The State v Thomas Tukaliu (2006) N3026

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 22 February 2006
• Citation: (2006) N3026
• Docket Number: CR No 910 of 2005
• Court: National Court
• Year: 2006
• Judgement Number: N3026

Full Title: CR No 910 of 2005; The State v Thomas Tukaliu (2006) N3026

National Court: Lenalia J

Judgment Delivered: 22 February 2006

N3026

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.910 OF 2005

THE STATE

-V-

THOMAS TUKALIU

KOKOPO: LENALIA, J.

2006: 14th & 17th & 22nd Feb.

L. Rangan, for the State

P. Kaluwin, for the Accused

22nd February, 2006

LENALIA, J: The prisoner pleaded guilty to two counts of sexual touching. On both occasions they were aggravated by an existing relationship of trust authority and dependency. This is an offence contrary to s.229B (1) (a) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

The facts of the first count dates back to an unknown date in the year 2004 at Wairiki No.1 Village in Toma/Vunadidir Local Level Government area in the Gazelle District on this Province. The victim in these two cases Francisca Bata was sleeping in her parents’ house in the living room. At that year, she was doing her Grade 2 at the local Elementary School and she was age 10 years then.

On the night in question, the accused came to where the victim was sleeping and started to stimulate the victim by touching her vagina. It appears from the facts that, the accused conducted the same abuse on the victim a number of times before the date of the second count. According to the victim, the second time the accused did what he did to the victim may have been in January 2005 and to be specific must have been on 27th of that month.

As well as touching the victim’s vagina on that second occasion, the victim alleged that the accused sexually penetrated her. On those first two occasions, the victim said, when she woke up in the morning on those two occasions, she wanted to tell her mother about what the prisoner did to her but she was afraid since the prisoner had told her not to tell anyone.

At least Francisca could recall the date being Monday 31st of January 2005 when the prisoner molested the victim the second time as alleged on the indictment. It was sometime over midday (between 3pm and 4pm) when Francisca was doing some cleaning up in her mother’s kitchen. She took the dishes out to the open space near their water tank and got busy by brushing and washing the saucepans.

As she was doing this, the accused came to her and asked her to lift one leg up and rest it on the concrete used as the basement for the water tank. At that time she was wearing a piece of calico only without any pants. She lifted up one leg and rested it on the concrete basement in such a position to almost expose her private part. The accused took advantage of that and stimulated the victim by touching her vagina and pushed his fingers in and out from the victim’s private part.

When the accused was doing that, the victim’s mother came out from the house to check where the victim was. When she looked up to where the accused and the victim were, she observed that the victim was resting one of her legs on the concrete while bending over. Hennie Bata (the victim’s mother) also saw the accused kneeling down in front of the victim. She thought that Francisca had been hurt in her leg somehow and the accused was trying to assist her.

However, much to her surprise, Hennie noticed that, when the victim put her leg down to the ground and looked at her mother, she looked worried as though something was wrong. Hannie called to the victim three times, she did not response for a while but latter she came. The victim’s unreluctance to attend to her mother’s call made her mother suspicious about what the accused was doing to her daughter.

She invited the victim to accompany her to see her aunty. When they were in her auntie’s house, Hannie informed Patricia (the aunty to the victim) about her suspicion. Patricia took the victim to the copra drier where she asked the victim about why the accused was bending over right in front of her. It was then that the victim revealed her relationship with the accused.

Law.

It is an offence under the law to sexually touch any parts of the body of a child under the age of 16 years. For sexual touching per se, the accused could be sentenced to a term of 7 years imprisonment. The offence is aggravated by two factors. First where a child is under the age of 12 years, an offender may be sentenced to the maximum term of 12 years. Secondly, Subsection (5) of the section charged states that if the offence of sexual touching is committed with a child and where there is an existing relationship of ¡®trust, authority or dependency¡¯ the maximum imprisonment term is again 12 years.

On the first charge, the accused is charged pursuant to section 229B (1) (a) and (b) of the Criminal Code (Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. This section states:

¡°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; or

(b) compels a child under the age of 16 years to touch, 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.¡±

Then further Subsection (4) and (5) state:

¡°(4) If the child is under the age of 12 years, an

offence 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 and 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¡±.

Sexual abuse of very young children and the women in this country has been adequately addressed by the Parliament by passing the Criminal Code (Sexual Offences and Crimes Against Children) Act of

2002. The Act provides for all forms of sexual abuse including sexual touching, sexual penetration, indecent acts directed at a child, persistent sexual abuse and even “child prostitution” and “child pornography”.

It is hoped that by imposition of severe penalties, the public may be made aware that, there is a law which caters for the interest of the young victims as well as the women folks who may suffer from any form of physical sexual abuse. The worse form of sexual abuse is the type that takes place within the home environment between members of the same family or the extended family unit as was the case in the instant case. It is for this reason that the legislature included in s.229B (5) the situation where there is a breach of the relationship of trust, authority and dependency.

It is an offence to abuse the trust and authority which is placed on a person. This is why s.229E of the Act states:

“(1) A person who engages in an act of sexual penetration or

sexual touching of a child between the age of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years.

(2) It is not a defence of a charge under this section that the child consented unless, at the time of the alleged offence, the accused believed on reasonable grounds that the child was aged 18 years or older”

The present case is aggravated by a number of factors. First, I find from the facts tendered to this court by the State counsel that, though, there was no physical violence caused to the victim, Mr. Rangan of counsel for the State rightly submitted that, the statement obtained from the victim shows that, whenever she sees the accused, she is usually mentally affected and scared for her life.

I have seen the victim’s statement in the file and I agree that the victim due to her age can easily be mentally tortured by recalling what the accused did to her.

Secondly, the facts show that the relationship between the accused and the victim went far beyond mere sexual touching for two reasons. First, it is possible that; the prisoner may have sexually penetrated the victim. That is quite obvious from the medical report dated 31st January 2005 conducted by Dr. Melee Samson at the St. Mary’s Hospital Vunapope. Such report suggests absence of vaginal hymen could only be caused by penile vaginal penetration. Next aggravation is the fact that there is an existing relationship of trust, authority and dependency between the prisoner and the victim.

The new law is very specific by saying that if there was present such relationship, it puts the penalty for breach of trust cases above ordinary sexual abuse cases.

Children are not born out from holes in the tress or from stone holes or caves so that they can be treated the way perpetrators of sexual abuse treat them. They are born from human beings and rightly they deserve to be treated with care and all human curtsey due to them just like adult human beings. They have all the basic to the protection of law enshrined in the Constitution.

Being children, they have the right to the protection of the law, such as the right to freedom, right to life; they have the right to the protection from inhuman treatment, (see Sections 32, 35, 36 and 37 of the Constitution) and other rights that are protected by any other law.

As to how the victim in the instant case is related to the accused is a great concern to this court. The victim Francisca Bata is the niece of the accused. In English that means, the victim is the daughter of the accused elder brother. Mr. Rangan...