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State v Harea [2024] PGNC 297; N10967 (20 August 2024)

N10967

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 356 OF 2022

THE STATE

V

MOSES HAREA

Waigani: Miviri J
2024: 09^th April, 20^th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – sexual penetration Minor 12 years old – 4 years old victim – Section 229A (1) (2) (3) CCA – Digital Penetration – Injuries to Vagina – Admission to O & G Ward Stitched – Grand Father Husband of Grandmother’s sister – No Other Adult Male in that Locked Room – Victim in that room with Accused – Recent Complaint To Aunty –Supported by Medical Evidence – Serious Abuse of Trust Authority Dependency – Prevalent Offence – Strong Deterrent & Punitive Sentence – Large Age Gap.

Facts
Accused was married to the sister of the grandmother of the complainant. They took her in for the night to sleep with them in their house. In the course of the early hours of the morning he inserted his finger into her vagina and injured her. She was bleeding where her mother discovered the bleeding and sought medical help uncovering the offence. Matter was reported and the accused was charged for it.

Held
Sexual penetration with finger.
Injuries to vagina.
Grandfather & granddaughter.
40-year-old & 4-year-old.
Serious breach of trust.
Prevalent offence.
20 years IHL.

Cases Cited:
State v Makai [2010] PGNC 107; N3914
Sabiu v State [2007] PGSC 24; SC866
Palam v State [2024] PGSC 17; SC2546
Lawrence Simbe vs. The State [1994] PNGLR 38
Kumbamong v State [2008] PGSC 51; SC1017
Koribiseni v State [2022] PGSC 90; SC2296
Paul v State [2017] PGSC 33; SC1630
Wartovo v State [2019] PGSC 11; SC1775

Counsel:
E. Kariko, for the State
J. Bibilo, for the Defendant

SENTENCE

20^th August 2024

1. MIVIRI J: This is the sentence of Moses Harea of Paivera village, Ihu, Gulf Province a grandfather, who was convicted of having sexual penetration of his 04-year-old granddaughter. He digitally penetrated her vagina.
   
2. He was indicted under 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.

3. It was pleaded also in the Indictment that he was in a position of trust authority and dependency he was the grandfather of the child Miriam Sawara, a 4-year-old. That he had digitally penetrated the vagina of the four (4) year old and in the course his fingernails cut the inside of the “ete” vagina of the minor.
   
4. He has absconded bail and is currently the subject of a bench warrant that was issued of the 22^nd April 2024 yet to be executed. The verdict of guilty to the indictment was delivered of the Friday 02^nd August 2024. He still was not arrested pursuant to that bench warrant. He has of his own volition absconded from appearance to face the consequences of his actions in law. Despite being advised in court the verdict adjourned to 1.30pm on the 12^th April 2024, but he made no appearance since. It is not evident by time and date as to when the bench warrant will be executed to bring him before the court to be served his sentence. He has addresses on sentence by his lawyer responded to by the State. Allocutus has not been administered. In my view it is of no consequence given that he has drawn it impossible to hear what he wants the court to consider in determining an appropriate penalty. In law given these facts it is right to impose sentence upon him for the offence convicted.
   
5. Primarily he was convicted on the facts upon arraignment that between the 24^th September 2020 and the 27^th September 2020 at Talai Settlement, Badili, Port Moresby, National Capital District, prisoner the grandfather of the complainant Mirriam Sawara four (4) years old was sleeping in the same room with her. In the early hours of the morning whilst she was sleeping, he inserted and pushed his fingers into her vagina causing injuries within for which she was bleeding and hospitalized.
   
6. It attaches the medical report that was taken of the 01^st October 2020 by this witness who conducted the medical treatment upon the complainant after observing her making a medical determination as to what in medicine was the cause of the bleeding for which she was taken into the Port Moresby General Hospital obstetrics & gynaecology Department. His interrogation uncovers what is already given the state witnesses on oath and whose statements have been tendered marked defence exhibits set out above. “On vaginal examination, blood-stained vagina and vulva, no active PV bleeding. Old Blood clot removed from vaginal introitus. There was a clean linear laceration from posterior-hymenal ring. On further examination in the operating theatre under anaesthesia, there was a approx. 0.5mm hymenal laceration at 6.0’clock position; vagina and perinium appeared intact. There were no external lacerations or abrasions. Perinium was blood stained. Anal verge appeared intact. She had x1 stitch applied to the hymenal laceration. She was given appropriate treatment and discharged from hospital on the 29^th September 2020. To conclude this is a case of child sexual abuse with recent vaginal laceration following sexual assault.” It is a very serious offence evidenced and aggravates offence against the prisoner in the determination of sentence upon him. The sentence will reflect this fact in it upon the prisoner.
   
7. Prisoner is 44 years old originally from Paivera village, Ihu, Gulf Province. A first offender he has no history of employment. The complainant is 4 years old at the time of the offence. He is a 44-year-old grandfather of the young girl. He has no prior convictions known to the law against his name. But the age gab is 40 years she is 4 years old. And she suffered injuries that are set out by the medical report particularized above. He committed the offence upon her as She was sleeping with him and his wife in the same room. That is a very serious breach of trust upon him. He has defied the law by absconding from Bail and facing up to the consequences of his actions in law. Conduct like that must be met with a sure arm of the law that no one gets off out of the reach of the law without consequences drawing for so making.
   
8. Each case of sexual penetration of a minor pursuant to section 229A of the code draws by its own facts and circumstances sentence due proportionate to the crime committed. No one case is the same as the other all come differently by their facts and circumstances for instance in State v Makai [2010] PGNC 107; N3914 (25 January 2010) he was convicted after trial of penial sexual penetration of his sister-in-law who was only 9 years old. He was a 30-year-old. The Court imposed 20 years imprisonment in hard labour. 17 years imprisonment IHL was imposed upon and confirmed on appeal in Sabiu v State [2007] PGSC 24; SC866 (27 June 2007) anal sex of a 6-year-old nephew by the prisoner who was angry because he had not been given a share of the bride price of his sister his mother. In Palam v State [2024] PGSC 17; SC2546 (28 March 2024) 15 years was confirmed on appeal holding it not excessive in view of the fact that 25 years was prescribed maximum term under section 229A (1) because she was 13 years. I am determining sentence of a 4-year-old who has been violated by his grandfather in the room where she slept with him and his wife her grandmother. It is therefore not a light matter to be swept aside given. This is the basic unit of society the family that must always be protected by the law. Grandchildren in the care of grandparents must be looked after, not abused sexually as here. No amount of sentence will bring back her virginity and innocence as a child of tender years. The sentence will reflect this gravity.
   
9. Reading the section 229A in whole, the lower the age extending the age gap the higher the sentence. Further it is not erroneous to hold that sentencing discretion is never fettered or dictated in a certain direction or position: Lawrence Simbe vs. The State [1994] PNGLR 38. Because all matters raised in a case must be considered to the full extent due in law relevant with all other matters that are before it to arrive at a just sentence. The wishes expression of the victim are part and parcel of and together with all other matters that are placed before court will be given due weight according to law the facts and circumstances to arrive at a just sentence in law. Sentencing is not dictated or tied down by tariff or range but dependent on the facts and circumstances and tariff or range will be part of the process and will be considered on the level due to it: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). Being proportionate is not by mathematical formular but due consideration in law including consideration of the principles of totality to arrive: Koribiseni v State [2022] PGSC 90; SC2296 (25 August 2022). Supreme Court upheld the appeal on sentence and overturned the initial warrants issued pursuant because of excessive exercise of discretion against the sexual penetration and touching convictions. Consent is not an element of both convictions but is a very relevant factor to account for trust authority and dependency as is the case here: Paul v State [2017] PGSC 33; SC1630 (3 November 2017). Which is an aggravating feature that will see sentence parallel for seriousness evidenced. Twenty-two (22) years for persistent sexual abuse contrary to section 229D (1) and (6) at first instance was confirmed by the Supreme Court and the appeal dismissed in Wartovo v State [2019] PGSC 11; SC1775 (1 March 2019).
   
10. The facts here denote a very serious breach of trust between a grandfather and granddaughter. She is 4 years old; he is 44 years old the age gap is 40 years old. It is drawing life imprisonment because of that fact. But it is not the worst case of its kind, so a determinate term is in view. He is first offender. Considering all set out above it is not erroneous to impose 20 years imprisonment in hard labour upon the prisoner Moses Harea of Paivera village, Ihu, Gulf Province. Any time on remand will be deducted and the balance will be served in jail. He is currently the subject of a bench warrant that has not been executed. Once executed he will serve this sentence forthwith.
    

Orders Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant