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State v Kiake [2016] PGNC 535 (19 May 2016)

N7892

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 471 OF 2016

THE STATE

V

JACK KIAKE

Daru: Koeget, AJ
2016: 19^th May

CRIMINAL LAW- Indictable offence – Sexual Penetration of a child under the age of 16 years – section 229A(1) of the Criminal Code – sentence on guilty plea – Exercise of Court’s discretionary powers under section 19 of the Criminal Code Act.

Cases Cited

Nil

Counsel:

Public Prosecutor, for the State
Public Solicitor, for the Accused

19^th May, 2016

1. KOEGET AJ: INTRODUCTION: The accused is charged with one count of Sexual Penetration of a girl under the age of sixteen years. The charge is brought pursuant to section 229A(1) of the Criminal Code Act (as amended). The accused pleaded guilty to the charge so he was convicted accordingly.

FACTS

2. On the morning of Sunday 27^th of December, 2015 between 7 o’clock and 8 o’clock in the morning, the accused was at Seweremabu Corner in Daru, Western Province. The accused’s wife went out to the shop to buy breakfast for the family and he sent his two young sons to the tuckshop to buy scones. The victim in this case, an adopted daughter of the accused wanted to escort her brothers but the accused blocked her path with an iron rod and threaten to hit her with it. He pushed her on to the bed and removed her clothes. She struggled but he was too strong for her and he closed her mouth with his hand so she could not shout for help.
The accused forced her to lay down on the bed and he removed his cloths and insert his penis into her vagina. He had sex with her till he ejaculated sperm into her vagina.

3. Both sat naked on the floor after the sex when the accused’s wife arrived and saw them sitting naked side by side. The incident was reported to the village court peace officers who assisted in apprehension of the accused and the matter was eventually reported to the police in Daru resulting in the arrest of the accused.

ISSUE

4. The issue for the court to determine is what is the appropriate sentence the Court should impose upon the prisoner?

LAW

“Section 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 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, subjection to section 19, to imprisonment for life.”

PERSONAL PARTICULARS

5. The prisoner is 38 years of age and is married with four children. All children are in Daru residing with the mother.

6. He is employed by Department of Education as an Elementary school teacher at Monfort Primary school in Daru, Western Province.

AGGRAVATING FACTORS

7. The victim is the adopted daughter and he raised her from the age of 3 years till to the date of the offence. She regarded him as father and so the prisoner abused trust, dependency and authority.

MITIGATING FACTORS

8. The prisoner has no prior convictions. He admitted commission of the offence to the police and in court, he pleaded guilty to the charge so he cooperated well with the police and saved valuable time of the court.

SENTENCE

9. The victim is the adopted child of the prisoner. He raised her up from childhood till the date of the offence and so she regards him as her father. The prisoner threatened the victim with an iron rod and forcefully had sexual intercourse with the victim. He abused trust, dependency and authority. She does not know who will protect her in the future as she cannot trust the prisoner anymore.

10. The victim suffered no permanent physical disabilities from the incident but she lives in fear of the prisoner. Such factors are considered serious by courts in the face of growing pressures from communities for protection of women and children from persons like the prisoner.

11. So the prisoner is sentenced to be imprisoned for 9 years, 7 months and 2 weeks in hard labour at Daru Corrective Institution Services.
__________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused