The State v Jacky Moses (2012) N4886

• Jurisdiction: Papua New Guinea
• Judge: Ipang AJ
• Judgment Date: 14 November 2012
• Citation: (2012) N4886
• Docket Number: CR NO. 867 of 2011
• Court: National Court
• Year: 2012
• Judgement Number: N4886

Full Title: CR NO. 867 of 2011; The State v Jacky Moses (2012) N4886

National Court: Ipang AJ

Judgment Delivered: 14 November 2012

N4886

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 867 OF 2011

STATE

V

JACKY MOSES

Prisoner

Goroka: Ipang AJ

2012: 25, 31 October

14 November

CRIMINAL LAW – Sentence – Sentencing principles for Sexual Touching Child under 12 years – Criminal Code (Sexual Offences & Crimes Against Children) Act, 2002 – S.229 B (1) (a) (4) – Circumstances of aggravation – maximum penalty of 12 years – starting head sentence – identification of relevant considerations.

CRIMINAL LAW – Sentence – Pre Sentence Report and Means Assessment Report taken in to consideration – PSR recommends prisoner as suitable candidate for Probation.

CRIMINAL LAW – Sentence - Suspension of a sentence of imprisonment is not an exercise of leniency but an order made in the community interest designed to prevent re-offending.

Cases Cited

State v Paul Nelson (2005) N2844 (25.05.05)

State v Timothy Bipi (2009) N3608 (23.04.09)

State v Kagewa Tanang (2005) N2941

Counsel

Mr. K. Umpake, for the State

Ms. R.Kukari & Mr. R. Kasito, for the Prisoner

SENTENCE

14 November, 2012

1. IPANG AJ: The prisoner Jacky Moses pleaded guilty to one count of sexually touching the child victim JW at the time of the offence was two (2) years old by fondling with her vagina with his fingers. An offence which is contrary to Section 229 B (1) (a) and (4) of the Criminal Code (Sexual offences and Crimes Against Children) Act, 2002. This is the sentence for the prisoner.

Brief Facts

2. The relevant brief facts for the purpose of sentence for prisoner are as follows: On the 18th of January, 2011 between 11:00am and 1:00pm in the afternoon he took the child victim JW in to the house at Seigu village, Goroka and engaged in an act of sexually touching her by fondling with her vagina with his fingers. While doing this the child’s mother called out for the child. This disturbed the prisoner and he let the child go.

3. During the incident the victim sustained injuries to her vagina. In the night while the child was passing urine, she felt pain. The child’s mother found out and reported the matter to the Police. Prisoner was subsequently arrested and charged.

RELEVANT LAW

4. The penalty under the offence which the prisoner is charged with carries a maximum of 12 years imprisonment term. This penalty is provided for under subsection (4) of section 229 B. Thus, section 229 B provides:

“229 B

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 subsection (4) and (5), imprisonment for a term not exceeding seven years.

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”.

Antecedent Report

5. The Antecedent Report as presented by Mr. K.Umpake, State Prosecutor revealed that prisoner has nil prior convictions.

Allocutus

6. When I administered the allocutus, the prisoner said he is sorry for what he has done and asked for Probation.

Pre Sentence Report

7. At the time the prisoner was interviewed for the Pre Sentence Report to be prepared, he was 18 years old. Prisoner comes from a family of four (4) siblings comprising of two (2) females. He said he is the eldest. His second sister is Serah and she is 16 years old. The third born is Ale who is 8 years old and she is doing grade one (1) at East Goroka Primary School. The fourth born is Gena and she is four (4) years old. Prisoner’s parents are unemployed settlers. They sell betel nuts and smoke at Seigu to sustain their family. They originated from Kimi in Okapa District of Eastern Highlands Province.

8. The prisoner has no source of income. He depends heavily on his parents for his basic needs. He said on the day of the offence the victim’s mother went to the market to sell betel nuts and left the victim with him to take care of her. He said he played around with the victim, his younger sister and the victim’s younger brother. He said his small sister and the victim were naked. After playing with the children for some time, he said he was sexually aroused. He scared the two (2) children away and took the victim in the house and sexually penetrated the victim’s vagina with his fingers. He said the victim’s parents found out and reported him to the Police. He was arrested and charged.

9. A community leader Gibson Urakusiee said the prisoner is a good person. Community sees him as an obedient person and always assists his parents. He said when the incident happened they realized the bad side of the prisoner. Urakusiee said when incident happened there was an argument but now both the victim’s family and prisoner’s family live happily. Michael Sipa confirmed that two families have reconciled. He said the prisoner’s family under custom should compensate the victim’s uncles so that there would be peace. What Michael Sipa said was confirmed by Wai Kuran and Rose Kuran, the victim’s parents. Both also suggested a non- custodial sentence for the prisoner. The prisoner’s parents are concerned about what prisoner did. They said they support the prisoner and pay compensation. They requested for a non- custodial sentence.

10. The prisoner was a grade 5 student at East Goroka Primary School in 2011 but has left school because of the incident. He is a first time offender and a juvenile. PSR states that he plans to do grade 6 next year, if he is given a non- custodial sentence. Prisoner has expressed remorse for what he did. Both the victim’s family and the prisoner’s family agreed that the prisoner be given a non –custodial sentence. PSR recommended prisoner as suitable candidate for Probation Supervision. In the Means Assessment Report the prisoner’s family is willing to pay K1000.00 within 5 months. Probation Officer recommends K500.00 compensation to be paid within four (4) months.

Submission by Defence Counsel

11. Ms. R.Kukari of counsel for the Prisoner submitted the Prisoners Personal particulars much of which has been covered in the PSR so I do not wish to repeat them. Except that the prisoner practices his Christian faith with Seventh Day Adventist Church.

12. Defence Counsel submitted the following mitigating factors for the prisoner:

1. No weapons were used against the victim.

2. No relationship of trust.

3. There is reconciliation between victims’ relatives and the prisoners relatives.

4. He co-operated well with the police during the investigation and made early plea.

5. He pleaded guilty to committing the offence.

6. He expressed remorse.

7. He is a Juvenile and a first time offender – No prior conviction.

13. The following aggravating factors were submitted for the prisoner.

1. There was a huge age difference (16 years)

2. Victim sustained injuries.

14. Mr. K.Umpake of counsel for the State raised the aggravating circumstances and the need for a deterrent sentence to reflect this.

15. In terms of giving due consideration and reliance on the mitigating and aggravating factors to arrive at an appropriate sentence for the prisoner I consider the general approach stated by Cannings, J in The State v Paul Nelson (2005) N2844 (25 May, 2005) in the following terms:

“The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is the head sentence will be lifted above the starting. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be “strongly mitigating.” Others maybe “mildly mitigating.” The same goes for aggravating factors.”

16. It is appropriate and relevant at this stage to consider past decided cases on how Judges have exercised their sentencing discretions in cases dealing with offences of Sexual Touching...