The State v Tala John (2012) N4630

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 11 April 2012
• Citation: (2012) N4630
• Docket Number: CR No.548 of 2011
• Court: National Court
• Year: 2012
• Judgement Number: N4630

Full Title: CR No.548 of 2011; The State v Tala John (2012) N4630

National Court: David J

Judgment Delivered: 11 April 2012

N4630

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No.548 of 2011

BETWEEN:

THE STATE

AND:

TALA JOHN

Prisoner

Mt Hagen: David, J

2012: 5 & 11 April

CRIMINAL LAW – sentence – sexual touching of victim’s vagina using fingers – victim aged 10 years at the time of offence – prisoner is biological parent aged 35 years - depositions disclose evidence of sexual penetration of the victim’s vagina with fingers and penis – serious injuries to vagina including tearing of hymen - indictment presented for a lesser charge – sentence of 6 years imposed.

Cases cited:

Sakarowa Koe v The State (2004) SC739

Review Pursuant to Constitution, Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855

The State v Jack Gola and Mopana Aure [1990] PNGLR 206

The State v Peter Yawoma (2001) N2032

The State v Attiock Ishmael (2001) N2294

The State v Moki Lepi (No 2) (2002) N2278

The State v Kagewa Tanang (2003) N2941

The State v Moki Lepi (No.3) (2004) N2374

The State v Kiddi Sorari (2004) N2553

The State v Thomas Angup (2005) N2830

The State v Paul Nelson (2005) N2844

The State v Thomas Tukaliu (2006) N3026

The State v William Patangala (2006) N3027

The State v Brady Meki (2006) N3391

The State v Alexander Junior Nara, CR 1236 of 2004, Unreported & Unnumbered Judgment of Davani, J delivered at Kimbe on 17 April 2007

The State v Wasa David Warifa (2008) N3308

The State v Timothy Bipi (2009) N3608

The State v Jack Manuel Narakavi (2009) N3737

The State v Levi Ateika (2010) N3962

Counsel:

Joe Kesan, for the State

Philip Kapi Leka, for the prisoner

SENTENCE

11 April, 2012

1. DAVID, J: The prisoner was convicted on a plea of guilty to a charge of sexual touching with his fingers, the vagina of a female child under the age of 12 years namely Gabal Tala, who was then aged 10 years, on 30 March 2011 at Bunumwo Tea Plantation, Banz in the Jiwaka Province contrary to section 229B (1)(a)(4) and (5) of the Criminal Code.

2. The short facts presented to the Court for purposes of arraignment were that on 30 March 2011, the prisoner was sleeping in his house with his children including the victim, aged 10 years at the time at Bunumwo Tea Plantation, Banz in the Jiwaka Province. In the early hours of that day between 01:00 am and 02:00 am, the prisoner got up from where he was sleeping in his room and went over to the children’s room where the children including the victim were sleeping. He went to the victim, removed her clothes and rubbed his fingers against her vagina. The victim was the prisoner’s biological child, the first born. The prisoner breached the relationship of trust.

3. The prisoner is from Mormaulle village in the Gumine District of the Simbu Province. He is now 35 years old. He was married to Ambai, but his wife died in 2009 and he remains a widower. They have 5 children from the marriage and the victim is the eldest. He was employed by WR Carpenters as a casual labourer at the Bunumwo Tea Plantation and was residing at the residential compound at the plantation at the time of the offence. His parents are deceased. He is the 4th born out of 8 siblings in his family comprising 4 sisters and 4 brothers. He has received no formal education. He has been in custody since committing the offence on 30 March 2011 and that works out to be 1 year and 12 days.

4. The prisoner has no prior convictions.

5. In his allocutus, the prisoner said the victim had been away from home for about 2 months and was staying with people who were not relatives at a place he did not know. Someone told him where she was so after finishing work at 03:00 pm, he went to find her at the location given accompanied by 2 of his brothers. Compensation of K200.00 was demanded by people the victim was residing with. He only had K20.00 on him at the time so he paid them that amount. They then took the victim an d returned home. The victim was away for so long and might have been going around with men during that time so he wanted to check her body. He committed the offence whilst in the process of doing that.

6. In mitigation, it was submitted that; the prisoner pleaded guilty; the prisoner was a first offender; and the prisoner co-operated with the police by making early admissions in the Record of Interview.

7. Mr. Kapi Leka for the prisoner submitted that this case did not fall within the worst category of the offence under consideration so the maximum penalty for the offence should not be imposed. He suggested that a sentence between 3 to 5 years was appropriate in the circumstances of the present case.

8. Mr. Kapi Leka invited me to consider a number of decisions imposed by the National Court to assist me arrive at an appropriate sentence for the prisoner. These were The State v Peter Yawoma (2001) N2032; The State v Moki Lepi (No 2) (2002) N2278; The State v Kiddi Sorari (2004) N2553; The State v William Patangala (2006) N3027; The State v Brady Meki (2006) N3391; The State v Alexander Junior Nara, CR 1236 of 2004, Unreported & Unnumbered Judgment of Davani, J delivered at Kimbe on 17 April 2007.

9. In Peter Yawoma, the prisoner was charged with one count of unlawful carnal knowledge of a girl under the age of 16 years pursuant to the now repealed section 216 (1)(a) of the Code. That followed a plea bargain between the parties from the more serious charge of rape. The victim aged 13 years was gang raped by the prisoner and 2 of his accomplices whilst on her way home. Serious physical injuries were inflicted upon the victim, especially her vagina through penile penetration and the insertion of a copper wire coil. These injuries included bruises and lacerations to her vaginal wall, her hymen was torn and she was still bleeding from her vagina. The offence carried a maximum penalty of 5 years. The prisoner’s co-offender was convicted on a similar charge and sentenced to 2 years IHL. On a guilty plea and to avoid disparity of sentence, a sentence of 2 years IHL was imposed.

10. In Moki Lepi (No.2), a sentence of 8 years was imposed on a charge of attempted unlawful carnal knowledge of a girl under the age of 10 years and a further 3 years for indecently dealing with a girl under the age of 16 years after a trial. These sentences were ordered to be served cumulatively. That was in a case of a breach of a trust relationship where the victim and the offender were distantly related as niece and uncle respectively through the offender’s marriage to the victim’s aunt. The maximum penalty for unlawful carnal knowledge of a girl under the age of 10 years was 14 years. The maximum penalty for indecently dealing with a girl under the age of 16 years was 5 years if the victim were under the age of 12 years. The victim was about 5 years old at the time of the offences and the offender was a married man with children of his own. There was a substantial age difference. The offences were committed over a period of 7 months at different places including at the victim’s grandparents’ house.

11. To the summary of the above-mentioned case, I add that the prisoner appealed against both his conviction and sentence. The Supreme Court confirmed his conviction, but upheld his appeal against sentence and remitted the matter back to the trial judge for a re-sentence for failure to administer the allocutus. At the re-hearing, the trial judge saw no reason to depart from the earlier sentences and re-imposed them less time already spent in custody. The case is now reported as The State v Moki Lepi (No.3) (2004) N2374.

12. In Kiddi Sorari, the prisoner aged 14 years at the time of the offence was convicted for sexually touching a female child aged 6 years on her vagina with his fingers on a plea of guilty and sentenced to 5 years imprisonment in hard labour. The prisoner rubbed his fingers on the victim’s vagina and tried to push his fingers into her vagina as well. The prisoner held up the victim and her sister as they were walking to their village with a knife and took the victim into the nearby bushes where he committed the offence. There were minor grazes to her clitoris and the vaginal area in general. The Court found that this was in fact an act of abduction and attempted rape.

13. In William Patangala, the prisoner was convicted on a plea of guilty to one count of sexual touching aggravated by an existing relationship of trust, authority and dependency. The prisoner’s wife and the victim’s mother were sisters therefore he was an uncle to the victim. The victim was aged 14 years at the time of the offence. The prisoner fondled the victim’s breasts and sucked the nipples. The prisoner paid compensation comprising K300.00 and 60 fathoms of tabu to the victim and her relatives after an order was made by village elders. He was sentenced to 4 years imprisonment and 3 years was suspended on terms.

14. In Brady Meki, the prisoner aged 18 years at the time of the offence was convicted for sexually touching a female child aged 6 years on her vagina with his right index finger on a plea of guilty and sentenced to 3 years imprisonment in...