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Kariia v Depe [2022] PGDC 84; DC9021 (12 October 2022)

DC9021

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

SITTING IN IT GRADE V CRIMINAL JURISDICTION COURT

GR NO 74 of 2022
BETWEEN

ESLYNE KARIIA
Informant

AND

RAYNALD DEPE
Defendant

ARAWA: BRUCE TASIKUL PM

2022: 05-12^TH OCTOBER
      

Criminal Law – : Sentence – Sexual Touching- contrary to Section 349 of the Criminal Code Act – Plea of Guilt – Sentencing Guidelines – Mitigating and Aggravating Factors – Expression of Remorse – Prevalent Offence

Cases Cited;

The State –v-Manga Kinjip [1976] PNGLR 86
References

Section 19 (e) of the Criminal Code

Counsel

First Constable Justine Katu for Prosecution

Defendant Appearing for himself.

SENTENCING

1. B: TASIKUL-PM: This is one of my judgement on sentence during my grade 5 court circuit to Arawa, Central Bougainville, Autonomous Region of Bougainville. My court circuit was from the 3^rd to the 14^th October,2022.
   
2. The defendant Raynald Depe appeared before me from police custody. He was charge for sexual touching of a victim’s buttock. He was arraigned and he pleaded guilty to the charge. The court entered a provisional plea of guilty. The prosecution tenered the statement of fact and read it to the defendant.
   
3. When asked by the court if he understood the facts before him, and whether he accepted the statement of fact. He responded by saying that everything mentioned on the statement of fact are true. He was asked to say anything in his defence, but say he have nothing to say.
   
4. The court explained to him the consequences of accepting the statement of fact before the court and he freely accepted everything without any uncertainty. See The State –v-Manga Kinjip [1976] PNGLR 86
5. The court then confirmed the provisional plea of guilty. The court therefore finds the defendant guilty to the charge of sexual touching.
   
6. The following statement of facts that he pleaded guilty to: On the 3^rd of February,2022 at Rumarumato village, in Manetai, Panguna District, the victim Mrs. Anthonia Topisau was having her bath ready to go to church at a river. As she was about to change her clothes, the defendant from no-way jumped out from the bush and squeezed her buttock.
   
7. As he was doing that he told the victim that he always admired her because of her big bum. After touching her, the defendant ran away into hiding. He was later arrested by the Auxiliary police and he was brought to Arawa police station where he was charge.
   
8. After he was found guilty by the court the issue now is: what would be the appropriate sentence should be imposed upon the defendant?
   
9. Section 349 of the Criminal Code- Indecent assaults on female. A person who unlawfully and indecently assaults a woman or a girl is guilty of misdemeanour. Penalty: imprisonment for a term not exceeding two years.
   
10. The defendant is liable to be sentence to a term not exceeding two years, However, s.19 of the Criminal code gives the Summary court jurisdiction to exercise it discretion for an alternative sentence. The maximum sentence is only reserve for the worst kind of the offence.
    
11. In considering what is the appropriate sentence, I first consider the defendant personal particulars. He is 20 years old and single. He hasn’t been to any formal educational institution. He is a Roman Catholic faith and he reside in the village.
    
12. In his allocutus, he is sorry for what he did and he promise not to do it again. He told the court that he paid the victim K300.00, however it was not confirmed by the victim as she was not present. He further told the court that he has been in police custody for almost two (2) months now.
    
13. The mitigating factors for the defendant is that he pleaded guilty and he save times as I only have 2 days before my circuit ends. He expresses genuine remorse. He is a first time offender with no previous conviction.
    
14. The aggravating factors against the defendant is that he assaulted the victim without her consent. The is a serious offence.
    
15. I have tried without success to excess Paclii and other legal site to compare sentences imposed by other Courts, on similar cases of the same offence, but with no availability of proper tools. So my decision will be based on the evidence before me, which include the hand-up brief which was tenered to the court with no objection from the defendant.
    
16. Before I pass my judgment, let me say a few remarks. Violence against women and girls is becoming prevalent. Some men folk don’t respect women or young girls as it used to be some years back in our society. We must treat our women folks with respect. They are our mothers and sisters. We must control our sexual desire when we see beautiful ladies or girls.
    
17. In your case you admired her as you have told the court that you like her because of her large bum. This is unacceptable excuse. The victim is a married woman and a mother. You were luck that her husband didn’t retaliate towards you for what you did to his wife.
    
18. I have consider giving you a custodial sentence. However, I am also mindful that if I sent you to prison it is no use because we don’t have a proper prison facility here on Bougainville. I don’t think what you did warrant a custodial sentence. You have spent 2 months in police custody, which I believe you have learnt your lesion.
    
19. For this reason, I will sentence you to 12 months’ imprisonment. I will suspend the whole of the sentence and you will be placed on Probation with the following condition;
    
    1. That you be place on a good behaviour bond;
    2. That you, apologies to the victim and pay K500.00 compensations within 6 months’;
    3. That you don’t commit and offences during this probation period;
    4. That you must attend church service regularly on Sunday;
    5. If you fail to follow any of the above condition you will be re-arrested and you will serve the full 12 months’ term.
    6. After you are release from custody, you must make your way to Buka and see the Probation officer next week to get your details and this court order.