N2243

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 531 of 2001

THE STATE

-V-

JOSEPH MINJIHAU

WEWAK: KANDAKASI, J.
2002: 22nd and 24th May

CRIMINAL LAW - Sentence – Unlawful carnal knowledge of a girl under the age of 16 – Obtaining sexual intercourse with victim on number of occasion in return for cash – Need to protect children against abuse paramount – Introducing victim to sex for cash trade considered very serious - Prisoner age 47 married with children – No Prior convictions – Aggravating factors outweighing mitigating factors – Maximum prescribed sentence of 5 years imposed – Criminal Code ss.216 and 19

Cases cited:
The State v. Sottie Apusa [1988-89] PNGLR 170.
The State v. Peter Yawoma (19/01/01) N2032.

Counsel:
Mr. M. Ruarri for the State 
Mr. D. Kari for the Accused

24th May, 2002

DECISION ON SENTENCE

KANDAKASI J: 	You pleaded guilty to one charge of unlawful carnal knowledge of a girl (named but mentioned only as the victim for her protection) under the age of 16 years. That was here in Wewak on 3rd November 2001, at the Labu camp Kreer area. What you did is prohibited by s. 348 of the Criminal Code. 

Facts

The facts as they appear from the depositions are these. Prior to the 3rd of November 2001, you have had about 4 sexual intercourses with the victim. Each time you had sex with the victim you paid varying amounts of K20.00 and K10.00. It seems you started all of these off with offering her a K20.00. When she showed an interest in receiving it, you asked her to follow you into your house and then into the bedroom of your house. Once in the bedroom, you told her that, if she wanted to get the K20.00, she must have sexual intercourse with you. As she wanted the money, she agreed to you having sex with you. After satisfying your sexual desire, you let her go with the K20.00. You secured the other sex affairs in much the same way. On the fifth occasion, you had sex with her in a sago palm area. That was on the 3rd of November 2001 and you were finally caught. 

The victim’s adopted mother came in at you request and confirmed that the victim was born on 28th August 1988. The victim also came into court for the Courts observation as to her appearance and that confirmed that she is in fact an under age girl. She did not appear to be a grown up by any means. I could not tell how she could give the impression to you that she was of a mature age and ready for sex with such a person like you.

Both your family and that of the victim live in the same area here in the township of Wewak, particular at Labu camp in Kreer. Hence you are not total strangers but know to each other. From the evidence on file, it is clear that the people in the area do some things together, such as watching Videos and TV. The Children also played together which usually happens in most communities in the country.

Address on sentence

In your address on sentence, you told the Court that you are married with six children, with two of them in high school while two of them are in primary school. You said you were sorry for what you have done and asked the Court to exercise mercy toward you. I asked why was it that you did not turn to your wife to satisfy your sexual desires and you said she was with a new baby. 

You lawyer added a few more details about you. He submitted and I note that you are about 42 years old and married with 6 children, 5 girls and 1 boy. You are the eldest of your own family of 3. You have been up to grade 8 education and managed to find employment with the Copra Marketing Board up to the position of a foreman. You have no prior convictions and so this is the first time you are before a court.

Your lawyer also drew the Court’s attention to the cases of The State v. Sottie Apusa [1988-89] PNGLR 170, and asked me to be guided by the guidelines suggested in that case. He then submitted that your case falls into the third category where circumstances of aggravation exist and asked this Court to give you a sentence less then the prescribe sentence of 5 years. 

The Offence and Sentencing trend. 

The offence with which you have been charge is created and the penalty is prescribed by s.216 of the Code. It carries a maximum sentence of 5 years subject to section 19 also of the Code. The only reported case on point is the case of The State v. Sottie Apusa (supra) referred to by your lawyer. The only addition to that, as far as I am aware is my judgement in The State v. Peter Yawoma (19/01/01) N2032.

In The State v. Sottie Apusa (supra) the offender, a stepfather had sexual intercourse with his stepdaughter six times over four months. He pleaded guilty to a charge under s. 216 (1)(a) of the Code. A sentence of 3 years and two months was imposed. At the same time the Court in my view ably set out the relevant guidelines for sentencing in unlawful carnal knowledge cases. Those guidelines are best summarised in the following terms, which appear in the head note to the judgement:

(1)	a lower range from discharge up to 20 months, for cases where the accused and the victim are of similar age, where the accused is a young offender and the victim between 14 and 16 years and where the offender is disabled, or physically or mentally handicapped and the victim a consenting party;
(2)	a middle range from 20 months to 40 months, for cases where the accused is a mature man and there are no circumstances of aggravation;
(3)	an upper range from 40 months to the maximum of five years, for cases where there are circumstances of aggravation, such as, cases where there is a relationship of trust and dependency between the accused and the victim, for example, teacher and pupil, medical career and patient, and step-father/uncle relationships.

I referred to these guidelines in my judgement in The State v. Peter Yawoma (supra). I then noted that there were other cases on unlawful carnal knowledge but they involved girls under the age of 12 or the offences have been committed against the course of nature or that they have been committed in association with other offences. I therefore said in that case that, strictly speaking, those other cases couldn’t be of any help. Up to this time, the Courts are left only with the guidelines set out in the Sottie Apusa case. In Peter Yawoma, I suggested an addition guideline for sentencing in these kind of cases. The suggestion was that, if the facts of a case reveal a more serious offence such as rape, the maximum should be imposed. After having said that, I found myself constrained to give a sentence of 2 years, for what was a rape case but for the co-accused being previously charged with an offence under s. 216 and was given such a sentence. 

For the purpose of sentencing in your case, I note in your favour that you have no prior convictions. So you have no record of you being to court and being found guilty of any offence. I also note that you are the eldest of a family of three. You are married with 6 children of your own, 5 of them girls and one boy. Two of your children are in high school and 2 in primary school. I also note that you pleaded guilty to this offence. That has saved the victim of the shame and pain she could have gone through to describe what you did to her. It also saved the State time and money that could have been spent in running a trial to establish your guilt. 

However, when your age and the fact that you are married with children is compared with that of the victim this factor also operates against you. There is no dispute that the victim was a girl under the age of 16. Even if you did not know her age, the victim’s physical appearance failed to give me the impression that she was of such an appearance that a grown up and father of 6 children could think that the victim was ready or of such an age to be sexually known. Yet you did. 

Next, your family and that of the victim live in the same area, Labu Camp. From the material on file, it is also clear that, the children in the area including, the victim played together. Although it is not clearly stated, I would like to think that she might have even been a playmate or friend of your own children. You could therefore have been looked upon as an uncle or someone the children could trust and expect nothing bad from you. So when you offered the victim the K20.00 on the first occasion and lured her into your house she just followed, until you made your intentions know to her once you were with her in the bedroom. By that time, she had already been led to wanting the money and to receive it that, she could not resist your demand for sex before giving her the money. That was the start of some more sexual intercourse with the victim all for cash. This could have continued for a long time if you had not been caught. 

This discloses two additional aggravating factors against you. First, you destroyed the de factor trust the victim and her parents and relatives placed in you as a father in the camp. Children and people usually and ought to trust, respect and protect each other in the kind of community you live in. Indeed traditional PNG is more communal and people do things collectively and jointly. Children in the communities depend on the members of their immediate communities for protection from any form of attack from outside their communities. They do not expect people like you to abuse them. At the same time, parents do not expect unexpected attacks of whatever form from within their communities. Therefore, most children are found roaming around freely and most of the time not mined by their parents. I am sure the parents expected nothing of this things happening until you were caught, thanks to the inquisitive eyes of other members of your community. 

What you did calls into serious question the security that most people find in their respective communities. Instead of living in peace and harmony they will be living in fear and distrust of each other. Parents may not be able to devote their time their respective duties for fear of their children being attacked and or seriously being abused and exploited. This would no doubt lead to a break down of our communities and societies.

The other factor is that you introduce a young girl to the business of sex for cash. It is called prostitution. Prostitution is not legal in our country, but some sectors of our country are into it illegally. Young girls and even mothers are getting involved in this kind of business. Comes with this is the risks of getting and spreading the dreadful disease like AIDS which kills, which is spreading like wild fire. So when you did what you did, you exposed your victim to such serious risks. Further, it is not clear whether the victim had being known sexually before you did. In the absence of any evidence to the contrary, I infer from her age and appearance that she was not. Therefore, I find that you might have destroyed her virginity. Unless she is able to find a man who will marry her despite what you have done to her, you have reined her changes of a future good marriage, a family and children. Given our kind of society, she might even be the subject of ridicule. 

Recognizing the vulnerability of children, there has been a considerable amount of public awareness one the issue of child abuse. There a numerous international co-operations aimed at ridding the world of people who a intent of exploiting and abusing children. Even if there were no such co-operations it is a normal human behaviour to protect, the young, the old and the disabled especially in most of our country’s societies. Only, one who is not inclined to doing that is abnormal. Going by the evidence in this case and more particularly the repetition of your exploitation of the victim shows you have an abnormal taste. Therefore, you need to be locked away for the protection of the victim and the other children, particularly girls in the community.

You had and still have a wife to whom you could have turned to for your sexual desires instead of picking on a vulnerable little child. Upon my asking you, you said that you could not do that because your wife was with a small baby. But that was no license to turn against a vulnerable young girl. You could have waited for the appropriate time to have that desire met by you wife or if you could not wait that look you could have taken some contraceptive measures including the use of a condom. There is no evidence of you attempting any of this. 

Having regard to all of the above, I find that this is one of those case that falls in the third category of unlawful carnal knowledge under s. 216 and it is the worse of its kind. This is so, having regard to the risks high lighted above and the international efforts for the protection of children. I therefore consider it appropriate that, you should be given the prescribe maximum of 5 years. This is to serve both as a personal and general deterrence against would offenders. I order that you serve the term of 5 years in hard labour at Boram CIS, less the 5 months and 6 days you have already spent in custody awaiting your trial,
________________________________________________________________________
Lawyers for the State:				The Public Prosecutor
Lawyers for the Prisoner:			The Public Solicitor