 51; SC1017 (29^th September 2008). And in each case the sentence must be proportionate to the gravity of the offence depicted out by its facts and circumstances. And it is trite that the worst case attracts the maximum penalty: Goli Golu (supra). And it makes sense in the light of Kalabus v The State [1988-89] PNGLR 193 which is one of the worst cases of sexual perversion leading to death of a nine (9) year old girl. It is the extreme warranting the maximum sentence of life imprisonment for murder. This is nowhere near to that.
   
10. For the conviction of sexual Touching pursuant to section 229B (1) (a) of the Criminal Code Act, the prisoner is sentenced to 4 years imprisonment IHL. Time in custody of 2 years 6 months will be deducted forthwith. 1 year 6 months will be suspended on a GBB for the same period.
    

Ordered Accordingly.

_____________________________________________________________

Public Prosecutor: Lawyers for the State

Public Solicitor : Lawyers for the Defendant