N9704

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 550 OF 2021

BETWEEN:
THE STATE

AND:
RYAN SOM

Vanimo:  Rei, AJ
2021:  14th, 15th & 27th September

CRIMINAL LAW – Plea of Guilty - Sexual penetration of a child under 16 years of age – a child aged 12 years – force used on two occasions – male person 25 – 26 years of age.

Cases Cited:

The State -v- Rudy Solo N3165
The State -v- Junior Bob Namah [2021] N9157
The State -v- Ben Sakias [2011] N4238
The State -v- Kuyap Toki Jonathan [2008] N3315
The State -v- Sangep [2012] N4684

Legislations:

Section 229D of the Criminal Code Act
Section 223(1) of the Criminal Code Act

Counsel:	
Ms. D. Ambuk, for the State
Mr. P. Moses, for the Defendant

27th September, 2021

1.	REI AJ: INTRODUCTION: The State presented an indictment on the 15th of September alleging that the accused sexually penetrating a child on two (2) separate occasions who was his niece whose age was 12 years at the time of the offence.

2.	Two (2) separate and distinct charges of sexual penetration of a child was laid. The first took place on 15th February 2020 and the second act of sexual intercourse took place on the 6th May 2020.

3.	The accused was the uncle of the victim who was about 25 – 26 years of age.  The victim was niece of the accused.

4.	Being related to the victim by marriage the accused was placed in a position of trust.

5.	The acts of sexual penetration of the victim took place in the house belonging to the parents of the victim.

FACTS

6.	The undisputed facts of the case are that the victim attends the Vanimo Primary School and stays with her parents in their house located at Nuku Admin.

7.	On the day of 15th February 2020 after school, the victim went to the house and was resting in her bedroom when the accused went to the house and knocked on the door of the bedroom in which the victim was in under the pretext of asking for a charger to be given to him to charge his telephone.

8.	At that response the prisoner grabbed the victim by the neck, threw her to the floor, removed her clothes and he removed his clothes and sexually penetrated her.

9.	In the process, he strangled the victim by the neck until he ejaculated.

10.	When he was done, the prisoner threatened the victim by telling her that if she tells anyone, he will kill her.

11.	The second act of sexual penetration of the victim took place on the 6th of May 2020.

12.	Again, the prisoner, after satisfying himself of his evil desire, threatened the child victim that he would kill her if she said anything about the affair to anybody including her parents or the Police.

13.	About 3-4 months after those incidents occurred, the mother of the victim noticed changes in the structure or body of the victim and being the mother, she suspected pregnancy but could not believe it given the age of the child to be 12 years.

14.	Her suspicious was confirmed when she took the victim to the hospital for gynecological tests to be done whereupon it was confirmed the child was pregnant for 17 weeks.

15.	Upon further interrogations by her mother the victim, a child of 12 years of age, admitted that the prisoner had sexual relationship with her by pushing her penis into her vagina on 2 occasions resulting in her untimely pregnancy.

16.	The prisoner was reported to the Police and was arrested on the 19th of July 2020.

ARRAIGNMENT

17.	The indictment containing two (2) charges of sexual penetration of a 12 year old child was administered.

18.	The charges and facts thereto were read to the prisoner.

19.	When asked how he pleads to those two (2) charges, he said he enters a plea of guilty.

20.	Counsel for the prisoner confirmed that the plea (of guilty) was consistent with his instructions.

21.	A careful perusal of the committal file on the matter by myself also confirmed the plea of guilty.

22.	Plea of guilty was confirmed and the accused was found guilty as charged.

ALLOCUTUS

23.	The prisoner gave evidence on his allocutus saying that he is sorry for what he did.

24.	He asked the Court to be lenient on his sentence because he is newly married and asked if he can be given a non-custodial sentence to look after his wife and the young child.

ANTECEDENTS

25.	The prisoner has no previous criminal record.

MITIGATING FACTORS

26.	Mitigating factors outweigh aggravating factors.

•	Early Plea of guilt
•	No Prior Conviction 
•	First time youthful offender
•	Remorseful in allocutus
•	Acted alone
•	The offender did not cause further trouble to the victim
•	The victim did not sustain any serious injury
•	The victim and the prisoner consented to having sexual intercourse.  The sexual affair was not reported until the victim became pregnant.  Reference is made to the Confessional Statement of the offender and the sentiments that are raised by the Nelson Kolei in the PSR.

AGGRAVATING FACTORS

•	The victim was below the age of 16 years
•	The victim become pregnant at an early stage and gave birth
•	Prevalence of the offence
•	Age gap of 8 years.  Offender was 20 years and the victim was 12 years
•	The victim was sexually penetrated by the offender more than once over a period of 3 months.

SENTENCING

27.	Recently, I handed down a decision in this circuit in the reported case of The State -v- Junior Bob Namah [2021] N9157.

28.	I then referred to the case of The State -v- Rudy Solo N3165 which case was cited by His Honour Kandakasi J., as he then was, which case contains an excellent summary of sentences involved in sexual penetration of a child case.

29.	His Honour Kandakasi J. then referred to and relied on the decision of His Honour Cannings J. 

30.	The facts in The State -v- Solo (supra) and The State -v- Junior Bob Namah [2021] N9157, are somewhat similar – victims almost reaching the age of 16 years, there was evidence of courtship and to some extent voluntary acts resulting in consensual sex.

31.	The prisoners were given part custodial (The State -v- Solo) and full non-custodial with conditions to apply (The State -v- Junior Bob Namah [2021] N9157.

32.	In the case of The State -v- Junior Bob Namah [2021] N9157, I said that these kinds of offences fall within 3 broad categories and I quote:

“The sentences passed in these types of case show three (3) extremes.  The first  is the category of offenders who were in a position of trust; close relatives enticing young children to enter into sexual intercourse.  The other extreme is the category where people use violence to satisfy their evil desire whether the victim is related or that he is in a position of trust or not or is a stranger.

The third extreme category involves what is described as consensual sexual intercourse where the child voluntarily agrees to have sexual intercourse with an adult male despite of her being underage.”

33.	Applying these principles here this is a worst case scenario where the prisoner was placed in a position of trust who used force to sexually penetrate the vagina of the victim on two occasions resulting in pregnancy and a child born.  Although he was not the father, he was the uncle and expected to show parental responsibility toward the victim.

34.	While he prays that he be given a non-custodial sentence and the PSR confirms this, I am reluctant to give a non-custodial sentence because the future of a young girl has been forever destroyed.  She will be constantly stigmatized by her peers to have had sex while under the age of 16 years with a man whose age was twice as old as herself.

35.	Children are the spine of a nation who ought to be encouraged to excel in life so that whatever special attributes they have, be developed and used in nation building.  I do not know what special attributes the victim in the instant has.  But as a child striving to learn and become a responsible citizen of this country, adults including the prisoner should feel responsible to help her.

36.	Every child must be given an opportunity to be educated and must develop into becoming good citizens of this country.

37.	The actions of the prisoner in this case have forever destroyed the future of the child victim.  Instead of helping her to become a responsible citizen of this country, he destroyed her, as the uncle of the victim.

38.	The State -v- Ben Sakias [2011] N4238: The offender in this case pleaded guilty to the offence of persistent sexual abuse.  He was 28 years old and the victim was 14 years old with 14 years age difference between the both of them.  There was a breach of trust since the Offender was the victim’s uncle and the victim got pregnant as a result of the abuse.  He was sentenced to 12 years imprisonment.

39.	The State -v- Kuyap Toki Jonathan [2008] N3315: The offender pleaded guilty to the offence of persistent abuse of a child under section 229D of the Criminal Code Act.  The offender was cared for by the family of the victim.  The offender was 21 years old at the time of the incidents.  The victim was 13 years old.  There is an 8 year difference in their ages.  The Court found that the offender had on four (4) different occasions, with the use of force and weapons penetrated the victim’s vagina with his penis.  The victim fell pregnant as a result of these sexual encounters.  The Court sentenced the prisoner to 18 years imprisonment less the time he had spent in jail.

40.	The State -v- Sangep [2012] N4684: Offender is a 50 year old man who pleaded guilty to one count of incest, contrary to Section 223(1) of the Criminal Code.  He had sex with his younger sister’s 16-year-old daughter, his niece.  The offence was committed at Garup village in the Sumkar District of Madang Province in June 2011.  The offender followed his niece to the river where she was preparing to wash dishes.  He grabbed her from behind, took control of her and without her consent penetrated her vagina with his penis, and did that three times in one day.  This caused her to become pregnant and she has given birth.  She did not immediately tell anyone what happened as the offender had threatened to harm her if she reported him but when it was clear that she was pregnant she was asked questions, which led to her telling her parents that it was her uncle who was responsible.
 
41.	This case does not involve the father of the victim.  It involves the uncle of the victim who sexually penetrated the child by inserting his penis into her vagina without her consent.

42.	Had it been the father who committed this offence, the sentence could have been higher.

43.	I have considered the sentences cited herein in the cases previously decided and given that sentences range between 4 years to 28 years, I consider that the prisoner be imprisoned for 12 years.

44.	The sentence of 12 years is to be served concurrently on the two counts of sexual penetration of the child.

45.	Out of the 12 years to be served concurrently on the two (2) counts, a total of 1 year 4 months be deducted for the time spent in remand.

46.	Prisoner shall serve 10 years 8 months I.H.L

47.	Prisoner shall serve his sentence at Beon, CIS in Madang.
______________________________________________________________
Public Prosecutor:	Lawyer for the State
State Solicitor: Lawyer for the Defendants