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State v Daop [2018] PGNC 575; N7757 (25 October 2018)

N7757

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1090 OF 2018

THE STATE

V

KENMOK DAOP

Kiunga : Koeget, J
2018: 19^th & 25^th October

CRIMINAL LAW- Indictable offence – persistent sexual abuse of a child under the age of 16 years pursuant to section 229D(i),(6) of the Criminal Code Act – Abuse of trust, dependency and authority

Facts

The accused is the maternal uncle of the victim and is the husband of the victim’s mother’s elder sister. The victim usually referred to him as a “father”.

The victim is a female child born on the 17^th March 2004 and at the material time she was 13 years old.

The victim and other family members lived with the accused in one house owned by the victim’s grandparents.

It is alleged that between the 1^st day of June 2016 and the 31^st day of December 2016 at Atkamba village, the accused engaged in conduct of persistent sexual abuse of the victim. The nature of the persistent sexual abuse is sexual penetration of the victim. The accused on many occasions inserted his penis into the victim’s vagina and had sexual intercourse with her.

The following are occasions that the accused engaged in persistent sexual abuse of the victim:

The first occasion occurred during the second term school holidays in the month of June 2016. The accused took the victim and other children of their family out for a camp in the bush to look for food. During the night the accused crept up onto the sleeping victim, removed her clothes, inserted his penis into her vagina and had sexual intercourse with her. When the victim woke up in pain, the accused told her to keep quiet.

The second occasion occurred around term three after term three school holidays. During that time, the accused took the victim out fishing. He led her to the nearby bushes and sexually penetrated her by inserting his penis into her vagina and had sexual intercourse with her.

The third occasion also occurred around term three, after term two school holidays. The victim went home from school for lunch and the accused inserted his penis into her vagina and had sexual intercourse with her.

The fourth occasion occurred on the third week after third occasion. The accused took the victim out in the night under the pretext of hunting for flying foxes. He removed her clothes, laid her on the ground and sexually penetrated her by inserting his penis into her vagina and had sexual intercourse with her.

The fifth occasion occurred on a weekend after the fourth occasion. Whilst out fishing, the accused took the victim to nearby bushes and sexually penetrated her by inserting his penis into her vagina and had sexual intercourse with her.

The sixth occasion occurred a week after the fifth occasion. The accused took the victim out in the night to hunt for bandicoots. The accused sexually penetrated her by inserting his penis into her vagina and had sexual intercourse with her.

The seventh occasion occurred around the month of September 2016. This was during the school holiday. The accused took the victim into the bushes and sexually penetrated her by inserting his penis into her vagina and had sexual intercourse with her.

The eight occasion was during the Christmas holidays in December 2016. The accused whilst out camping in the bushes led the victim through the bushes to an isolated spot and sexually penetrated her by inserting his penis into her vagina and had sexual intercourse with her.

As a result of the persisted sexual abuse, the victim became pregnant and gave birth to a child. The victim told her family that it was the accused who impregnated her.

The accused was subsequently apprehended and charged with the alleged offence.

It is the State’s allegation that the actions of the accused amounted to an offence of Persistent Sexual Abuse of a Child thereby contravening Section 229 D (1) and (6) of the Criminal Code Act.

Held:

(1) The prisoner’s actions deprived the victim’s future prospect in education to high school and colleges as she became a mother at the age of 13 years. This is a serious aggravating factor to warrant an imposition of a severe sentence.

Cases Cited

Nil

Counsel

Ms T. Aihi, for the State
J. Kolowe, for the Accused

25^th October, 2018

1. KOEGET, J: INTRODUCTION: The prisoner is charged with Persistent Sexual Abuse of a child under the age of 16 years pursuant to section 229D (1) and (6) of the Criminal Code Act chapter 262 (as amended).

ARRAIGNMENT

2. There are admissions in the record of interview.

3. The accused pleaded guilty to the charge so he was convicted accordingly.

ISSUE

4. The issue is what is the appropriate sentence the court should impose upon the prisoner?

LAW

“Section 229D: Persistent Abuse to a child.

(1) a person who, on two or more occasions engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent abuse of a child.

Penalty: subjection to subsection (6), imprisonment for a term not exceeding 15 years”.

“(6) If one or more of the occasions involved an act of penetration, an offence under subsection (1) is guilty of a crime and is liable, subject to section 19, to life imprisonment.”

PERSONAL PARTICULARS

5. The prisoner is 36 years of age and is married with biological children and one adopted child. All children are residing in the village with their mother. He is a subsistence gardener. He completed grade 6 in 1996.

AGGRAVATING FACTORS

6. Such offence is prevalent in the country. The victim became a mother at the age of 13 years. Her future advancement in education is destroyed.

7. The age gap between the prisoner and the victim is 20 years.

MITIGATING FACTORS

8. The prisoner was remorseful and apologised to the victim in court. He cooperated well with the police and in court he pleaded guilty to the charge so saved valuable time of the court.

9. He is a first time offender. He has been in custody for 7 months and 2 days before released on cash bail of K500.00.

SENTENCE

10. The prisoner is married to the older sister of the victim’s mother so the victim regarded him as a father. They lived in the victim’s grandparent’s house in the village.

11. The prisoner experienced marital problems with his wife so he used the victim for “pleasure” as he stated to the police. The prisoner used the victim as a scapegoat for his marital problems with his wife resulting in the victim becoming pregnant and now a mother at the age of 13 years of age.

12. The victim’s prospect of further education is destroyed and she will remain as a villager for the rest of her life.

13. The victim fears all men these days and in particular the prisoner because the prisoner abused the trust she placed upon him as a father. She does not know who will protect her in the future.

14. The prisoner assisted greatly in caring for the victim but he abused it to the point she regards as an enemy. She does not want anything to do with the prisoner as she is very bitter because he destroyed her future prospect of advancement in education to high school and college. In my view a severe deterrent sentence should be imposed upon the prisoner to deter others from committing similar offence.

15. So the prisoner is sentenced to be imprisoned for 25 years in hard labour. The pre-trial custodial period is deducted and he is to serve the balance of 24 years, 4 months, 3 weeks and 2 days at Ningerum Corrective Institution.

ORDER

(1) The prisoner’s cash bail is to be refunded to him.

Sentenced accordingly
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused