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State v Babia (No 2) [2023] PGNC 420; N10571 (10 November 2023)

N10571

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1439 OF 2022

THE STATE

V

DARREN BABIA
(No 2)

Vanimo: Miviri J
2023: 10^th November

CRIMINAL LAW – PRACTICE AND PROCEDURE – S229A (1)(2)(3) CCA sexual penetration under 12 years old – 6 years old victim – Denial Trial – Victim Sworn Evidence – Serious Sexual Allegation By Six (6) year Old Child – Against Accused Uncle – Serious Breach of Trust between Uncle & Nephew – One Incident Charge One Prior No Charged – Medical Report Injuries – Trauma of Trial – Victim Tainted for the Rest of His Life with Memory – Serious & Prevalent Offence – 20 years IHL minus Remand.

Facts

Prisoner took the complainant relative down to a secluded area where he told him to remove his trousers on the pretext to excrete, laid him on the ground inserted his penis into victim’s anus and had intercourse with him. He was 6 years old son of his cousin who sustained injuries as a result to his anus. Report made to the mother who took a medical report leading to the arrest of Accused.

Held
Well planned offence committed on a nephew 6 years old by a 24 year old man incurring injuries to anus, trauma of offence for life. Serious Breach of Trust warranting a strong punitive sentence of 20 years imprisonment IHL minus time on remand.

Cases Cited:
Lawrence Simbe v The State [1994] PNGLR 38
Kumbamong v State [2008] PGSC 51; SC1017
Goli Golu v The State [1979] PNGLR 653
John Elipa Kalabus v The State [1988] PGNC 120; N604
State v Kopun [2009] PGNC 292; N3871
State v Jonathan (No 2) [2009] PGNC 210; N3840
State v Lumou [2004] PGNC 107; N2684
Sabiu v State [2007] PGSC 24; SC866
State v Pupuka [2007] PGNC 168; N3184
State v Peter [2017] PGNC 49; N6672
State v Rome [2007] PGNC 215; N5048

Counsel:

F. Popeu, for the State
P. Moses & O. Himore, for the Defendant

SENTENCE

10^th November 2023

1. MIVIRI, J: This is the sentence after trial of Darren Babia of Lido, Vanimo Green, West Sepik Province who was indicted pursuant to section 229A (1), (2), (3) of the Criminal Code Act of sexual penetration of a minor under 12 years old.
   
2. He was the uncle of the complainant and so there was a very serious breach of trust authority and dependency because complainant looked up to the prisoner uncle on that occasion to protect him. To ensure that he was not abused or treated in the manner he was subjected to here. He being only 6 years old at that time. And he a 24-year-old man giving an age gap of 18 years difference. There will be times when parents as was the case here, leave children tender young ones to the care of relatives. And this is particularly vibrant in all human life all over the world. Papua New Guinea is no different, and Vanimo is no different including this situation at Lido here in Vanimo. Darren Babia would have endured pain to ensure 6-year-old complainant his nephew was never abused in the manner he endured upon here.
   
3. The evidence discloses an earlier conduct upon Lasa Lian Duni at the hands of the prisoner that is not the subject of a charge, but it has come out in the evidence that I have set out in my Judgement on trial. It is clear that this is not the first occasion that the prisoner has preyed upon the child. To abruptly introduce an innocent child into the domain frequented by adults must be condoned in the strongest terms possible with a strong and deterrent sentence. Both for the community the prisoner and all so that adherence to the law is mounted against the escalating circle of this offence into the homes of our people. Relatives must respect the young and tender and loved ones with care and not abuse and torment as is the case here. The sentence imposed must protect the young at heart innocent in their upbringing, not to be subjected to trial for a wrong that is not theirs. This is clear by the prisoners’ express intentions to satisfy his sexual lust at the pain and misery of the child. This is the evidence set out in the trial.
   
4. The reference in pidgin to bol is the unsophistication of this young child that was taken advantage by the prisoner to commit the offence. It is relevant in this regard to set out the suffering of the child shown in the evidence of the mother. I tried to lift him up and he said Mama “isi”. He said his bum was paining. I took him up to the room with his father, and pulled his trousers down checked his bum. It was swollen on either side of his bum. He told me at Wono Beach he tricked me to excrete. He told me to eat his bol and sleep on the grass and he put his bol into my anus. I felt pain, and he told me, “Stap isi” and I will release, ejaculate. I told him Adadi I feel like excreting, and he said, “stap isi tasol” after this we came to the house. In the morning on the 31^st I took him to the Vanimo General Hospital to be checked there. My son is 6 years old and going to 7 years now. My other child is 7 to 8 months old. I gave birth to Lasa on the 15^th October 2015. She identified the Accused as Adadi, alias Darren Babia a relative. Essentially this was her evidence. This is very strongly corroborated by the Medical officer setting all out in the clinic book exhibit P2.
   
5. It is clear this is well planned because of the way that the prisoner set about to commit the offence. And he persisted without regard for the welfare of the child who endured pain and injury direct from his actions.
   
6. The maximum sentence pursuant to section 229A (1), (2), and (3) of the Criminal Code Act is life imprisonment. It is undisputed that the worst offence will draw the maximum due. It must be settled at the outset that sentencing discretion is not tied to a mathematic formula, each case draws its own sentence by its own facts and circumstance: Lawrence Simbe v The State [1994] PNGLR 38. To adhere strictly to guidelines and range would be equivalent to legislating, which is not the prerogative of the courts: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). And in each case the sentence must be proportionate to the gravity of the offence depicted out by its facts and circumstances because the worst case attracts the maximum penalty: Goli Golu v The State [1979] PNGLR 653. In similar phase facts leaning to proportionality at the lower end of the scale of sentencing should fall likewise. And it makes sense in the light of John Elipa Kalabus v The State [1988] PGNC 120; N604 (27 October 1988) one of the worst cases of sexual perversion leading to death of a nine (9) year old girl.
   

7. This Court imposed 15 years IHL for an uncle who committed sexual intercourse upon a 13-year-old niece in State v Kopun [2009] PGNC 292; N3871 (29 June 2009). Seventeen (17) years imprisonment was imposed by this Court in State v Jonathan (No 2) [2009] PGNC 210; N3840 (22 December 2009) because the prisoner was 48 years old and the victim was 4 years old. It is clear that the age of the child will gravely weigh out the sentence due. And particularly also if there is violence committed over and above to secure commission of the offence, State v Lumou [2004] PGNC 107; N2684 (23 September 2004). Here the child was 16 years old but violence was committed to secure the offence. It was rape more and so the sentence reflected. And this is confirmed in the views of the Supreme Court in Sabiu v State [2007] PGSC 24; SC866 (27 June 2007) which dismissed the appeal and confirmed the initial sentence of 17 years imprisonment for the crime of sexual penetration of a minor as here pursuant to the same section now sought here. And of relevance is that sentence was imposed here in Vanimo. That Supreme Court was sitting in 2007 and this crime has since that confirmation of that sentence on appeal not decreased, but the converse, an increase in the prevalence of the offence.

7. The reason to commit that offence was because bride price paid was not given to him as the mother of the victim was his sister. That is not the case here. There is no reason for the commission of the offence except lust. And it is perpetrated with vigour despite the pain inflicted on the victim. The victim has been brought into Court no choice of his but on the lust of the prisoner. There is nothing that is overt or identifiable inconsistent with a sentence other than what his facts circumstances draw to him. Because he is not likened in any way to those who have pleaded guilty to their convictions and sentences: State v Pupuka [2007] PGNC 168; N3184 (1 October 2007), or State v Peter [ 2017] PGNC 49; N6672 (16 February 2017) or State v Rome [2007] PGNC 215; N5048 (13 July 2007). A guilty plea is acceptance of what one has done. There is none of that upon the prisoner. He accepts the decision that was made. But that is not the same as saying I am sorry for the offence that I have committed, have mercy on me. It is not that for his case.
   
8. The aggregate is that the prisoner is sentenced to 20 years imprisonment with hard labour. The month that he has spent in custody will be deducted from that period.
   
9. Darren Babia of Lido, Vanimo Green, West Sepik Province for the crime of

sexual penetration pursuant to section 229A (1), (2), (3) of the Criminal Code Act committed upon your 6-year-old nephew Lasa Lian Duni, you are sentenced to 20 years Imprisonment in Hard Labour. Time of remand of one (1) month will be deducted forthwith. You will serve the remainder of 19 years IHL in jail forthwith.

Orders Accordingly

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor Lawyer for the Defendant