N10887
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 2051 & 2052 OF 2023

THE STATE

V

ISAAC BALIK

Lorengau: Batari J
2023: 10th, 14th November

CRIMINAL LAW - sentence – persistent sexual abuse of a child – numerous acts of sexual abuses perpetrated over a period of at least 7 days – 16 and half year old victim sexually penetrated and subjected to other sexual atrocities by maternal uncle – inferences of consensus acts overshadowed by complaint by the victim – plea – circumstances of aggravation – mitigating factors – 15 years imprisonment – Criminal Code section 229D (1)(6); Criminal Law (Compensation) Act 1991 sections 2, 3 considered.  

CRIMINAL LAW– Sentence – sentencing policy – seriousness of offences against children must meet with strong punitive measures for the protection and preservation of the human dignity of young children and women against all forms and manner of sexual harassment, abuse and violation – aggravating factors – circumstances of aggravation not charged – legislative intent – application of law where circumstances of aggravation not charged considered – sentence of 15 years appropriate.

Cases Cited
No cases cited 

Counsel
Mrs L. Maru, for the State
Mr L. Siminji, for the Accused

SENTENCE

14th November 2023

1.	BATARI, J:   On 10 November 2023 you pleaded guilty to an Indictment charging one count of persistent sexual abuse of a child contrary to s. 229D (1) and (6) of the Criminal Code.  The prescribed maximum penalty is life imprisonment.

2.	 This is your punishment based on these facts. The child victim, LK then 16 and half years old and her siblings left their village following devastations by king tides and sought refuge with you in your Andrikon Village, Nihon, West coast, Manus in the last week of December 2021. You were/are their maternal uncle.

3.	On the morning of the third day, LK tried to follow the other children to the beach. You stopped her and forced her back into the room where you sexually penetrated her. You repeated your repulsive and shameful actions against your niece several times that day in coerced or passive collaboration with your wife. This was the start of the numerous incidences of persistent sexual acts which also had your wife’s active or passive participation. The persistent routine which mostly took place in your bedroom involved other despicable sexual acts.

4.	It is alleged, you sexually violated the victim, 60 times. That is clearly an exaggeration. The offence was committed within a week and a half, or 10 days at the most. I am however satisfied, the sexual acts occurred on many occasions within that one-week period the complainant was staying with you at your home. 

5.	When LK and her siblings returned to their village on 1 January 2022, LK reported you to her mother. The medical report also indicated; LK was pregnant. I will return to that aspect in the latter part of this decision as it is not admitted.   

The Law
6.	Section 229D of the Criminal Code provides for two categories of persistent sexual abuse of a child. The first category is found in s. 229D (1) where a person who, on two or more occasions in relation to a particular child, engages in conduct that constitutes an offence against children under Division 2A. Subs-section (1) covers all manner and form of sexual abuse of a child that has no element of sexual penetration in it. The prescribed maximum penalty is 15 years imprisonment. 
7.	The second category under s. 229D (6), covers the situation where sexual abuse of a child involved one or more acts of sexual penetration. The offender may be sentenced to life imprisonment. In this case, the offender conceded more than one act of sexual penetration. So, the maximum indeterminate penalty applies.
8.	The apportionment of the maximum penalties of 15 years and life imprisonment for the persistent sexual abuse involving sexual penetration is in recognition of the varying form, degree, and circumstances in which sexual violations against children are invariably committed. Because of the escalating incidences of sexual offences and crimes against children, Parliament has seen fit to redefined and increased in the 2002 amendment to the Criminal Code, the seriousness of certain sexual offences by dividing each into categories of seriousness with the corresponding increased maximum sentences.

9.	The increased sentences are intended to send a clear message, that sexual offences are serious offences which must meet with strong punitive measures.  It is anticipated that greater protection and preservation of the human dignity of young children and women against all forms and manner of sexual harassment, abuse and violation will be achieved when offenders face punishment. It is also intended that both the general and punitive aspects of the sentencing policy must feature heavily in dealing with sex offenders.

10.	The legislative intent is clearly that the offender be personally punished to achieve personal deterrence from re-offending. In this way with some optimism, the offender will no longer be a threat or danger to young children, women, and a menace to society. The other intended outcome of the sentencing policy is that would-be offenders are warned of the serious consequences of being punished for acts of sexual violence against children and our womenfolk generally.

11.	Before the Court is an aggravated form of sexual violation of a child. The acts complained of occurred every day and for long hours. The victim was your niece. You abused the trust of her parents and the trust and dependency of your niece.    

12.	The offence is one of the most frequently committed offences against young children. The trend seems to be accelerating other than abating. I have dealt with many similar type offences in other places and in this Province.  The offence of sexual abuse of children is also prevalent in Manus. This must be a grave concern for the law-abiding members in the community.

13.	Young children, one must appreciate, are immature and vulnerable. They can be easily influenced and led astray, intimidated, and hurt. A child needs and relies on adults for security, respect, guidance, and general welfare. The future of our communities depends on steady and incorruptible upbringing of our children today.

14.	  Abuse and mistreatment of young children in any manner, form or degree bring about unwanted physical and psychological harm to the child.  Where the child is sexually violated, there is a greater risk of psychological harm to his or her young mind. There is also the graver risk in the victim contracting sexually transmitted diseases including the dreaded HIV and Aids or pregnancy. 

15.	Child abuse and mistreatment in any manner, type or form and degree can  also invariably lead to reduced self-esteem in the child. It may cause the victim difficulties in forming relationships or may lead to mistrusts in men where the offender is a male.

16.	The emphasis on sentence must therefore be towards the deterrent aspects of sentencing first; to bring home to the individual at personal level, the grave consequences of his conduct and second; to warn off those with similar impulses that they too will meet with severe sentence if convicted.

17.	Your case is serious because of the physical and mental harm caused to the young victim. You gained the trust of JK as a blood relative. She accepted your offer of refuge from a natural disaster affecting their village. JK’s mother, your biological sister also trusted you with JK and her other children. 

18.	However, you breached that existing relationship of trust and dependency. Blinded by your sexual lusts for her youth, you committed the most repugnant and disgusting acts of degradations against the person of JK. You abused and violated her innocence. She virtually became a slave to your sexual lust and fantasies. 

19.	And if that was not enough, you unashamedly exploited her sexually in the presence of your wife and likewise, you sexually violated your wife in the presence and with the participation of the victim. The two victims appeared to be totally immersed under your satanic spell. You showed no concern for her welfare or for the welfare of her future when you used her for your own sexual gratification. 

20.	Furthermore, older men who prey upon and used young vulnerable children to satisfy their own sexual desires are menace to the community. Your conduct pointed to a dishonest and irresponsible adult preying upon young unsuspecting victims for his own perverted sexual gratification. Those with such dissolute inclinations should not be allowed to roam freely in the community. The community must be protected against such persons by sending them away to jail for a long time.

21.	Any psychological harm LK may have suffered cannot be precisely ascertained largely due to lack of in-country facility for such assessment.  But, by your foolish and debauched conduct, you breached the trust and dependency of a relative and corrupted the young mind and innocence of the victim. It is also probable that she got pregnant. I am not however convinced to hold that against you. The story of pregnancy was tested some six months after the offence. The medical report casted a doubt when it noted JK to be in her early pregnancy stage.   

22.	In your favour, I have considered all that your lawyer has submitted. An early plea of guilty, open expression of remorse and this being your first conviction are factors to consider in your favour. You are married with eight and have asked for compensation. It is on that basis that I ordered presentence reports. 

23.	Those personal attributes and circumstances point to you leading a productive, useful, and unblemished past. This adds value to your plea. I also consider that the sexual penetration acts were consensus and not forced.

24.	Balancing all the factors for and against you, you are sentenced to 15 years imprisonment with hard labour.  

25.	I have also considered whether to suspend all or part of the sentence. I am not convinced by any good reason to take that course. However, I will deduct 15 months for the time spent in custody awaiting sentence. The balance of the sentence to serve is years 13 years and 9 months IHL.  

Sentenced accordingly 
___________________________________________________________________
Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Accused