The State v Peter Tewi Poksen (2011) N4668

• Jurisdiction: Papua New Guinea
• Judge: Gabi J
• Judgment Date: 17 August 2011
• Citation: (2011) N4668
• Docket Number: CR No. 437 of 2011
• Court: National Court
• Year: 2011
• Judgement Number: N4668

Full Title: CR No. 437 of 2011; The State v Peter Tewi Poksen (2011) N4668

National Court: Gabi J

Judgment Delivered: 17 August 2011

N4668

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 437 of 2011

THE STATE

V

PETER TEWI POKSEN

Manus: Gabi, J

2011 : 17th August

CRIMINAL LAW – sentence – prisoner indicted for the offence of sexual touching of a girl under the age of 12 years – plea of guilty – mitigating and aggravating factors considered – suspended sentence with conditions – s229B (1)(a) & (4) Criminal Code Act

Facts:

The prisoner pleaded guilty to sexual touching of a girl under the age of twelve (12) years contrary to section 229B (1)(a) & (4) of the Criminal Code. The maximum penalty for the offence is twelve (12) years imprisonment. After considering the mitigating and aggravating factors;

Held;

A custodial sentence is inappropriate in this case. The prisoner is sentenced to four (4) years imprisonment. The pre-trial period in custody is deducted and the balance of the term is suspended on the following conditions:

1. The prisoner is ordered to pay the victim and her parents K3, 000.00 within a period of twelve (12) months commencing on 17th August 2011. The Chief Probation Officer is directed to supervise compliance with the compensation order;

2. The prisoner is to keep the peace and be of good behaviour for a period of four (4) years;

3. The prisoner shall not speak to the victim or go within 50 meters of the place of residence of the victim;

4. The prisoner shall not consume alcohol for a period of at least four (4) years commencing on 17th August 2011;

5. The offender shall not leave Manus Province without the leave of the National Court. If there is to be an application for leave it shall be submitted through the Community Corrections and Rehabilitation Service;

6. The prisoner shall attend the local church or other place of spiritual guidance at least once each week;

7. The prisoner shall attend counselling at least once each week.

Cases Cited:

John Elipa Kalabus vs. The State [1988] PNGLR193

Rudy Yekat vs. The State (2001) SC665

The State vs. Epesi Dabu (2008) N3313

The State vs. Jack Manuel Narakavi (2009) N3737

The State vs. Kagewa Tanang (2003) N2941

The State vs. Kiddie Sorari (2004) N2553

The State vs. Levi Ateika (2010) N3962

The State vs. Maria Paul (2003) N2434)

The State vs. Paul Nelson (2005) N2844

The State vs. Peter Tulemani (2008) N3685

The State vs. Reuben Giroro (2009) N3812

The State vs. Steve Archie (2009) N 3727

The State vs. Tamu Luna (2002) N2205

The State vs. Thomas Angup (2005) N2830

The State vs. Timothy Bipi (2009) N3608

The State vs. Tulemani (2008) N3685

The State vs. William Patangala (2006) N3027

Reference:

Thomas, Principles of Sentencing (2nd edition, 1979)

Counsel:

P. Kaluwin, for the State

A. Turi, for the prisoner

SENTENCE

17th August, 2011

1. GABI, J: Introduction: The prisoner pleaded guilty to sexual touching of a girl under the age of twelve (12) years contrary to section 229B (1)(a) & (4) of the Criminal Code. The maximum penalty for the offence is twelve (12) years imprisonment.

Brief facts

2. The brief facts put to the prisoner to obtain a plea were that on

21st December 2010, between the hours of 4.00 pm and 5.30 pm, the prisoner was at home on Pityluh Island. He had just returned from Lorengau town after having some alcoholic drinks and went to sleep. He was awoken by noise from children, who were walking past his house. He heard the victim, “JJ”, outside the house and called her into the house. He offered her some rubber bands and lay her down on a form and pulled her pants down to her thighs. He pulled his trousers down to his knees and proceeded to masturbate over the victim’s vagina. It is alleged that he rubbed his penis on and around the victim’s vagina but did not penetrate her. He then ejaculated on the victim’s vagina and thighs and cleaned her with a towel before sending her home. When she arrived home her mother noticed that her pants and thighs were wet and questioned her. She told the mother the whole story and the matter was reported to the Police the same evening.

3. The victim, who was born on 14th June 2007, was about three (3) and half (1/2) years old at the time of the offence. She was taken to the hospital for medical examination. The medical report shows the following:

“PVE: Speculum not done (no right size)

Manually opened vulva

Obvious sticky whitish fluid seen noted

Vagina externally no bruises, tender (+)

Labia Majora opened up and hymen swollen, torn easily bleeds, very tender on touch.

Clinically, the rest of the other system was normal.”

Antecedent Report

4. The antecedent report shows that the prisoner was previously convicted of wilful murder and sentenced to eleven years imprisonment IHL on

29th December 1993. He was released on licence in 1998 by the then Prime Minister, the late Bill Skate.

Allocutus

5. The prisoner was given the opportunity to address the Court on sentence. He handed up an affidavit where he complained about breaches of his rights. I have asked him to pursue his claim in the Human Rights track.

6. He said that he was getting old and was not thinking rationally and could not control his emotions at the time. He expressed remorse and asked the Court to have pity on him and to forgive him as he is getting old. In his record of interview, the prisoner apologised for what he had done to the victim.

Pre –Sentence Report

7. The prisoner is sixty-five (65) years of age. He comes from a family of 6 children; 4 males and 2 females. He was married with two wives but they have been separated for some time now. He has eight children from those marriages. He has grade 9 education at Manus High School and obtained a certificate in nursing from Goroka Nursing College in 1975. From 1976 to 1993, he was employed as a male nurse by the Department of Heath at Lorengau General Hospital in Manus. He is a member of the Evangelical Church of Manus (ECOM) and attends church service every Sundays and takes part in church activities.

8. The prisoner suffers from arthritis and high blood pressure. It is reported that he suffers memory loss as a result of a severe beating he received at the hands of youths from Liah and Buliso villages in May 2010. He also has impaired vision in his left eye and lost two (2) teeth as a result of the assault. It is suggested that the health issues may affect him in the future. It is further suggested that the prisoner may be a threat to females between the ages of three (3) and seven (7) years but through a program of counselling it is anticipated that he will be able to avoid trouble in the future. The report nevertheless recommends probation supervision with conditions.

Mitigating & Aggravating factors

9. The factors in the prisoner’s favour are that he voluntarily surrendered to the Police, that he cooperated with the Police, that he pleaded guilty, that he expressed remorse, that he acted alone, that no weapon was used, that no physical injury was caused to the victim, that this was an isolated case and that there was no existing relationship of trust, dependency or authority.

10. I agree with counsel for the prisoner that the expression of remorse is genuine. As I indicated earlier, the record of interview shows that the prisoner apologised for what he had done to the victim (see Q. & A. 33). In addition, he surrendered to the Police a day after the offence. An expression of remorse given earlier or closer to the event is genuine (see John Elipa Kalabus v The State [1988] PNGLR193; Rudy Yekat v The State (2001) SC665; The State v Tamu Luna (2002) N2205; The State v Maria Paul (2003) N2434).

11. Another factor in favour of the prisoner is his age. He is sixty-five (65) years of age. In Thomas, Principles of Sentencing (2nd edition, 1979), the learned author said at page 196:

“Age begins to be a relevant consideration again once the offender has passed 60, although at the end of the spectrum it is most effective as a mitigating factor when combined with another, such as good character.”

12. In this case, the prisoner has prior conviction for homicide and reoffended after some seventeen years; this time for sexual touching. Although the prisoner is not generally regarded as a person of good character, the length of time between offences is viewed favourably. I consider his advanced age and health problems as significant mitigating factors.

13. The report also recommended payment of compensation. The parents of the victim have asked for compensation between K10, 000.00 and K15, 000.00 on the basis that he has ruined their daughter’s life. They did not want a custodial sentence due to the prisoner’s health and advanced age. Although the prisoner has no means of support, his children support him financially and those asked have agreed to assist him. They do...