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Muma, The State v [1995] PGNC 140; [1995] PNGLR 161 (24 August 1995)

PNG Law Reports 1995

[1995] PNGLR 161 - State v William Muma�

[1995] PNGLR 161

N1371

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

STATE

V

WILLIAM MUMA

Kundiawa

Injia J

22 August 1995

24 August 1995

CRIMINAL LAW - Sentence - Unlawful carnal knowledge - Victim aged 4-6 years - Substantial compensation demanded by relatives of victim and paid by the defendant and his relatives - Inappropriateness of compensation payment where victims of offences are small children - Criminal Code Ch 262, s 213; Criminal Law (Compensation) Act 1991, s 2.

Facts

The accused was alleged to have had unlawful carnal knowledge of the victim female under the age of six years, contrary to s 213(1) of the Criminal Code that reads:

�A person who has unlawful carnal knowledge of a girl under the ge of 12 years is guilty of a misdemanour. Penalty: Subject to s 19, imprisonment for life.�

The accused and the victim were from the same village and were part of an extended family. By giving 20t to the victim, the accused induced her to his house and had sexual intercourse with her.

A total compensation of K1,010 in cash and 3 pigs valued at K800, in aggregate, were paid to the victim�s parents and relatives after it was sought by them. On the part of the accused, the compensation was paid on the understanding that the matter would be settled in the village and not pursued further in Court.

Held

N1>1.������ In a case where small children are the victims of crime, including crimes of a sexual nature, payment of compensation to the relatives of small children should not be allowed or encouraged.

N1>2.������ A compensation order for the future payment of compensation under the Criminal Law (Compensation) Act 1991 is not appropriate where the victims of the crime are small children.

N1>3.������ Obiter: Where substantial compensation is demanded by the victim child�s relatives and paid by the accused prior to his trial, it may nevertheless be taken into account as a mitigating factor on sentence.

N1>4.������ The accused was convicted and sentenced to 5 years imprisonment less 4� months the period spent on remand.

Counsel

R. Johnson, for the State.

G. Gendua, for the accused.

24 August 1995

INJIA J: I found the accused guilty of having unlawful carnal knowledge of one Maria Yabuko, a female infant aged between 4-6 years old, contrary to s 213(1) of the Code. The maximum punishment for this offence is life imprisonment.

The accused gave 20t to the victim and induced her to go to his house during the day-time and inserted his fingers into her vagina and also, as the medical report showed, used his penis over the girl�s vagina. The medical report showed that the hymen was torn and sperm was found in the girl�s vagina showing that the accused penetrated the girl�s vagina with his penis and achieved ejaculation. The victim was crying and coming onto the road from the accused�s house when her mother met her. According to the medical report, no other injuries to other parts of her body were seen.

The accused and the victim are related in that they are from the same village and part of the same extended family. They are also neighbours. Furthermore, the accused is also like a brother to the victim because the victim is the namesake of the accused�s mother.

For the offence, the accused and his wife Maria Willy paid compensation of K1,010.00 plus 3 pigs worth K700.00, K60.00 and K40.00 respectively. This compensation was sought for by the victim�s parents and relatives and paid before the presence of Village Court Officials and Gembogl police. The accused and his wife willingly paid compensation on the understanding that the matter would be settled in the village and not taken before this court. However, after having received the compensation, the victim�s relatives and Gembogl police still pursued the case and now he has been found guilty by this court and about to be sentenced.

There is no doubt that substantial compensation has been paid at the insistence of the victim�s relatives. The payments were made in three lots, the first payment of K60.00 was made in Mt. Hagen, the second payment of K800.00 plus 3 pigs at Gembogl and the last payment was the refund of the accused�s K150.00 bail money which was paid to the victim�s father at the Kundiawa Courthouse. Whilst it is true that compensation was paid to harmonise the differences between the accused and the victim�s relatives caused by the offence, the victim was not really compensated for the wrong done to her. She was too young to recognise and appreciate the efforts made between the two sides to normalise their relationship. She was also too young to appreciate the value of the compensation payments and benefit from it. That is one of the reasons why payment of compensation in cases where small children are the victims of crime, including offences of a sexual nature should not be allowed. People should let the law deal with these kinds of crimes. Police should also never be a party or seen to allow or encourage these kinds of payments. And so whilst I approve of the police and the victim�s relatives in pursuing this case in the court, I do not endorse the actions of the victim�s relatives in requesting for and receiving payments of compensation. If compensation were not yet paid and the accused asked this court to make a compensation order as part of punishment under the Criminal Law (Compensation) Act 1991, I would not hesitate to rule that a compensation order would not be appropriate under s 2 of that Act. Now that compensation has already been paid, I will take it into account as a mitigating factor. There is no doubt that the payment of compensation for an offence which took place within the extended family will serve its intended purposes.

This is the accused�s first offence. He is a man of prior good character. He is a married man and the accused is a subsistence farmer and has lived all his life in the village. I take into account all these factors in his favour.

The offence of unlawful carnal knowledge of small girls is a serious offence for which the maximum punishment is life imprisonment. This offence is treated seriously by the legislature in order to protect small girl�s from being physically and sexually assaulted or molested and corrupted by men like the accused. In the instant case, there is evidence that the victim�s vagina was damaged. Her hymen was ruptured pre-maturely. She was crying and appeared stressful and disturbed at the time when her mother saw her coming out of the accused�s house. Although there is no medical evidence of this, there is no doubt that she has been emotionally and physically hurt and corrupted. This incident will no doubt have a lasting painful memory in her mind for the rest of her life, especially of knowing that someone very close to her did this to her. In the past, this court has imposed strong punishment as a deterrent. Here in Kundiawa, in the last four circuits covering some eight months, I have imposed sentences ranging from 2-4 years but those are in uncontested cases. This is a contested case. Nevertheless, in view of the presence of mitigating factor which I have referred to, especially the payment of compensation, and the fact that there is no evidence of any permanent disability occasioned to the victim, I consider that a sentence of 5 years imprisonment in hard labour is appropriate and impose the same. From this I deduct the period of 4 � months in custody. He will serve the balance of 4 years and 7 � months.

Lawyer for the State: State Prosecutor.

Lawyer for the accused: Public Solicitor.