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State v Mea [2018] PGNC 572; N7749 (22 November 2018)

N7749

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1304 OF 2018

THE STATE

V

PAUL MEA

Kerema: Koeget, J
2018:15^th & 22^nd November

CRIMINAL LAW- Indictable offence – Sexual Penetration of a female child under the age of 16 years – Criminal Code Act (as amended) – conviction after a short trial – Exercise of discretionary powers of Court under Section 19 of the Criminal Code Act

CRIMINAL LAW – Evidence of Sexual Penetration of a child under the age of 16 years – breach of trust – victim willingly participated in the act so punitive deterrent sentence not warranted in the circumstances of the case.

Facts

On the afternoon of 14^th February 2017 between two o’clock and two thirty o’clock, the victim Debbie Mundi was at DPI compound in Kerema town. The accused Paul Mea was at the same location and called her to come over to him. She walked to the accused and both held discussion and the victim invited him to follow her to the nearby bushes. So he walked to her followed by another person named Henry. The accused left but return shortly to the location where the victim waited.

The victim removed her trousers and pants and laid down face up on the ground. The accused too removed his clothes and laid on top of the victim, inserted his penis into her vagina and had sex. The victim at that time was a child under the age of 16 years.

Held:

(1) The defence of consent is inapplicable in this case because she is a child under the age of 16 years.

(2) The victim willingly participated in the act of sexual intercourse so it is a mitigating factor and so imposition of a deterrent sentence is not warranted in the circumstances of the case.

Counsel:

D. Mark, for the State
L. Zauya, for Accused

Trial

22^nd November, 2018

1. KOEGET AJ: INTRODUCTION: The accused is charged with one count of Sexual Penetration of a female child under the age of sixteen (16) years. The charge is brought pursuant to section 229A (1) of the Criminal Code Act (as amended).

2. The accused pleaded not guilty to the charge so a short trial was conducted. The trial was conducted by tendering of witness statements by the prosecution with consent of Defence counsel.

Evidence

3. The State tendered the following documents in the trial by consent:

- Record of Interview dated 17^th February 2017. Pidgin version (marked exhibit “A”)

- English translation of record of interview dated 20^th February 2017 (marked exhibit “B”).

- Statement of Munenepe Rauke dated 24^th February 2017 (marked exhibit “C”).
- Statement of Hepo Kini dated 21^st February 2017 (marked exhibit “D”).

- Statement of Maggie Munid dated 1^st March 2017 (marked exhibit “E”).

- Statement of Ahigie Nohawa dated 1^st March 2017 (marked exhibit “F”).

- Statement of Constable Iere dated 6^th May 2017 (marked exhibit “G”).

- Statement of Debbie Mundie dated 21^st February 2017 (marked exhibit “H”).

4. The only oral evidence was that of Dr. Michael Jalam, a senior medical officer and a surgeon employed by Department of Heath at Kerema General Hospital. He was called to explain to the court the content of the medical report on the examination of the victim by a colleague who is now a deceased.

5. The doctor explained that in the medical report the doctor stated that “there were sticky fluid seen in the vagina and genitalia of the victim”. The fluid could have been from the victim’s vaginal fluid released when she was sexually aroused or it could have been semen from the alleged intercourse.

6. The doctor stated that a sperm cell can be alive in the vagina of a female for 72 hours and after that, it dies and is absorbed by the body. In this case the examination was conducted 4 days after the alleged rape so spermatozoa was not present.

7. The victim was unco-operative so no vaginal examination was conducted for the doctor to establish if there was sexual intercourse.

8. The medical report concludes that the victim is not a virgin anymore. So the State closed its case.

9. The accused on the other hand elected to remain mute so gave no oral evidence in defence. However, he relied on his answers to questions in the record of interview. I perused the record of interview and note that at the commencement of the record of interview, the accused said he was at Murua sleeping under the mango tree. The location is approximately 10 kilometres away from the alleged crime scene so a defence of alibi was raised then.

10. However, further in the record of interview particularly in answers to the questions he said he was at DPI shed in Kerema town. He admitted being with the victim at the old DPI shed and he squeezed the victim’s breast but denied having sex with her.

11. He admitted sighting the brother and sister of the victim so he fled as he feared they will assault him. He also admits that his friend Henry was present with him and the victim.

Analysis of the evidence

12. The victim’s statement is well supported by evidence of the brother and sister. Such evidence are further supported by the medical report and the accused’s own admissions in the record of interview. The State adduced credible evidence in the trial so I believe the account of the victim and her witnesses.

13. On the other hand, the accused gave untruthful account but on his own admissions put himself at the location where the alleged offence was committed at the relevant time. He is an untruthful witness.

Verdict

14. The elements of the offence are established and State has proven its case against the accused beyond reasonable doubt. The accused is found guilty of the offence as charged.

PERSONAL PARTICULARS

16. The prisoner is 23 years of age and is a bachelor. He is unemployed and has no formal education. He has no brothers and sisters. He is a subsistence gardener. He has no prior convictions. This is the first time he has been in trouble.

AGGRAVATING FACTORS

17. Although both agreed to have sex that day, the victim was aged 14 years at that time. She was a child under section 229A of the Criminal Code Act (as amened).

MITIGATING FACTORS

18. The prisoner is a first time offender. No weapons were used to frighten the victim. The victim suffered no permanent physical injuries. She is well and experience no physical disabilities. She is a willing participant to the act of sexual intercourse.

The age gap between the prisoner and the victim is 9 years and should not be treated as serious factor.

SENTENCE

19. Both prisoner and the victim agreed to engage in sex that day at DPI shed in Kerema town. There was no threat of force or violence offered by the prisoner. No weapons were used to threaten or intimidate the victim.

20. The maximum sentence for such offence is imprisonment for a period not exceeding 12 years. In this case in the exercise of court’s discretionary powers under section 19 of the Criminal Code Act, a lesser sentence can be imposed because the victim is a willing participant to the act of sexual intercourse.

21. The prisoner is sentenced to 7 years in hard labour. The pre-trial custodial period of 4 months, 2 weeks and 3 days are deducted. He is to serve the balance of 6 years, 7 months, 2 weeks and 4 days at Bomana Corrective Institutional Services.
______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused