N11500

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 403 OF 2024

THE STATE

V

FEDOLIST KAMAPU

WABAG: ELLIS J
12, 25 SEPTEMBER 2025

CRIMINAL LAW – SEXUAL PENETRATION OF A CHILD UNDER THE AGE OF 16 - s. 299A(1) CCA – Plea – Comparison with a charge of rape - Sentences in other cases for this offence considered out of date - Need for deterrence – 16 years IHL – 4 years suspended – reduction for time served.

Brief facts
The offender knocked on the door of the house where the victim was living, When the victim opened the door, he entered the house, closed the door, put his hand over her mouth, threatened to kill her if she screamed, pushed her into her room, onto her bed, removed her clothes and had sexual intercourse without consent. 

Held
(1)	The starting point for sentencing for this offence (which carries a maximum penalty of imprisonment for 25 years) should be 20 years’ imprisonment when there is sexual intercourse without consent.

(2)	Aggravating factors:  offender forcibly entered victim’s home; threat to kill; force used; no consent; offence occurred on victim’s bed.

(3)	Mitigating factors: plea of guilty; expression of remorse; no weapon.

(4)	A sentence of 16 years was imposed. Four years were suspended.  The pre-sentence period in custody was deducted.

Cases cited
Abuku v The State [1987] PNGLR 267
Apo v The State [1988] PNGLR 182
Golu v The State [1979] PNGLR 653
Lawrence v The State [1994] PNGLR 38
State v Esrom [2006] PGNC 53; N3054
State v Mokei (No 2) [2004] PGNC 129; N2635
State v Raumo [2007] PGNC 187; N4983
State v Samson [2005] PGNC 160; N2799
State v Taunde [2005] PGNC 152; N2807
State v Trosty [2004] PGNC 103; N2681

Counsel
P. Tengdui for the State
L. Toke for the defendant

SENTENCE

1.	ELLIS J: 	Fedolist Kamapu of Mambisenda village, Wapenamanda, Enga Province, pleaded guilty to charge a sexual penetration of a child under the age of 16 years on 31 August 2023.  That charge was based on section 299A(1) of the Criminal Code Act 1974 (the CCA).  Section 229A, which is headed “Sexual Penetration of a child”, is set out in full below:
“(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.”
2.	During the hearing on 12 September 2025, the defence indicated a desire to rely on a pre-sentence report, an earlier such request having resulted in an order being made on 7 October 2024 for the provision of such a report.  

3.	To permit the defence to rely on a pre-sentence report, the following orders were made:

“1	The Probation Service in Mount Hagen is to provide the Court with a Pre-Sentence Report for the offender by email by Friday 19 September 2025.
2	Any written submissions in response to that report by either party are to be provided to the Court, in hard copy form, by Tuesday 23 September 2025.
3	Relist the proceedings on Thursday 25 September 2025 for judgement.”

Findings of fact
	
4.	The evidence placed before the Court was the 49-page Police brief, which became Exhibit A.  The medical report, suggested by the table of contents to be at pages 26-27, was missing.

5.	That uncontested evidence justifies the following findings of fact:

(1)	Between 9am and 9.30am on 31 August 2023, at Sakalias Village in Wabag, the victim was at home with her two-year old sibling.
(2)	When a person knocked at the front door the same way her older sister knocked, she opened the door and found it was the offender at the door.
(3)	After the offender asked if Patrick was there, when she tried to close the door, he came inside the house, covered the victim’s mouth with his hand and told her he would kill her and her sibling if she screamed.
(4)	The offender pushed the victim into her room, removed her clothes and raped her on her bed.
(5)	After that, he took an axe and unsuccessfully tried to break open the door of the room of the victim’s sister, repeating his earlier threat.
(6)	The offender then stole five bilums, one Nike bag, two eyeglasses and some items from the refrigerator.  He also tried to steal a television.
(7)	At about 9.30am on 15 September 2023, the offender knocked at the front door of another house and, when it was answered by a lady aged 21, he asked if Mary was there.  However, after they said no, he left.
(8)	Shortly after that, when a male adult asked the offender what he was doing, he said he was looking for a lady named Mary who he falsely claimed was teaching grade seven at Wapenamanda Village.
(9)	During a recorded interview that was conducted on 3 October 2023, the offender denied the conduct which he now admits.
(10)	In July 2025 the offender first indicated an intention to plead guilty to the subject offence.
(11)	At the time of the offence, the offender was aged 24, had a grade 9 education, was unemployed, lived at Teremanda with his aunt, and was single.

Allocutus

6.	Since that evidence supported a conviction, the offender was provided with an opportunity to address the Court, prior to closing submissions.  The effect of what the offender said in Engan, translated into English, was:
“I have done a wrong thing in the eye of God, and I say sorry to God.  I did spoil that girl and I say sorry to her and her parents.  I also say sorry to my own family members.  I have violated the law, and I say sorry to this Court.  I also thank the court for hearing my case.  As to the offence that I committed, at that time I was under the influence of liquor and the victim herself asked me where I was going about four times.  I am also a student, and I am asking the court to reduce the term of my imprisonment.”

Defence submissions

7.	It was noted that the offence carried a maximum term of imprisonment of 25 years and that the offender had entered a plea of guilty.  

8.	He was said to be 24 years old and living at a village in Wabag with his aunt at the time of the offence.  The Court was told that the offender is the first of six children, that his parents are still alive, and that he was a Grade 9 student of the Seventh Day Adventist faith.

9.	Reference was made to Golu v The State [1979] PNGLR 653 in support of a submission that the maximum penalty should only be imposed in the worst case, and to Lawrence v The State [1994] PNGLR 38 which is authority for the proposition that each case should be determined based on its own facts.

10.	Other cases said to be relevant were:

(1)	State v Taunde [2005] PGNC 152; N2807, which involved a guilty plea, an offender aged 33, a victim aged 13, a relationship of trust (uncle-niece), no aggravated violence and the imposition of a sentence of 10 years.
(2)	State v Esrom [2006] PGNC 53; N3054, also a sentence following a plea of guilty, an offender aged 50, a victim aged 9, a relationship of trust and a sentence 12 years’ imprisonment.
(3)	State v Raumo [2007] PGNC 187; N4983 – the offender was aged 25, the victim was 6 and the offender was ordered to serve a term of imprisonment of 10 years. 

11.	It was contended that those cases had serious aggravating factors, unlike this case.  The appropriate starting point was said to be 13 years.  Aggravating factors were said to be that force was used and that the offence was prevalent.  

12.	Mitigating factors were said to be the plea of guilty (first indicated in July 2025), the absence of prior convictions, the expression of remorse, the absence of pre-planning and that no weapon was used.  

13.	A submission was made that the mitigating factors outweighed the aggravating factors and that the head sentence should be 10 years with a reduction of 1 year 11 months for time already served.

Prosecution submissions

14.	After repeating the submissions for the defence that that the maximum penalty should only be imposed in the worst case, and that each case should be determined based on its own facts, it was noted that the offender violated the victim which was a matter of gravity because the victim’s physical development may not be  the same as if she had already reached a more mature age.  It was submitted that there was a need to protect young women.

15.	Reference was made to the cases summarised below and it was suggested there are no recent judgments in relation to this offence:

(1)	State v Samson [2005] PGNC 160; N2799, an offender aged 17, a victim aged 13, no consent, no weapons, no aggravating factors, no prior convictions, co-operation with the Police and the offender a juvenile, being a case where the sentence was five years.
(2)	State v Trosty [2004] PGNC 103; N2681, an offender aged 21, a victim aged 15, consent with a six-year sentence being imposed after a plea of guilty.
(3)	State v Mokei (No 2) [2004] PGNC 129; N2635, an offender aged 33, a victim aged 13, a relationship of trust in that the offender was the uncle of the victim and a 15-year sentence being imposed after a trial.

16.	Aggravating factors were said to be that the offender entered the premises without permission and took the victim, aged 13, to her bedroom to have sexual intercourse with her.  It was noted that, although the offender had entered a plea of guilty, in his record of interview he asserted that he was not present and did not commit the offence.  

17.	The prosecution emphasised that this case was serious because it involved the rape of a young girl who should be able to feel safe in her own home.  A final submission was made that the sentence should be in the range of 8 to 12 years and that the Court should not suspend any of the term imposed.

Pre-sentence Report

18.	The pre-sentence report, admitted as Exhibit B, adds little to the information already before the court and does not recommend probation.  As a result, it is difficult to see why this report was requested (1) due to serious nature of the offence, and (2) there being no Probation Officer stationed in Wabag.  That request for a pre-sentence has only served to delay the finalisation of these proceedings.  The information it contains could have been obtained and presented as part of the accused’s case without the need for a pre-sentence report.

19.	It must be noted that the pre-sentence report contains a sentence which reads: 

“According to the offender he said … he met the girl at Wabag town and they went out and did what he did.”
 
20.	That claim, which is contrary to the uncontested evidence and was not mentioned by the accused during his allocutus, is rejected.

21.	An opportunity was provided for any written submissions which either lawyer wished to make in relation to that pre-sentence report to be lodged.  No submissions were lodged for the prosecution.  The defence did not lodge any submission in response to the pre-sentence report but instead presumed an entitlement to make further submissions in relation to the entirety of this matter.  Those submissions have not been considered as they do not comply with the order that was made, and it would be a unfair to rely on defence submissions to which the prosecution has not been able to respond.  It is noted that most of the matters set out in those written submissions were raised during oral submissions.  Hence, both the pre-sentence report and providing an opportunity for written submissions to be lodged in response to it did not provide the Court with any further assistance.

Consideration

22.	The circumstances of the offence are that the offender knocked on the door of the house where the victim was living, in the same way that her sister knocked.  When she opened the door, he entered the house, closed the door, put his hand over the mouth of the victim, threatened to kill her if she screamed, pushed her into her room, onto her bed, removed her clothes and had sexual intercourse without her consent.  After that, the offender took an axe and tried to enter the room of the victim’s older sister, stole items, then left.  The circumstances of the offender are set out at [8] above.

23.	It is difficult to accept the offender’s claim that what he did on 31 August 2023 occurred while he was under the influence of liquor when it appears he tried to engage in similar conduct just over two weeks later, on 15 September 2023.

24.	Evidence of that second occasion suggests a repetition of conduct by the offender of knocking at a door and asking for someone he knows is not there as a way of gaining entry.  Even if the offender was under the influence of liquor at the time of the offence, that is not a matter relevant to mitigation of sentence: Apo v The State [1988] PNGLR 182.

25.	While the primary purpose of these reasons is the sentencing of the accused, it is appropriate to also consider the impact on the victim.  The victim did nothing wrong, was not to blame for this incident in any way and should not feel any shame at what happened.  Hopefully, her memories of this incident will fade over time although may be difficult when she goes to sleep each might in a bed in which she was raped.

26.	The following paragraphs from what was said in Samson, in which a starting point of imprisonment for 15 years was used, are worth repeating:
“… Section 229A of the Criminal Code is part of a set of new provisions introduced by the Parliament in 2002 aimed at protecting children against sexual exploitation and abuse. The People of Papua New Guinea decided through their duly elected representatives in the National Parliament to change the law and express their abhorrence of this sort of conduct. The People have indicated that they will not tolerate children being abused, particularly by those in a position of trust. This is recognition of the central role that children play in all societies and cultures in Papua New Guinea. In Papua New Guinea children are treated like kings and queens. They are the future of Papua New Guinea, and the People depend on them and their upbringing.
Kandakasi J has remarked on the same thing in a number of recent cases... Concern about the vulnerability of children is growing, not only in Papua New Guinea but also throughout the world. It is an accepted medical and scientific fact that whatever happens in a person’s earlier life remains long in their memories even though there might be no obvious physical harm. This is a serious factor in Papua New Guinea because, unlike countries like Australia, there is no readily available specialised medical services to help the victims recover from the effects of such crimes.”
27.	With the recent celebration of 50 years of independence, it is appropriate to also consider the Constitution, which may be regarded as this nation’s birth certificate.  Apart from the obvious theme of unity despite diversity, one of the common themes in the Constitution is the inherent dignity of the human person.  
28.	For example, section 37(17) of the Constitution requires that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.  It cannot be sensibly suggested that the male accused has that right but not the female victim.

29.	When a 28-year-old man invades the home of a 13-year-old girl, threatens to kill her, and rapes her on her own bed the words “inherent dignity of the human person” must remain a goal, not an achievement.  The offender may not have had any regard for the inherent dignity to which this victim was entitled, but this Court does.  It is to be hoped that the offender’s conduct only temporarily damaged and did not permanently destroy the inherent dignity of the victim. 

30.	While the age of the victim cannot be said to be an aggravating factor when that is an element of the offence (although it is usually the case that the younger the victim the higher the sentence) it is important that (1) people should feel safe in their own home, (2) women of all ages are not subjected to sexual intercourse without consent, and (3) the court tries to protect young girls by deterring conduct such as that of this offender.

31.	It must be noted that, since the offender had sexual intercourse without consent with the victim, he could have been charged under s 347 of the CCA with rape, an offence which carries a maximum sentence of life imprisonment.  

32.	If the offender faced such a charge, the age of the victim (13) would have been a significant aggravating factor and not just an element of the offence.  Close to 40 years ago, in Abuku v The State [1987] PNGLR 267 it was suggested that the starting point for a sentence for rape should be imprisonment for five years, but higher if there are aggravating factors.  Now, the range is significantly higher, reflecting the fact that sentences for rape have increased over time. Had this offender been charged with rape, his sentence following a trial would have been in the region of 25 years or 20 if a plea of guilty was made.  Hence, the offender is fortunate he was not charged with rape, even though his conduct would have supported such a charge.

33.	The reported decisions which considered a charge of sexual penetration of a child under the age of 16 to which the legal representatives referred were cases decided between 2004 and 2007, about 20 years ago.  Those sentences appear to be out of date.  The court was told, during the hearing of the offender’s plea, that there are no recent cases.

34.	If the Court confined its consideration to the cases to which the legal representatives referred, the appropriate sentence following a trial would have been the starting point, as used in Samson, of 15 years.  Applying a 20% reduction for a plea of guilty would give a sentence of 12 years.

35.	However, the Court does not consider that a sentence following a trial of 15 years is adequate for sexual penetration of a child under the age of 16, without consent, due to: (1) the comparable sentences referred to in submissions being about 20 years old, (2) sentences for rape having increased during the last 20 years, (3) the need for a measure of consistency between sentence for this offence when the sexual penetration is without consent, and the offence of rape, (4) the need for deterrence of an all too prevalent offence, and (5)	 the need to reinforce the message that girls under the age of consent should be able to feel safe in their own home and on their own bed.

36.	The Court considers the appropriate sentence for this offence, when there is sexual intercourse without consent, of a child under the age of 16, following a trial, should be imprisonment for 20 years.  

37.	A reduction of 20% for the plea of guilty is considered appropriate as this was not an early admission of guilt because the offence occurred in August 2023, about two years ago, and the offender did not indicate that he would plead guilty until July 2025, about two months ago.  That would suggest a term of 16 years, which the Court considers appropriate having regard to the circumstances of the offence and the offender.

38.	Suspending four years of that term will mean that the offender is only required to serve a term of 12 years if he is of good behaviour during a period of three years after his release from custody, that 12 year period being the period he would have spent in custody if a starting point of 15 years had been used.  In other words, the higher sentence which the Court considers appropriate will apply to future cases, but not to this offender if he is of good behaviour during the three years after his release from custody.  When a deduction of just under two years is made for time which the offender has already spent in custody, he will be required to serve a remaining term of just over 10 years and will not serve additional time in custody if he is of good behaviour during the three years following his release.  A sentence of 16 years will signal that the Court seeks to protect young women in the safety of their own home. Any such future case, involving sexual intercourse without consent with a girl under the age of 16, may be expected to be based on a starting point 20 years.

Sentence

39.	For those reasons, and by way of summary, the Court considers that imprisonment with hard labour for 20 years would be appropriate if the accused had been found guilty following a trial.  Making an allowance of 20% for the recent plea of guilty and the expression of remorse warrants reducing that sentence by four years to 16 years.  

40.	Suspending four years on the condition that the offender is of good behaviour during the three years following his release from custody, further reduces the time to be served to 12 years.
 
41.	At the hearing on 12 September 2025, it was agreed that the accused has already spent 1 year and 11 months in custody.  However, the additional time spent in custody up to today has increased that time to 1 year, 11 months and 13 days.  That gives a remaining period to be served of 10 years and 17 days.

Sentenced accordingly.

__________________________________________________________________
Lawyer for the State: Public Prosecutor	
Lawyer for the defendant: Public Solicitor