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State v Yakai [2022] PGNC 292; N9711 (25 April 2022)

N9711

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1348 OF 2021

BETWEEN:
THE STATE

AND:
JOSHUA YAKAI

Vanimo: Rei, AJ
2022: 22^nd & 25^th April

CRIMINAL LAW – Practice and Procedure – sexual penetration of a child under 16 years of age – a male of 31 years of age – plea of guilty – custodial sentence of 15 years less time spent in custody – suspension of sentence – exercise of discretion – S.19 of the Criminal Code.

Cases Cited:

The State -v- Junior Bob Nama (2021) N9157
The State -v- Sebastian Mankia SC2199
The State -v- Tiama Esrom (2006) N3054
The State -v- David Awi (2016) N6563
The State -v- Paulus [2018] PGNC 350; N7339
The State -v- Jessie Chadrol (2011) N4648

Legislation:

S.19 & s299A (2) of the Criminal Code Act

Counsel:

Mr. G. Korei, for the State
Mr. P. Moses, for the Defence

25^th April, 2022

1. REI AJ: The accused Joshua Yakai was arrested and charged under Section 299A(2) of the Criminal Code which is a charge of sexual violence against children.

2. The accused was initially arraigned on the 8^th April 2022 in which he intended to enter a plea of guilty.

3. Some confusion arose resulting in the vacation of the initial arraignment.

4. Because of that confusion, the accused was rearraigned on 22^nd April 2022.

5. The charge laid under Section 299A(2) of the Criminal Code as appearing in the indictment reads:

“Joshua Yakai of Wakwoite Village, Aitape/Lumi District is charged that he, on the 13^th day of August 2021 at Wara Kongkong in Papua New Guinea sexually penetrated a child under the age of 16 years namely Julie Kevin, 10 years old by inserting his penis into her vagina.”

6. The charge was read to the accused in Court who was asked whether he understands the charge. He said he did.

7. The brief facts of the matter were put to him which are that on the 13^th of April 2022, the complainant Julie Kevin, a 10 year old girl attended at the trade store of the accused. The accused pulled her into his store and forced her into having sexual intercourse with her against her will.

8. The aunty of the complainant reported the matter to the Vanimo Police whereupon the accused was arrested and charged.

PLEA

9. When asked to plead to the charge, the accused entered a plea of guilty.

10. Mr. Moses confirmed that the plea was consistent with his instructions. A provisional plea of guilty was entered.

11. Upon perusal of the committal file, the statement of the complainant dated 16^th August 2021 confirmed that sexual intercourse did take place on 13^th August 2021 without her consent and that she was indeed forced.

12. This statement was corroborated by a medical report prepared by Dr. Michael Alua which is also dated the 11^th of August 2021.

CONVICTION

13. The accused was convicted of the offence of sexual penetration of a child on the 13^th of August 2021 at Wara Kongkong.

ANTECEDENTS

14. No prior conviction.

ALLOCUTUS

15. The prisoner said sorry to the victim and her parents. He also said sorry to the Court for taking its time.

MITIGATING FACTORS

16. The mitigating factors are:

* pleaded guilty to the charge thereby saving time and costs;

* showed remorse by saying sorry to the victim’s parents and relatives; and

* is a first time offender.

AGGRAVATING FACTORS

17. The aggravating factors are:-

* a very young girl of 10 years with an age difference of 20 to 21 years;

* continuous sexual penetration over a period of time by luring the victim with cash and gifts to have sexual intercourse;

* he (the prisoner) is a relative as first cousin to the victim and was living or residing in the house belonging to the parents of the victim resulting in breach of trust;

* victim is now stigmatized by her peer group and school mates; and

* he (the prisoner) appears to be a child sex predator.

PRE-SENTENCE REPORT (“PSR”)

18. Mr. Moses submitted that a PSR be presented to assist the Court in sentencing the prisoner.

19. This was done and a PSR was filed on Monday 25^th April 2022.

DECISION ON SENTENCE

20. I have read the written submissions filed by both Counsels and also heard oral submissions.

21. Sentences for sexual offences against children range from 10 years to 20 years.

22. Section 229A(2) provides for a sentence of life imprisonment. However, the Court is given wide discretionary powers under Section 19 of the Criminal Code to impose lesser sentences dependent on the peculiar facts and circumstances of each case.

23. I note in this case that a matured man of 31 years of age committed this offence involving a female child who was 21 years or so younger than him. I also note from the PSR that this continued for some times but the victim did not report the matter for fear of her life.

24. Having regard to precedent cases, a custodial sentence is appropriate.

25. The prisoner has entered a plea of guilty in this matter thus saving time and costs. He has expressed genuine remorse.

26. In the case of The State -v- Junior Bob Nama (2021) N9157, I said, at paragraphs 21, 22 & 23 as follows:

“In considering this issue in The State -v- Rudy Solo N3165 His Honour Kandakasi J. as he then was made reference to the range of sentences in The State -v- Eddy Trosty (10/9/94) N2681, The State -v- Peter Lare (20/05/04) N2557. The State -v- Thomas Angup (21/04/05) N2830 decided by Lay J, The State -v- John Ritsi Kutetoa (22/03/05) N2814 decided by Cannings J, citing the judgement of His Honour Kandakasi J. in The State -v- Paul Nelson (25/05/05) N2844.

“His Honour Kandakasi J. then made specific reference to the judgement of Cannings J. in The State -v- Paul Nelson (25/05/05) and stated:

“more recently, Cannings J, in my view has given an excellent summation and comparable table of nearly all of the cases thus far dealt with by the Court since the Amendments in 2002 for an offence under Section 229A of the CCA in his judgement in The State -v- Paul Nelson. That summation shows that sentences have ranged from as low as 2 years to 20 years. Those going beyond 2 years and 6 years have been in cases, where the offenders committed the offence in breach of an existing trust, there exists, serious aggravating injuries or actual violence is used to secure the commission of the offence.”

(emphasis added)

“I agree with His Honour Kandakasi J with his assessment of the law as to sentences to be imposed under Section 229A of the CCA.”

27. I also said in paragraph 25 and 26 that:

“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.”

28. The PSR states that the prisoner is a relative of the parents of the victim and that he was regarded as part of the family as a cousin brother to the victim and was residing in the same house.

29. Some degree of trust was placed on him to ensure the safety and welfare of the victim. The decision of the Supreme Court in Sebastian Mankia -v- The State SC2199 confirmed a sentence of 15 years on appeal because there was a serious breach of trust, authority and dependence of the victim on the prisoner; a sixty year old man who sexually penetrated the victim who at that time was 15 years of age.

30. This trust was seriously breached by the prisoner when he committed this offence.

31. The PSR speaks favourably for him. He is a good citizen and is therefore a proper candidate for probation and that this is his first encounter with the law. But the PSR contains statements from those interviewed that the prisoner has developed the habit of enticing young girls to have sexual intercourse with him, a sex predator.

32. The parents of the victim and relatives expect nothing other than incarceration. They do not want any form of compensation.

33. I do not consider that he should be put on probation because of the prevalence of the crime and that human society should not condone this type of offence.

34. In the case of The State -v- Junior Bob Namah (supra), I imposed a sentence of 5 years for reasons that the victim was 10 months shy of reaching the age of 16 years and that the sexual intercourses were consensual taking place over a period of time. The victim in this case is 10 years of age; a very tender young girl and the prisoner was 31 years when the offence was committed. She is 20 to 21 years younger. The PSR says that the victim is already affected by these events and is stigmatized by her peer group and school mates and feels out of place. This will remain with her for the rest of her life.

35. Mr. Moses referred me to cases which cases reflect almost the same facts. These are:

The State -v- Tiama Esrom (2006) N3054 Offender aged at time of offence charged with one count of sexual penetration – complainant, a girl, aged 13 – uncle/niece relationship – lack of consent – no weapons used or aggravated physical violence – offender cooperated with police – pleaded guilty – expressed remorse – no compensation attempted – first offender. A term of 10 years was imposed.

The State -v- David Awi (2016) N6563 Offender aged 24 at time of offence charged with one count of sexual penetration complainant, a girl, aged 6 – relationship of trust – presence of consent – no weapons used or aggravated physical violence – physical injury caused to child – violation of existing relationship of trust – offender cooperated with police – pleaded guilty – expressed remorse – first offender. A term of 10 years was imposed.

The State -v- Paulus (2018) PGNC 350; N7339 (20 June ]2018) – Offender aged 25 at time of offence charged with one count of sexual penetration – complainant, a girl, aged 8 – Breach of trust and violation of relationship – offender cooperated with police made early admissions – pleaded guilty – expressed remorse – no weapons was used – first offender. A term of 10 years was imposed.

36. Mr. Moses submitted that a custodial sentence of 10 years be imposed while Mr. Korei submitted a term of 15 years.

37. His Honour Batari J suggested in The State -v- Jessie Chadrol (2011) N4648, that:

“Where the victim is under 12 years or circumstances of aggravation like, extreme young age of the victim or breach of trust or persistent sexual penetration are present, a starting point of 15 years has been suggested by the Supreme Court in Stanley Sabiu -v- The State.

In my view, the proper approach is to consider a term within the range of sentences for aggravated sexual penetration. The range will be slightly higher than that for category one offences. I suggest a general range of 7 to 25 years. In extreme cases of seriousness with no mitigating factors; sentences from 25 years to life may be justified.”

38. In my view the prisoner be given custodial sentence of 10 years.

39. In the exercise of my discretion under Section 19 of the Criminal Code part of that sentence is to be suspended.

40. The Court therefore makes the following Order:

(i) the prisoner is to serve a custodial sentence of 10 years;
(ii) time spent in remand is to be deducted;
(iii) a period of 2 years is suspended from the head sentence; and
(iv) the balance of 8 years be served less time spent in gaol awaiting his trial.

_______________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendants