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State v Kevin (No 4) [2022] PGNC 233; N9675 (10 June 2022)

N9675


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR No. 838 OF 2019


THE STATE

v
ABE KEVIN
(No 4)


Kimbe: Numapo J
2022: 27th May & 10th June.


CRIMINAL LAW – Sentencing – Sexual Penetration of a Child under the age of 12 - s 229A (1) (2) Criminal Code (Sexual Offences and Crimes Against Children) Act 2002– Serious aggravating factors & circumstances - Mitigating factors rendered insignificant – Maximum penalty imposed.


Held:


(i) Sentence imposed on sexual deviants, sadists and predators must reflect the seriousness of the offence and society’s demands for tougher penalties on such people.

(ii) This was a heinous and despicable crime committed on an innocent child.

(iii) The aggravating factors and circumstances far outweighs the mitigating factors rendering them completely insignificant.

(iv) The big age gap between the offender and the victim makes it an aggravating sexual penetration.

(v) Victim died from injuries sustained partly from the sexual penetration and partly from drowning.

(vi) Prisoner is sentenced to life imprisonment.

Cases Cited


Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92
Kalabus v The State [1988] PGSC 17; [1988-89] PNGLR 193
Aloises Peter Irobo Kovei v The State (2001) SC676
State v Bernard Hagei (2005) N2913
State v Benjamin Wakupa [2012] PGNC 229; N4783
State v Clarence Tema Mongi (2007) N3259


Counsel:


N. Pare, for the State
B. Takua, for the Defence


SENTENCE

10th June,2022


  1. NUMAPO J: This is a decision on sentence. The prisoner ABE KEVIN of Dumun village, Sine Sine-Yonggomugl, Simbu Province was found guilty following a trial on one count of Sexual Penetration of a child aged 12 years old pursuant to section 229A (1) (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.The victim was six (6) years old.
  2. A few days after he was convicted the prisoner escaped from custody and is still at large. A bench warrant has been issued for his arrest and is still pending. With the concurrence of Counsels, the decision on sentence is handed down in absentia.
    1. BRIEF FACTS
  3. The brief facts were that; on the 25th February, 2019 between 3pm and 3:30pm the deceased Jenny Kulapai aged 6 years old and two other small girls Dyane and Natalie of the same age were swimming at Kamarere creek at Rigula NBPOL Oil Palm Mini-Estate Compound in West New Britain Province when the accused approached them and chased them. Dyane and Natalie ran away but the deceased was caught by the accused and taken into the bushes in the oil palm plantation and sexually penetrated her by inserting his penis into her vagina. After penetrating her, the accused noticed that the victim was bleeding profusely from her vagina and was in a lot of pain and crying. He then stepped on her neck to kill her. Victim was unconscious but still breathing. The accused took her to the creek and drowned her to death. Accused dug a hole beside the creek and covered her body up with sand, leaves and other debris. The body of the deceased was found the next day at the creek.
    1. MEDICAL REPORT
  4. The medical report stated that the deceased died of asphyxia due to drowning after been sexually penetrated. She had a torn hymen measuring about two centimetres radius. The vaginal opening was also covered with sand pebbles.
    1. CHARGE
  5. Section 229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002

229A. SEXUAL PENETRATION OF A CHILD


(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.


(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.
  1. AGGRAVATING AND MITIGATING FACTORS AND CIRCUMSTANCES
  1. The aggravating and mitigating factors and circumstances of the present case are as follows:
  2. Aggravating factors:
  3. Mitigating factors
  4. The mitigating factors were rendered completely insignificant by the aggravating factors and circumstances.
    1. APPROPRIATE CASE LAW PRECEDENCE
  5. Counsels cited a number of case law precedence to assist the Court in deciding an appropriate sentence for this case based on the current sentencing trend on Sexual Penetration of minors. I refer to them below:
  6. The Appellant appealed against sentence of life imprisonment following a conviction of rape. He took a 9 year old female from her house and raped and assaulted her in the circumstances suggesting sexual sadism. The victim later died from her injuries. The accused pleaded guilty and the trial judge, after finding that the case was one that fell into the worst type of category offence for which penalty should be reserved, sentenced him to life imprisonment. The court confirmed the sentence and dismissed the appeal.
  7. The appellant appealed against a sentence of life imprisonment following conviction after a trial for murder of a young girl after she was abducted and repeatedly raped by a group of men. She was killed after been raped. Her body was found in a drain few days later. The Supreme Court held that the trial judge has not erred in law when he found that the case fell under the worst type offence of murder. The appeal was dismissed and the sentenced confirmed.
  8. The prisoner was convicted and sentenced to life imprisonment after he was found guilty of murdering a young female student after raping her. The victim went to get some food from her aunt and she was met on the small bush track near the village. The prisoner approached her, threatened her and sexually penetrated her. He told her not to tell her parents and or anyone about the rape. As the prisoner stood up to pull the zipper of his trouser up, the victim got up and ran towards the village naked with her clothes in her hands. The prisoner chased after her and caught up with her. He then knocked the victim to the ground and got a stick and hit the victim few times on the head and she died. Prisoner then hid the body under a rotten log and covered her with some dried leaves and dirt and returned to the village. Later that day a woman collecting firewood found the body of the deceased.
  9. The deceased, a young girl aged 12 years was sleeping alone in her house in the village. Between 1:00am to 2:00am, the prisoner on realizing that she was alone went to her house, broke down the door and entered the house. He threatened the deceased and sexually penetrated her. The victim struggled and put up a fight with the prisoner. She managed to run out of the house and started calling out for help. Realizing that this could attract the attention of the people, the prisoner chopped the victim with an axe he was carrying on her head and back. The deceased died as a result of the injuries she sustained from the attack. Prisoner was sentenced to life imprisonment.
  10. The prisoner was convicted and sentenced to death for wilfully murdering a 7 year old female contrary to section 299 of the Criminal Code. The prisoner met the deceased in the bush collecting galip nuts. He grabbed her and hit her on the head causing her to be unconscious. He twisted her neck that eventually led to her death. He then unsuccessfully tried to penetrate her vagina with his penis. She didn’t respond. He then proceeded onto sodomize her after engaging in other indecent acts. He hid the body of the deceased in a cave which was later discovered following a search. The court ruled that the circumstances warrants a maximum penalty.
    1. PRISONER’S BACKGROUND AND ALLOCUTUS
  11. The Pre-Sentence Report (PSR) appears unfavorable to the prisoner. The prisoner is 27 years and is unemployed and is not married. He was educated up to grade 3 and left school after that. He lives at Rigula Estate here in the West New Britain Province. His father passed away in February 2019 and he currently lives with his mother and two of his siblings.
  12. According to the Probation Officer, the prisoner showed no remorse for what he did. He refused to cooperate with the police and community to bring about lasting peace in the community. The prisoner was assessed to be of high risk and a potential danger to the community and considered unsuitable for probation. Prisoner is recommended for imprisonment.
    1. SENTENCING FACTORS IN SEXUAL OFFENCES
  13. Section 229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 prescribed two categories for the offence of Sexual Penetration. The first category is an imprisonment term of not exceeding 25 years if the child (victim) is under the age of 16 years pursuant to s. 229A (1) whilst the second category is imprisonment for life if the victim is under the age of 12 years pursuant to s. 229A (2). In the present case the victim is 6 years old hence, it falls under the second category.
  14. The age of the victim is an important consideration when deciding on the type of punishment to impose. The legislative implication on punishment is that the younger the victim the higher the sentence. The bigger the age gap the higher the penalty. Acts of threats and violence makes it an aggravated sexual penetration. All these factors are taken into consideration in deciding an appropriate sentence that fits the crime.
  15. The Supreme Court in Goli Golu v The State [1979] PNGLR 653 held that maximum penalty is reserved for worst type offences. This was a ruling on a wilful murder case which eventually became trite law and apply to other offences as well. See also: Avia Aihi v The State (No 3) [1982] PNGLR 92.
  16. In their respective submissions on sentence, both the prosecution and the defence submitted that the present case falls under the category of worst type offences and urged the court to consider a sentence of between 25 years to life imprisonment. Although, defence had not asked the court to exercise its discretion under s 19 of the Criminal Code to impose a lesser sentence, I considered it necessary to do so nonetheless. It is my considered opinion after having considered carefully the factual circumstances of the case that justice will not be done to the case if a lesser sentence is imposed. The punishment imposed must not only reflect the seriousness of the offence but moreso, to serve as a strong deterrence so that it is not repeated again. For this reason, it is not too difficult to see why a long term of imprisonment is warranted.
    1. PRESENT CASE
  17. Sexual penetration of underage girls is a serious offence and therefore, the sentence imposed must reflect the society’s demands for tougher penalties on sexual deviants, sadists and predators who prey on young vulnerable children. Apart from it being unlawful, it is also an immoral act that goes against the accepted standard of decency and societal norms and values on human dignity. All persons irrespective of their age are worthy of respect for the simple reason that they are human beings.
  18. The enormity of the crime is apparent from its facts. This was a heinous and despicable crime committed on an innocent child with no apparent reasons at all. The horrific nature of the crime easily places it in the category of worst offences. Any right-minded member of the society would no doubt, be appalled and angry about it.
  19. According to the post mortem report, the cause of death was hemorrhagic shock and asphyxia due to injury caused to the vagina. There is also suffocation by drowning. Victim was killed before she was buried near the creek. The photographs showed brutal and substantial damage done to the victim’s body and vagina. She suffered from a torn hymen and vagina measuring about two centimetres in radius. She suffered horrendous injuries and bled profusely which eventually led to her death. Of all the sexual penetration cases of minors I have dealt with over the years, this is probably the most horrific of all. The prisoner is clearly a person with a sick mind. To describe his behaviour as animalistic is an understatement.
  20. In considering the sentencing principles, I am of the view that incarceration would be the most appropriate form of punishment in this case. By sending him to prison it would serve as a deterrence to both the prisoner himself and others who might have to think twice before committing similar offences. Secondly, it would protect the community from such misplaced and evil-minded individuals like the prisoner so that young girls and other women can feel safe. Thirdly, the prisoner must be appropriately punished for his wrong-doing, and finally, by imprisoning him, it would enable the prisoner to undergo some rehabilitation program including psychiatric evaluation and treatment.
    1. DECISION

Orders accordingly.
__________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence


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