The State v Misiru Inabin

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 20 July 2018
• Citation: (2018) N7374
• Court: National Court
• Year: 2018
• Judgement Number: N7374

Full : CR No 1643 of 2016; The State v Misiru Inabin (2018) N7374

National Court: Anis J

Judgment Delivered: 20 July 2018

N7374

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1643 of 2016

THE STATE

V

MISIRU INABIN

Kibil - Duke of York: Anis J

2018: 7th June & 20th July

CRIMINAL LAW – Sentencing after trial - Section 229B(1)(a)(4) & (5) of the Criminal Code Act Chapter No. 262 – prisoner guilty of sexual touching of a child under the age of 12 years old – child 11 years old – breach of trust, authority and dependency

Cases cited:

State v. Stanley Marai Uriye (2003) N2386

State v. Kenneth Peter (2002) N2336

Jennifer Jean Scott v. Michael Jean Scott (2009) N3881

State v. Misuru Inabin (2018) N7287

State v. Makis (2017) NCSO 545

State v. Manu Nombo (2016) NCSO 478

State v. Aigilo (2017) NCSO 554

State v. Bire Bonnie (2018) N7301

Counsel:

Ms S. Luben, for the State

Ms J. Ainui, for the Accused

SENTENCE

20th July, 2018

1. ANIS J: On 7 June 2018, the Court, after a trial on verdict, found the prisoner guilty of sexual touching of a child under the age of 12 years under section 229B(1)(a), (4) & (5) of the Criminal Code Act Chapter No. 262 (the CC Act). The decision on verdict is unreported and its citation is State v. Misuru Inabin (2018) N7287.

2. This is my ruling on sentence.

BACKGROUND

3. The incident occurred on 23 June 2016, at Mioko Palpal village in the Duke of York of East New Britain Province. The victim was 11 years old at the time. The prisoner was a grandfather of the victim. He was found guilty of touching the vagina of the victim with his fingers at his house whilst he was alone with her.

ISSUE

4. The main issue of course is for this Court to determine a fitting punishment for the prisoner. To do so, let me begin by setting out the relevant provision.

SEXUAL TOUCHING

5. Section 229B(1)(a), (4) and (5) of the CC Act reads:

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

…..

is guilty of a crime

Penalty: Subject to Subsections (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.

(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.

6. The prisoner was also found guilty under subsections (4) and (5) of section 229B of the CC Act. As such and under statute, the prisoner is liable to be sentenced to a maximum of 12 years imprisonment. Of course, the Court’s discretion on sentence (section 19 of the CC Act) will depend on various factors including the circumstances of the case. Let me address them now.

THE VICTIM

7. The victim was 11 years old at the time of the incident. The prisoner is closely related to her. The prisoner is the brother of her grandfather and he is also regarded as her grandfather. The victim was adopted by her grandparents as a child and has since lived with them up to the time she was sexually assaulted by the prisoner. The prisoner is their immediate neighbour.

8. The victim was never interviewed so there is no further information about her.

9. But let me say this. The Court has found in its decision on verdict that the prisoner had an existing relationship of trust, authority and dependency with the victim at the material time. The Court has also found through the evidence of the victim’s grandmother that the victim had shown signs that she was traumatised immediately after the incident.

THE PRISONER

10. No pre-sentence and means assessment reports were requested for the prisoner. The antecedent report states that the prisoner has no prior convictions. This was his first recorded conviction.

11. The prisoner is 66 years old. He comes from Mioko Palpal village in Duke of York in East New Britain. He completed grade 3 at the Kabian Primary School. He never completed his primary education. Since that time onwards, the prisoner has remained a villager. He lived in the village or as a villager up to the time he committed the offence. He sustains himself economically through fishing.

12. At allocatus, the prisoner had these to say. Firstly, he thanked the Court for finding him guilty. Secondly, he said that he was old and that it was his first time to appear in Court. Thirdly, he asked the Court to have mercy on him and give him a non-custodial sentence with probation terms and conditions. There were no extenuating circumstances.

FACTORS

13. The mitigating factors in favour of the prisoner are as follows. Firstly, the prisoner is a first time offender and it appears to be a one off incident. Secondly, the prisoner’s old age. The prisoner is 66 years old. The defence also submits that the advanced age of the prisoner’s mother should be treated as a mitigating factor. I reject that as a valid mitigating factor. Firstly, there is nothing put down to support this claim. There is no information regarding the age of the prisoner’s mother. The prisoner himself makes no mention of this in allocatus. I also find that such a consideration may be raised at the later stage when the Court is considering the type of punishment to impose on the prisoner and not as a mitigating factor.

14. The aggravating factors are as follows. Firstly, there is big age gap of 53 years. Secondly, the tender age of the victim that is 11 years old at that time the crime was committed upon her. The victim was and still is legally regarded as a child. See cases: State v. Stanley Marai Uriye (2003) N2386; State v. Kenneth Peter (2002) N2336 and Jennifer Jean Scott v. Michael Jean Scott (2009) N3881. Thirdly, evidence that the victim was traumatised immediately after the incident. Fourthly, the prisoner has not apologised to the victim in allocatus.

15. The prosecution also submits that because the prisoner has not pleaded guilty, court’s time and resources have been wasted so it submits that these should be taken into account. It also submits that because of the non-guilty plea, the victim had to relive the ordeal by testifying in Court at the trial. Whilst these considerations may be recognised, the thing that bothers me about these two factors is this. I think we should be reminded that the fundament rights of accused persons are protected under the Constitution. In my view, for a person to plead “not guilty” is his or her fundamental right, that is, the right be presumed innocent until proven guilty, and also the right to a fair trial (see section 37 generally and in particular sub-sections (1) & (4)(a) & (e) of the Constitution). So can the Court later be asked to hold an accused person accountable because the accused person had exercised his or her fundamental right and had pleaded not-guilty but that he or she was later found to be guilty? I do not think so. It would be most unfair and also I think that it would be against the spirit of the Constitution. Now, having said that, I note that it would be different, in my view, in a case where an accused person has pleaded guilty or in a plea case. Considerations such as avoiding wastage of resources or the Court’s time or saving the victim from having to relive or retell the ordeal at the trial, would be appropriately regarded as valid or relevant mitigating factors.

16. As such, I disallow these two (2) aggravating factors.

PROSECUTION

17. The prosecution submits that a custodial sentence is warranted for this case. It submits that the maximum prison term the prisoner is eligible to for the offence is 12 years. It submits that the Court should consider a starting point of 6 years before increasing or reducing the sentence as it deems fit.

DEFENCE

18. The defence submits that the suitable sentence should be a non-custodial sentence of 4 years. The defence submits that the Court should take into account the advanced age of the prisoner’s mother. However, as I have stated above in my judgment, this consideration is not supported with any evidence. I dismiss it as a valid consideration for this sentence assessment.

19. The defence also suggests that the Court should consider imposing strict terms and conditions upon the prisoner should he be released on probation. The defence submits that an order for the prisoner to pay compensation should also be part of the conditions that the Court should impose if the prisoner’s sentence is fully suspended.

ASSESSEMNT

20. Both counsel have assisted the Court with the case authorities. I have considered them. I have also considered various similar case authorities and precedents. I will not discuss them all but refer to a few that I think are relevant for this purpose.

21. The first case is the case of State v. Makis (2017) NCSO 545. The decision was delivered on 9 February 2018. The accused pleaded guilty to sexual touching of a child under the age of 12 years old under section 229B(4) of the CC Act. The victim was less than 12 years old at...