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State v Aibuka [2006] PGNC 227; N3080 (14 September 2006)

N3080

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.76 OF 2006

THE STATE

V

BUKA AIBUKA

Kokopo: Lenalia, J.

2006: 8 & 14 September

CRIMINAL LAW– Sexual offences – Sexual penetration of minor –
Aggravations – Under age victim – Age 16 years – Penetration of minor and underage child – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.s.229 (A) (2)

CRIMINAL LAW – Sexual offence – Penetration of child under 16 years
– Substantial age differences – Pattern of abuse - Aggravation – Consent no defence – Punitive and deterrent sentence called for – Sentence of 9 years appropriate.

Cases cited.

The State v Penias Mokei (2004) N2635
The State v Mitige Neheya [1988-89] PNGLR 174
State v Thomas Angup (2005) CR N0 414 of 2005
The State v Peter Lare (2004) N2557
The State v David Duna Burua (13.7.06) CR.N0.829 of 2005
The State v Binga Thomas (20050) N2828

Counsel:

Mr. L. Rangan, for the State
Mr. P. Yange, for the Accused

14 September, 2006.

1. LENALIA, J: The accused pleaded guilty to two counts of sexual penetration pursuant to s.229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. At the time of the offences, the victim was at the age of 14 years, the age limit below 16 years stipulated in the section charged.

FACTS

2. The brief circumstances of these two cases before the court are that, on 12th and 14th of August 2005, at Vunaling Plantation and Malakuna No.4 village, the accused sexually penetrated the victim in two separate locations on those two different days. On the first occasion, the accused and his wife went to the victim's parent's house and took the victim Mesehila Paul to accompany them to the plantation to collect germinated coconuts for purposes of cocking cassava.

3. After arriving in the plantation, the accused wife left leaving the accused and victim alone. The accused and victim started to collect coconuts and then continued to husk them. In the course of husking the germinated nuts, the accused pushed the victim's trousers down to the ground and sexually penetrated her. After he released his sperm, they rested a while then he penetrated her the second time. Before they left for the village, the accused warned the victim not to tell her parents or anyone.

The second act of penetration took place two days after the first one. The State alleges that, on Sunday 14th of August, the accused and his family invited the victim to their house at the Vunaling plantation so she could collect some cooked food for her parents. When they got to the accused's house, he sent his wife and their son away. He took the victim into the house and sexually penetrated her.

ADDRESSES

4. On the accused's statement in allocutus, he did not show any remorse for what he did to the young girl. He instead said, the victim is to be his second wife. Further to that, he added that, the victim would come around to his house to look for him and she was his girl friend. He said because his wife is barren, he plans to marry the victim as his N0.2 wife so he can raise children from her.

5. I had the privilege of hearing lawyers on their addresses of submission. For the accused Mr. Yange file a detailed written submission on the status of the law on point. He cited quite a number cases which I shall refer to some of them a little later. Mr. Rangan of counsel fro the prosecution submitted that any sentence imposed should reflect the serious nature of the offence particularly in terms of under age children.

LAW.

6. The prisoner is charged under s.229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. That section states that, a person who has sexual penetration with a child under the age of 16 years is guilty of a crime and is liable to an imprisonment term of not more than 25 years.

7. Sexual abuse of young children is very prevalent in this province and elsewhere. The recent sentencing trend taken by Judges of this Court is increasing because, some people like the accused in the current case cannot respect rights of young girls. The accused now says that, he wants to marry the victim and take her as a second wife is totally nonsensical. At the time the accused committed this offence he was age 40 while the victim was only 14 years.

8. The age disparity between actors in sexual penetration cases is what the new law seeks to protect. The younger the victim is the more severe the penalty should be. The case of The State v Mitige Neheya [1988-89] PNGLR 174 establishes that where there is a substantial age difference between the victim and the accused, it is an aggravation. The reason given by the accused that, due to the inability of his wife to produce children he wants to take the victim for his second wife so that, he can have children.

9. The argument by the accused does not make sense to me. The accused cannot suppress the victim's right of choices of a young husband who will have a loving care for her rather than having her as a factory for human production or an object or instrument for that purpose. This concept goes against the grains of the Constitution which provides for equality and participation. Article 1 of the Preamble of the Constitution states that each person is 'to be dynamically involved in the process of freeing himself or herself from' all forms of 'domination or oppression' so that each person must have the opportunity to develop himself or herself as a whole person in their relationship with other people.

10. The Courts primary concern is to protect the lives of very young children against exposure to premature sex and the burden of caring for unwanted babies which may result. Even our women must be protected against unwarranted sex forced upon them by men who think they get way with receiving light sentences. Our children need to be treated with all courtesy due to them.

11. As can be seen from sentences imposed for sexual offences in cases such as The State v Peter Lare (2004) N2557, The Sate v Penias Moke (N0.2) (2004) N2635, The Sate v Thomas Angup (2005) N2380, The State v Binga Thomas (2005) N2828, The Sate v David Duna Burua (13.7.06) CR.N0.829 of 2005 and many more cases cited by Mr. Yange of counsel for the accused, that sentences for sexual crimes are very high. This shows how serious sexual penetration of minors is.

IMPACT STATEMENT OF VICTIM, S.21A

12. When counsels were addressing the court on sentence, Mr. Rangan directed the court's attention to an impact statement filed by the victim's parents before the accused was arraigned and pleaded to the two charges. Mr. Rangan submitted that, the court should consider such statements on sentence. Mr. Yange for the accused submitted that the court should not consider such statement since such statements were not filed prior to the accused pleading to the charges. I reject that part of Mr. Yange's submission as I note the statement had been filed before the date the accused entered guilty pleas.

13. The effect of s.21A of the Act is that, on sentence a court is entitled to consider a statement prepared and filed describing the harm done or loss suffered by the victim arising from the commission of the offence. The above Section states:

"221A. VICTIM IMPACT STATEMENTS.

(1) For the purposes of determining the sentence to be imposed on an offender, the court shall consider any statement that may have been prepared in accordance with Subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

(2) A statement referred to in Subsection (1) must be –

(a) prepared in writing in the form and in accordance with the procedures established for that purpose; and

(b) file with the court.

(3) A statement of the victim of an offence prepared and filed in accordance with Subsection (2) does not prevent the court from considering any other evidence concerning any victim of the offence for the purposes of determining the sentence to be imposed on the offender.

(4) For the purposes of this section, "victim" in relation to any offence -

(a) the person to whom harm was done or who suffered physical or emotional loss as the result of the commission of the offence; and

(b) where the person described in Paragraph (a) is dead, hill or otherwise incapable of making a statement referred to in Subsection (1), includes the spouse or any other relative of that person, anyone who has in law or fact the custody of that person or is responsible for the case or support of that person or dependent on that person."

14. Before the accused is sentenced, I must say, I have considered all submissions, first the accused statement made pursuant to s.593 of the Criminal Code, then counsels addresses on sentence and the statements filed pursuant to s.21A of the Criminal Code (Sexual Offences and Crimes Against Children) Act. I have considered the accused guilty pleas to the two serious charges.

15. The impact statements filed by the biological mother and father of the victim raise relevant issues faced by most fathers and mothers of victims who are affected by sexual abuse. Both parents have suffered much sufferings and pain, emotional stress and ridicule. According to the mother's statement, the victim may have given birth to a child, the result of the relationship had with the accused.

16. Taking all mitigations together on one hand and the serious nature of the offence of sexual penetration and considering the sentencing trend so far adopted by Judges of the National Court, for Count 1, the accused is sentenced to 12 years imprisonment. For Count 2, he is sentenced to 9 years in hard labour, to be served concurrently on Count N0.1. The custody period shall be deducted. He will serve the balance.

_____________________

The Public Prosecutor: Lawyer for the Staten
Paul Paraka Lawyers: Lawyer for Accused