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State v Tumun [2024] PGNC 287; N10955 (24 July 2024)

N10955

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 990 OF 2022

THE STATE

V

ELIZAH TUMUN

Minj : Miviri J
2024 : 11^th & 24^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Plea – Sexual penetration Minor 12 years old – 10 years Old – Section 229A (1) (2) CCA – Penial Penetration – Injuries to Vagina – Forced Into Bushes on Side of Road –Sexually Penetrated – Prisoner 26 year Old – Broad Daylight Offence –Complainant 10 years Old Emotional & Physical Trauma – Protection Young Girls & Females – Prevalent Offence – Stern Deterrent & Punitive Sentence – 12 years IHL.

Facts
Accused forced the victim 10 years old into Bushes alongside the road where he sexually penetrated her. She sustained injuries to her vagina.

Held
Plea
Sexual penetration.
10-year-old Girl.
26-year-old man
Injuries to Vagina.
Emotional & Physical Trauma.
Protection of young females & Children.
12 years IHL.

Cases Cited:
Golu v The State [1979] PNGLR 653
Simbe v The State [1994] PNGLR 38
Palam v State [2024] PGSC 17; SC2546 (28 March 2024)
State v Aru [2016] PGNC 424; N6917 (14 March 2016)
Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998)
Sabiu v State [2007] PGSC 24; SC866 (27 June 2007)
State v Mokei (No 2) [2004] PGNC 129; N2635 (26 August 2004)
State v Trosty [2004] PGNC 103; N2681 (10 September 2004)
Tardrew, Public Prosecutor v [1986] PNGLR 91

Counsel:
F. Popeu, for the State
D. Pepson, for the Defendant

SENTENCE

24^th July 2024

1. MIVIRI J: Elizah Tumun of Bomba, Minj, Jiwaka Province now appears to be sentenced after pleading guilty to having sexual penetration of 10-year-old Anna Raphael.
   
2. He was arraigned that on the 17^th day of January 2022 the complainant Anna Raphael a female child aged 10 years old from Nganbe village Minj followed her parents to the Minj Police Station. At 12 midday she wanted to go back home so left the parents at the Minj Police Station and walked by herself heading to her home at Nganbe. Along the way she heard the accused Elizah Tumun whom she did not know by name, wearing a long trousers and shirt with a black hat called and swore at her to go over to him. Accused then walked over to her grabbed her and pulled her into the nearby bushes where he removed her clothes. Then he removed his trousers and proceeded to insert his penis into her vagina. And as he did, she felt pain and was bleeding.
   
3. In the process of having sexual intercourse with her accused took off his shirt and the complainant noted a big tattoo that was running the side of his body, and he had dreadlocks. After having satisfied himself, the accused got up and left the complainant. She came out and reported to some people she saw on the road and her parents were informed and matter was reported to police the same day. Accused was apprehended charged with the offence and now appears in court.
   
4. He was indicted pursuant to section 229A of Criminal Code, Sexual Penetration of a Child which read:
   

(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 Subsection (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.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

5. He pleaded guilty to the charge and so the matter was adjourned for a presentence report before counsel addressed on the appropriate penalty against him. A first offender he is 26 years old having been born on the 14^th June 1998. Originally from Bomba Minj he was educated to Minj Secondary School and also completed FODE Minj. With no employment experience he was resident at the Barracks where he was arrested and taken into custody for the offence.
   
6. In allocutus he stated “It is my first time in Court. I respect the Court. My father passed on when I was small. I have a brother and sister who are old. No one helps me in my education. My mother is from Bogia Madang Province. My uncles cannot help me in my education. My life is hard and I used to drink. But I did not give up my education. 2012 my offer did not come. I was in grade 12. I did FODE. I am sorry to the Court. In the eyes of GOD, I committed a crime. It is my first time. I promise I will not get into trouble again. Before GOD and Court, I say sorry to the complainant Anna Raphael and her family. I say sorry to my family and also before you all in Court now. Have mercy on me. I am one only. Please be merciful.”
   
7. Coupled with his guilty plea it was a genuine expression of remorse and a real urge to change for the better realizing that what he did would not get him out into a life of obedience and abiding with the law. He saved the little girl the trauma of having to live out the offence in court before strangers. It was trying in view of the fact that he had educational attainments that would have led him to be a good citizen but for the fall into this offence. He may have pleaded guilty, but the fact of the matter was that it was a very serious offence on a very young 10-year-old girl. And a minimum sentence was prescribed of 25 years going up if the age was under 12 years old. Here she was 10 years old. And it was an offence that drew out the maximum of life imprisonment upon him. But that was dependent upon the facts circumstances that came out from the offence. It was not the worst case of its kind and therefore a determinate term was in view: Golu v The State [1979] PNGLR 653. No one case is the same each account for the sentence by its own facts and circumstances: Simbe v The State [1994] PNGLR 38. Here the balance was between his honest guilty plea and that she was 10 years old minimum prescribed term of 25 years imprisonment going to life.
   
8. Yes, the medical report dated the 18^th January 2022, by Acting OIC Minj Health Centre Peter Kamie Komni evidenced that “Multiple vaginal labia torn (1^st degree). Bruising upper urethral membranes. Hair at external vagina area with dirt and blood clot. Fresh blood flow at hymen torn plus bruises interior. Note: Multiple laceration with fresh bleeding from direct penetrated sexual site with semen directed at vaginal area. Direct penetrated sexual act lead to multiple vaginal labia lacerations bruises and abruption Review HIV/AIDS test after 3 months (current on OI care) Need support and counselling.” It reflected the seriousness of the offence. And it was committed adjacent to a public road and highway frequented by all manner of people. The 10-year-old and children, young girls who frequented it accessing it home or to public amnesties must not be threatened in this way by men and boys who took out their sexual urges in this way. Preying on the downtrodden weak members female and venerable and frail of society must be stopped. The law was the shield against those behaviours. And so, a sentence that imposed the gravity seen by the Legislature should be dished on those who saw fit as the prisoner here.
   
9. He may have pleaded guilty and was a first offender, but she was a 10-year-old who was brutally introduced to sex culminating in the injuries sighted by the medical officer. She suffered injuries to her detriment and lingering torment for the rest of her life, but to the pleasure of the prisoner. It is not a light matter if the Legislature says it is a minimum of 25 years imprisonment. A sentence of 15 years at first instance was confirmed on appeal against that sentence imposed on a trial even after which the appellant insisted that he was innocent: Palam v State [2024] PGSC 17; SC2546 (28 March 2024). I am mindful that this court has seen this offence prevalent and has addressed a number of occasions to arrive at sentences due by those facts and circumstances. In State v Aru [2016] PGNC 424; N6917 (14 March 2016) she was an immediate relative who was trusted. He was 23 years old she was 9 years old. It drew 15 years imprisonment. There is no room to suspend because the material relied on do not outweigh the gravity of the offence, Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). In this regard I take due consideration of the presentence ordered now before me. I have considered it there is nothing out of the ordinary to sway a term other than a custodial term which in my view would be between 15 years and 25 years imprisonment. But given his facts and circumstances in particular his guilty plea I consider a term lower than 15 years as appropriate here.
   
10. And this is overt where the Supreme Court confirmed 17 years imprisonment and dismissed the appeal in Sabiu v State [2007] PGSC 24; SC866 (27 June 2007). That was anal intercourse of a six (6) year child by his maternal uncle who took him into the bush and committed the offence upon him because part of the bride price money was not given him. Here the age gape is 17 years difference. He is a first offender who is 26 years old at the time of the offence. No doubt time awaiting has seen the effect on him by his allocutus set out above. He will fall in similar vein as State v Mokei (No 2) [2004] PGNC 129; N2635 (26 August 2004) because she is 10years old here and it is a guilty plea. But comparably the facts in State v Trosty [2004] PGNC 103; N2681 (10 September 2004) are mild she was 16 years old; he was 22 years old the act was consensual for several times, hence the 5 years imprisonment imposed. This is a violent and unforgiving act upon an innocent 10-year-old girl brutally introduced to sex who will live for the rest of her life with that fact unceremoniously imposed upon her.
    
11. In favour of the prisoner he has by his own word pledged to change. That is a factor that the Court must give some leniency upon in the sentence. The age gap is 17 years difference, he 26, and She 10. It was not a repeated act, but it was committed with determination and ill considerate of the fact that it was on a public highway adjourning. All young children, female and all venerable members must be protected. That road must always be safe to be used by all. Our life is dependent on our surrounding which is our rivers our mountains our surroundings. We must get out there without fear of persons who threaten our safety. The law must protect us all. And the long arm of the law is sure steady and always gets those who are on the wrong side. In this regard there is nothing apparent or identifiable to warrant the footholds seen in Tardrew, Public Prosecutor v [1986] PNGLR 91 for suspension of sentence. There will be no suspension considering. There is nothing in the presentence report warranting.
    
12. A fair and proportionate sentence considering all above is 12 years imprisonment in hard labour. And I so impose that upon the prisoner. From that will be deducted the time that he has spent on remand. He will serve the balance in jail. There will be no suspension as I consider the material filed by the presentence report and all others do not mitigate and give credence to suspension. He will serve all imposed in jail.
    
13. The sentence is therefore 12 years imprisonment in Hard labour for the crime of sexual penetration of a minor under 12 years old pursuant to section 229A (1) (2) of the Criminal Code upon the prisoner Elizah Tumun. Time on remand will be deducted forthwith he will spend the remainder of that term in Jail forthwith.
    

Orders Accordingly

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant