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State v Welepi [2025] PGNC 475; N11622 (20 November 2025)

N11622

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR No 1100 OF 2025

STATE

V

STANLEY WELEPI

VANIMO: MESA AJ
7, 20 NOVEMBER 2025

CRIMINAL LAW – guilty plea – s. 299A (1) Criminal Code Act (Code) – aggravating features – breach of trust – age difference - pregnancy – extenuating factor present – partial suspension of sentence

The adult prisoner sexually penetrated the 14-year-old victim. A relationship developed between the prisoner and victim, resulting in the victim becoming pregnant and giving birth. Features of a consensual sexual relationship, stigma toward the victim, and considerations for a suspended sentence were discussed.

Held:

1. Sexual offences against children are prevalent.
2. There are two (2) types of breach of trust – direct and constructed.
3. Age difference and pregnancy are aggravating features.
4. Consent, albeit unavailable as a defence, can be used as an extenuating factor (Saperus Yalibakut v The State (2006) SC890 applied).
5. Teenage mothers can be stigmatised in the community and suffer; they lose their childhood.
6. Suspension of sentence is merited to achieve compensation to the victim.
   

Case cited
Goli Golu v The State [1988-89] PNGLR 653
The State v Kiku Mercy Sang (2018) N7419
Public Prosecutor v Bruce William Tardrew [1986] PNGLR 91
Avia Aihi v The State (No.3) [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
The State v Junior Bob Namah (2021) N9157
The State v Rudy Solo (2005) N3165
The State v Paul Nelson (2005) N2844
The State v Pastin (2014) N5623
The State v Philemon John (2025) N11339
The State v Philip (2014) N5825
The State v Steven Leleno [2019] N2926
Thress Kumbamong v The State (2008) SC1017
Saperus Yalibakut v The State (2006) SC890

Counsel
Mr. A. Kaipu, for the State
Mr. O. Himore, for the defence

1. MESA, AJ: The prisoner pleaded guilty to a count of Sexual Penetration of a child under the age of 16 years of age, pursuant to Section 299A (1) of the Code.
   
2. It is alleged that the victim, RY, had been aged 14 years, and the prisoner was 26 years old at the time of the offence, which was at an unknown date and month in 2023. At that time, the prisoner and RY were at a place called Transmitter in Vanimo where the prisoner touched RY’s body and told her that he wanted to have sex with her. RY refused, saying that he was her cousin brother; the prisoner, however, took her to a house nearby and sexually penetrated her.
   

Thereafter, the prisoner and RY continued in a relationship until 18 January 2025 when RY’s parents found out about it. Soon after that, RY told her mother that she was pregnant.

3. It was not disputed, and so I accept, that the prisoner and RY had been engaged in a consensual sexual relationship. I note that consent is not a defence for this offence.
   

Allocutus

4. In his statement on allocutus, the prisoner apologized to the Court for what he had done and that this was his first offence. He asked for mercy and the Court’s leniency in sentencing so that he could correct his mistake with RY and her family.
   

Submissions by Defence

5. Mr. Himore for the Defence submitted that the maximum penalty under Section 229A (1) of the Code was a term not exceeding 25 years. He cited Goli Golu v The State [1988-89] PNGLR 653, that the maximum sentence should be reserved for the worst type of offence, and I understand his meaning was that this matter was not a worst type.
   
6. He relied on The State v Kiku Mercy Sang (2018) N7419 (Sang).
   
7. The prisoner in Sang pleaded guilty to a count of sexual penetration under Section 229A (1) Code. He had been 52 years old at the time of the offence and had been living with the victim’s family in their house. He had taken the victim, who had been 14 at the time, into the house, removed her clothes and sexually penetrated her. She had been afraid to tell her parents, but they soon found out about it.
   
8. In its consideration of the matter, the Court found the aggravating features included the large age difference (about 38 years), a degree of a breach of trust and the prevalence of the offence. The mitigating factors included his guilty plea, being a first-time offender and that he was of an advanced age.
   
9. The Court also found an extenuating factor in the evidence: in the prisoner’s record of interview, he told the police that it had been the victim that had instigated the act of sexual penetration by leading him to it and allowing him to sexually penetrate her. The Court applied the principles set in Saperus Yalibakut v The State (2006) SC890 (Yalibakut), that factors raised in evidence or by the prisoner in allocutus must go to the benefit of the prisoner. The State in Sang did not challenge the presence of consent, and so it went to the prisoner’s benefit.
   
10. The prisoner was eventually sentenced to 6 years, which was partially suspended after the time on remand was deducted.
    
11. Mr. Himore submitted that the aggravating factor here was the prevalence of the offence. In mitigation, Counsel submitted that the Court take note of the guilty plea, that the prisoner is a first offender, he demonstrated genuine remorse in his apology and that he had not used any force or violence in committing the offence. He also submitted that there was an extenuating factor present here, and that was that the sexual relationship between the prisoner and the victim was consensual.
    
12. Defence referred to Public Prosecutor v Bruce William Tardrew [1986] PNGLR 91 and submitted the Court consider a suspension of sentence in this matter, given the favourable presentence report. He submitted that a sentence between 3-5 years was appropriate, and that the prisoner was willing to pay compensation.
    

Submission by Prosecution

13. Mr. Kaipu for the State acknowledged that the maximum prescribed sentences are reserved for the worst type of offences, citing Golu and Avia Aihi v The State (No.3) [1982] PNGLR 92 and Ure Hane v The State [1984] PNGLR 105.
    
14. The State relied on the following case:
    

The State v Junior Bob Namah (2021) N9157 (Namah); The prisoner in Namah pleaded guilty to a count of Sexual Penetration under Section 229A (1). There, the prisoner had been about 28 or 29 when he committed the offence on the victim, who was 15 years old. The evidence before the Court there demonstrated that the sexual relationship between the prisoner and the victim was consensual, despite the age difference. There were no injuries to the victim, nor was force or violence used to commit the offence by the prisoner. On the contrary, both had communicated and met each other after the victim completed school for the day at the Vanimo Primary School.

The prisoner had paid an amount of K 5, 000.00 compensation to the victim’s family (albeit reluctantly received by her father), which was provided in the presentence report.

The Court there in its consideration made reference to The State v Rudy Solo (2005) N3165 where Kandakasi J (as he then was) referred to the judgment of Cannings J. in The State v Paul Nelson (2005) N2844 and stated:

“more recently, Cannings J, in my view has given an excellent summation and comparable table of nearly all of the cases thus far dealt with by the Court since the Amendments in 2002 for an offence under Section 229A of the CCA in his judgement in The State -v- Paul Nelson. That summation shows that sentences have ranged from as low as 2 years to 20 years. Those going beyond 2 years and 6 years have been in cases, where the offenders committed the offence in breach of an existing trust, there exists, serious aggravating injuries or actual violence is used to secure the commission of the offence.” (emphasis added)

The Court in Namah eventually sentenced the prisoner to five years, which was wholly suspended with conditions.

15. The State in this matter submitted that the mitigating factors were the guilty plea, being a first offender and accepted that there was consent in the sexual penetration. In aggravation, Mr. Kaipu pointed out the large age difference (12 years), the persistent relationship of two years and the prevalence of this offence. He submitted that a sentence of 5-7 years was appropriate in the circumstances. Given the views of the victim’s parents that the prisoner should pay maintenance for the child, a suspended sentence could be considered as well, with strict orders as to maintenance. This would serve as a personal deterrence.
    

Pre-Sentence Report

16. The pre-sentence report relevantly says the following:
    
    1. The parents of the victim do not want to look after the child and want the prisoner to look after the child and the victim. They want him to remain in prison but pay maintenance for the child and the victim; if he is given probation, he will run away and desert the victim.
       
    2. The victim admitted to having consensual relationship with the prisoner; he had been working and had been giving her money and other things before they developed a friendship.
       
    3. The prisoner’s former employer is willing to re-employ him if he is given probation or when his sentence ends; he accepts the prisoner as a trustworthy person.
       
    4. There is a strong recommendation that the prisoner is a suitable person for probationary supervision instead of imprisonment.
       

Law

17. I set out Section 229A (1) of the Code:
    

‘229A. SEXUAL PENETRATION OF A CHILD.

(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 Subsections (2) and (3), imprisonment for a term not exceeding 25 years.’

18. Clearly, the intent of Parliament in passing the amendment to the Code with the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (amendment) was to protect children and deter offenders from preying on their vulnerability. This was done due to the prevalence, which continues to this day, of sexual offences against children; in most cases, the offenders are people whom the child knows and to an extent trusts.
    
19. This trust and naiveite is exploited by offenders to lure or force a child into being sexually penetrated. To my mind, I think there are two types of abuse of trust: either directly or constructively. I consider that a direct breach of trust occurs in situations where there is an immediate or extended familial relationship with the child or by close, familiar acquaintance. A constructed breach of trust occurs when the trust is built over a period of time to gain the confidence of the child to then later take advantage of and sully her/him.
    
20. Both Counsel have submitted that the maximum penalty for offences is reserved for the worst type, citing Golu. Each submits that this is not a worst case. I agree that this is not the worst type of offence, however, I am of the view that it is a serious circumstance of a constructed breach of trust.
    
21. The above-mentioned matter of Nelson was an early case that dealt with this offence following the amendments to the Code. The Court (Cannings, J) drew a useful table of comparison of sentences for Section 229A offences at that time. I acknowledge Nelson’s case comparisons here as well, which are still relevant, and the considerations constructed and employed by His Honor to arrive at an appropriate sentence.
    
22. In this matter before me, a distinguishing feature is that the victim became pregnant and has since given birth to a child.
    

1. In State v Pastin (2014) N5623 (Pastin), the Court there dealt with a guilty plea to a count of sexual penetration under Section 229A (1) of the Code. The victim there became pregnant because of sexual penetration by the prisoner.
   

Briefly, the 18-year-old prisoner and the 15-year-old victim met one afternoon in the bushes behind the latter’s house where they could chat in private. While they were chatting, the prisoner insisted on having sexual intercourse with victim. It was getting dark, and the victim wanted to leave before her parents started looking for her and so she allowed the prisoner to sexually penetrate her vagina using his penis. She then left and went home.

The Court found the following factors in mitigation for the prisoner: 1. He pleaded guilty early to the charge; 2. He was a first-time offender; 3. He was a simple inadequately educated villager of previous good character; 4. He was a youthful offender; 5. He had co-operated with the police and was remorseful.

The Court also took for his benefit that: 1. He was verbally abused and physically assaulted by the complainant's parents; 2. He had attempted reconciliation with the complainant's line and even offered to marry the complainant to look after her and the child, but this was rejected; 3. The act was consensual; 4. The complainant was but 2 months shy of the age of consent (16 years of age); 5. The age difference between him and the complainant was only 3 years.

The Court considered that there were fewer aggravating factors: (1) Apart from the prevalence of the offence, (2) the complainant got pregnant and as a result was forced out of school thus jeopardizing her chances of a good education for a better future for herself and of course the innocent child she bore.

The prisoner was sentenced to 4 years imprisonment, less time in pre-sentence custody.

23. As a matter of comparison, I have looked at other cases and their sentences:
    
    2. The State v Philemon John (2025) N11339; 18-year-old pleaded guilty to a count of sexual penetration under S. 229A (1); consensual sex with the 15-year-old victim; no violence, injury or emotional stress; no pregnancy or transmission of an STD; sentence of 6 years.
       
    100. The State v Philip (2014) N5825: The offender aged 20 at time of the offence and an accomplice (who was not indicted with the offender) came across the victim, aged 15 years at her house. The offender had sexual intercourse with the victim with her consent. The offender’s friend also had intercourse with the victim, but against her will.
         

The Court considered that the offender pleaded guilty, was a first-time offender, expressed genuine remorse, did not inflict any physical injuries on the victim and that this was a one-off offence. The only aggravating factor held against the offender was that the victim was 15 years old. The prisoner was sentenced to 5 years imprisonment which was wholly suspended.

4. The State v Steven Leleno [2019] N2926 (Leleno); 34-year-old prisoner pleaded guilty to a count of sexual penetration under S. 229A (1) (3); He and the 14-year-old victim were on one canoe while the others were in other canoes fishing some distance away from the two of them when he sexually penetrated her.
   

At that time, the sexual intercourse with the victim was consensual. She was a niece to the prisoner - his wife’s younger sister’s daughter; no violence or force was used; the victim became pregnant; compensation of K 1000.00 was paid to victim’s family; the prisoner was sentenced to 8 years.

Consideration

24. I observe from the cases cited for this offence that the sentencing trend ranges from five (5) years to eight (8) years, depending on their circumstances.
    
25. In keeping with the considerations devised by Nelson, the relevant factors here, in my mind, are these:
    

Aggravation:

1. The prisoner was about 24 years old (he is about 26 years old now) and the victim was 14 years old (she would be about 16 years old now) at the first occasion of sexual penetration; there is an age difference of at least ten (10) years.
   
2. There was some degree of a breach of trust in the constructive sense as I have described above. There is evidence from the presentence report that a relationship developed over a period with the prisoner giving gifts and money to the victim before the initial act of sexual penetration.
   
3. The victim has dropped out of school as a result and will have to re-enroll for Grade 4 sometime in the future.
   
4. The victim became pregnant and gave birth to a child. Her life’s course is now permanently altered, becoming a mother at such a young age. She will have to deal with added responsibilities and challenges that other girls of her age do not experience.
   
5. No compensation has been paid to the victim or her family.
   

Mitigation:

6. There was no violence or force used against the victim by the prisoner to engage in sexual penetration.
   
7. The prisoner is a first offender.
   
8. The prisoner did not resist police, however remained silent in his record of interview.
   
9. He pleaded guilty to the offence at the earliest opportunity.
   
10. He is willing to pay compensation and take responsibility for the child and the victim.
    

Extenuation:

11. There was a relationship that developed, and the acts of sexual penetration became consensual (Yalibakut applied).
    
26. The factors of age difference, consent and pregnancy assimilate this matter to those of Leleno, Namah (aside from pregnancy) and Pastin (aside from age difference). The sentences respectively in those matters were eight (8) years, five (5) years and four (4) years. In terms of a starting point then, I am of the view that 8 years would be appropriate as this matter is closer in resemblance to Leleno and is not a great departure from Namah or Pastin given their respective circumstances.
    
27. Starting at eight (8) years as a head sentence then, I apply the Nelson considerations and see that eight (8) years does merit as a relevant starting point, given the aggravating features I have stated here.
    
28. In Tardrew, the Court listed 3 categories where a part or the whole of a sentence could be suspended: 1. Where suspension will promote personal deterrence, reformation or rehabilitation of the offender; 2. Where suspension will promote repayment or restitution of stolen money or goods; and 3. Where imprisonment would cause an excessive degree of suffering to a particular offender, for example because of his bad physical or mental condition.
    
29. Categories 2 and 3 do not apply here, in my view. Is there basis for a suspended sentence pursuant to Category 1 for the prisoner?
    
30. Proceeding from there, the extenuating factor of consent (albeit not a defence for this offence) is an important factor to take into account, together with the guilty plea and being a first offender. In my view, these can operate to recognize a part suspension of the sentence. Is a wholly suspended sentence merited, though?
    
31. I must consider the evidence and am assisted by the presentence report. There is already abandonment of the victim and the child by the victim’s parents; it is well known from cases that come before this Court that people in the victim’s position suffer stigmatization and ostracization by the community, even from their own family. This in itself is a punishment on the victim.
    
32. It would appear then that the person who is prepared to care for the victim and child is the prisoner; he has given an undertaking to do so in his allocatus and in his responses in the presentence report, certainly his former employer is willing to re-employ him to that end. However, there is no certainty that the prisoner will take up the responsibility to maintain the child; ultimately, this will come down to his character and his attitude for his actions.
    
33. For now, though, I do not think this is sufficient basis to wholly suspend the sentence. After all, as I described above, this was a constructed beach of trust by an adult man of a teenage girl. It is a serious offence, notwithstanding consent; he must be held to account to the accepted standards of our society and the reasons why the Code was amended.
    

Sentence

34. In these circumstances, I note the sentencing discretion given to the Court under Section 19 of the Code, and I cite Kumbamong v The State (2008) SC1017 as well. The orders I make as to sentence in consideration of all the discussions above are these:
    
    1. Head Sentence of 8 years.
    2. Less 11 months in remand.
    3. 12 months are suspended in recognition of the plea.
    4. 12 months are suspended in recognition of the extenuating factor of the presence of consent.
    5. 12 months shall be further suspended if K 3,000.00 is paid to the victim by or before 28 February 2026, which is to be used for her and the child’s upkeep. The Public Solicitor is to file an affidavit deposing to proof of payment and will inform the Court at the first Court Circuit to Vanimo, Sandaun Province, in 2026.
    6. Balance of 4 years and 1 month is to be served IHL.
       

Lawyer for the State: Acting Public Prosecutor
Lawyer for the prisoner: Public Solicitor