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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR.NO.1453 OF 2014
THE STATE
V
ALOIS PADIK (N0.3)
Kokopo: Lenalia J.
2016: 8th, 11th, 14th, 21st 22nd March& 3rd May
CRIMINAL LAW – Sexual offence – Sexual penetration of victim the age of 12 years – Sentence after finding of guilty – Criminal Code (Sexual Offences and Crimes Against Children) Act section 229D (6).
CRIMINAL LAW – Breach of trust– Victim daughter of younger brother of the prisoner – Serious breach of trust, authority
and dependency – Deterrent penalty should be imposed – Sentence of 20 years imposed.
Cases cited:
The State v Biason Benson Samson (2005) N2799
The State v Kuyaps Toki Jonathan (2008) N3315
The State v Kuyaps Toki Jonathan (2008) N3315
The State v MitigeNeheya [1988-89] PNGLR 174
The State-v-Paul Wakara (19.9.06) Cr.No.914 0f 2006
The State-v-PenniasMokei (No 2) (2004) N2635
The State-v-Peter Lare (2004) N2557
Counsel:
Mr. L. Rangan, for the State
MR. P.Kaluwin, for the Accused
3rd May, 2016
1. LENALIA J: The prisoner was found guilty on the charge of persistent sexual abuse of the victim who was at the age of 12 years. This is an offence under s.229D (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.
2. The prisoner comes from Bitavavar village, Kokopo/Vunamami Local Level Government, Kokopo District. The evidence upon which he
was found guilty is that, the victim of this case Ialur Alois was at the age of 11 years when the offence the prisoner committed
the offence against her. The victim recalled that on a date in July 2014 at night, she walked out from the family house to fetch
water. On her way, she met the offender.
3. The prisoner asked her if he could have sex with her. She refused. On hearing this, he lifted her and carried her to the nearby toilet. While still standing, he pulled his erected penis and ordered her to suck it. He made her lie down on the ground then pushed his penis into her vagina and sexually penetrated her through her vagina. She said, she felt great pain and she felt that the accused released his sperm into her private part.
4. The court found that, the prisoner repeated sex and sucking of his penis the second time and it is possible that the offender repeated abused the victim for over a period of time.
Pre-Sentence Report
5. The court read comments by the prisoner and his antecedents. He is married with three biological children and two adopted ones making a total of 5. The offender has never been employed previously. He commented that the charges were mad up against him to cover up another affair between Ms. IaGeorIlata and the Committee member Ronal Tamean.
6. The mother of the victim was interviewed. She confirmed that the prisoner sexually abused her daughters including the victim Alois Ialur. She confirmed that, Ialur addresses the prisoner as ‘uncle’. She wants 100 fathoms shell money and K1, 000.00 compensation to be paid to her and her daughters. The victim said, the prisoner had threatened her and wants the offender to be sent to jail for a long incarceration period.
Addresses on Sentence
7. The prisoner said in allocutus that, he did not commit the offence.
8. The defence counsel submitted the following mitigations for the court to consider of sentence, the prisoner’s previous good character as this is his first time to appear in this Court. Ms. Ainui submitted that the court should consider leniency on sentence.
Counsel asked the court for mercy.
9. Mr. Rangan addressed the court of the serious aggravations such as:
10. Counsel asked the court to consider a sentence that will deter this type of crime.
Applications of Law.
11. Persistent sexual abuse is an offence against s.229D (1) (6) of the Criminal Code Sexual Offences and Crimes Against Children) Act because, the act of sexual intercourse took place more than once.
12. As the prisoner heard at the introduction of this judgment, the court said, the maximum penalty provided for the crime he committed that is s.229D (6) is life imprisonment. There are a number of serious aggravationswhich are that the victim was under age. She was 11 years at the time the offender committed penetration of her. There was a big age difference. The offender was then age 53 years.
13. The amended portions of the Criminal Code on sexual offences prescribe various penalties according to what section the offender is indicted for. In case of the crime of sexual intercourse with breach of trust the prescribe penalty is life incarceration. This is because aggravations sexual penetration took place on two occasions. Further aggravations are that the prisoner abused his position of trust because, she is the daughter of the younger brother of the prisoner.
14. The National Court cases of The State v MitigeNeheya [1988-89] PNGLR 174 and that of The State v Biason Benson Samson (2005) N2799 Cannings; J restated a list of considerations for sentencing in The State-v-Pennias Mokei (No 2) (2004) N2635. They include the following:
(a) Is there only a small age difference between the offender and the &##160;;vi60im? tim?
(b) Is the victim not far under the age of 16 years?
(c) Was there consent?
(d) Was there only one offender?
(e) Did thender threng weap weapon anon and notd not use aggravated ҈palsicoleviolence?
(f) Did the offender cause physical injury and pass on a sexually transmitied de eastheo ictivictim?
) Wase a ronship ship of trof trust, ust, dependency or authority between the oerendd tan viceim or, if t if ther suchtionswas
it a &160; #160;  dt onn? (h(h) Was Was it an isolated incident?
(i) Did the offender give lf upr thedent?
(j) Did thendererate with the police in their investigations?
(l) Has the offendused further trouble to the victim or the victim’s 
<;&1600 family since the inc?
(n) Has the offender genuinely expressed remorse?
(o) Is this his firfence>
(q) Are there any other circumstances of the incident or the offendet ҈&ـwarrant mitigation of the hthe head sead sentenentence?
15. Considerations stated above are useful guidelines for consideration in sentencing for child sexual penetration cases. On the instant case, factors like there was a big age gap between the victim and the offender, the victim Ialur was 11 years, the prisoner threatened the victim not to reveal their affair and they are very closely related are very serious aggravations.
16. National Court Judges impose high penalties for breach of trust crimes like the current one. In The State-v-Peter Lare (2004) N2557, Kandakasi J; sentenced the prisoner to 20 years imprisonment for persistent sexual abuse of a 12 years. It was the case of persistent sexual abuse and there was a very big age difference between the victim and the offender.
17. In The State-v-Paul Wakara (19.9.06) Cr.No.914 0f 2006, the prisoner pleaded guilty to one count of a similar offence as the one before this court now. It was sex without the will of the victim while her little brother was made to wait outside their house. Some force was used to push the 10 year old girl down to the floor and thereafter forceful sexual intercourse took place. Though no injuries were detected she was found to have a torn hymen. He was sentenced to 10 years because of the force used and the trauma caused to the victim.
18. In Tabubil, in The State v Kuyaps Toki Jonathan (2008) N3315, the prisoner pleaded guilty to one count of persistent sexual abuse pursuant to s.229D (1) & (6) of the Act in breach of the relationship of trust. The offender in that case left his home village in the Telefomin area on the West Sepik Province and came and lived with that family on Wangbin Village, in Tabubil, Western Province.
19. Whilst being accommodated by that family, between July 2006 and January 2007, he committed 4 different acts of forceful sexual penetration of the couple’s small daughter then aged 13 years old. The circuit Judge, Kandakasi J sentenced the prisoner to 18 years.
20. In the case of The State v Paul Save (11.7.2014) Cr.No.1097 0f 2013, it was a case of abuse of trust, authority and dependency a case similar to the current case where the victim was a step-daughter of the offender. It was the case of repeated sexual penetration where the victim was abused from the age of 13 years. He was sentenced to 18 years.
21. On the instant case, I consider a sentence of 20 years appropriate. He is sentenced to 20 years imprisonment. The time spent in custody shall be reduced.
______________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.
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