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State v Wanapa [2024] PGNC 143; N10733 (5 April 2024)

N10733

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 843 OF 2022

THE STATE

V

JACK WANAPA

Waigani: Miviri J
2024: 08^th March, 5^th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – S229B (1) (b) & (4) CCA Trial Count 2 Sexual Touching of – Credibility of Accused Incredible contrary to Common Sense & Logic – Complainant count 2 Credible witness – Evidence Given with Truthfulness – Accused Evidence rejected – State Evidence Upheld – Guilty of Count 2 Sexual touching of a Minor under 12 years old.

CRIMINAL LAW – PRACTICE AND PROCEDURE – S229B (1) (b) & (4) CCA sexual Touching of Minor Under 12 years – 2 Counts Against 2 Complainants – Persistent Sexual Abuse Section 229D (1) (6) CCA – Guilty Plea 1 Count Sexual Touching – Guilty Plea 1 Count Persistent Sexual Abuse Section 229D (1) (6) CCA – Cumulative Sentence – Different Victims, & Time, & date – Totality Principle – Proportionate Sentence – Large Age Gap – Repeated Offences – Well Planned – Strong Deterrent & Punitive Sentence.

Facts
Accused sexually touched his three grandchildren two aged 9 years old, and the third 7 years old by rubbing his penis on their body. And telling two of them to hold his penis masturbate him until ejaculation. He also anally penetrated the male child repeatedly over the period. Who became ill as a result leading to uncovering the matter after enquiry was raised from it. Matter was reported to police he was arrested and charged.

Held
Guilty plea sexual touching count 1.
Guilty plea to persistent sexual abuse count 3.
Not Guilty count 2
Trial.
Evidence of Complainant preferred.
No reason to doubt.
Defence general denial.
Guilty of Count 2.
Serious abuse of trust Authority & Dependency
Three grandchildren
Tender aged
Protection of the young
56-year-old man.
Cumulative Sentences.
Separated by time Date and different victims.
Totality principles.
Strong Deterrent & Punitive Sentence.

Cases Cited:
Beraro v The State [1988-89] PNGLR 562
Balbal v State [2007] PGSC 16; SC860 (22 February 2007)
State v Merriam [1994] PNGLR 104
Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998)
Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009)
John Elipa Kalabus v The State [1988] PGNC 120; N604 (27 October 1988)
Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006)
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85
Mase and John v The State [1991] PNGLR 88
State v Fego [2024] PGNC 14; N10663 (21 February 2024)
State v Peter Lare [2004] PGNC 218; N2557 (20^th May 2014)
State v Kutetoa [2005] PGNC 137; N2814 (22 March 2005)
State v JB [2007] PGNC 66; N3224 (20 September 2007)
State v Jonathan [2008] PGNC 31; N3315 (12 March 2008)
Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008)
Koribiseni v State [2022] PGSC 90; SC2296 (25 August 2022)
Paul v State [2017] PGSC 33; SC1630 (3 November 2017)
Wartovo v State [2019] PGSC 11; SC1775 (1 March 2019)
Sabiu v State [2007] PGSC 24; SC866 (27 June 2007)

Counsel:

19. Patatie & A. Bray, for the State
20. Yapao, for the Defendant
    

SENTENCE

05^th April 2024

1. MIVIRI, J: This is the verdict of a grandfather aged 56 years old accused of the offence count number 2 on the Indictment preferred contrary to Section 229B (1)(b) & (4) of the Criminal Code Act.
   
2. Section 229B Sexual Touching is in the following terms: -

“(1) A person who, for sexual purposes –

(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or
(b) compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person’s own body,

is guilty of a crime.

Penalty: Subject to Subsection (4) and (5), imprisonment for a term not exceeding seven years.

(2) For the purposes of this section, “sexual parts” including the genital are, groin, buttocks or breast of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.

(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

(5) 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 to imprisonment for a term not exceeding 12 years.

3. He was charged with three counts, firstly, sexual touching contrary to section 229B (1)(b) & (4) which comprised of the first Count and the second count. He has admitted the first count of sexual touching contrary to section 229B (1) (b) & (4) and persistent sexual abuse contrary to section 229D (1) and (6) of the Criminal Code Act. The evidence in the file in respect of both have not been read awaiting the trial on the second count of sexual touching of the complainant Gracelyn Rebecca, 7 years old.
   
4. He was arraigned on the following facts, that he Jack Wanapa of Abadi village Balimo Western Province is the 56-year-old paternal grandfather of Martin Sibiya, Juddy Dupa and Gracelyn Rebecca. Together they were resident with him at Hohola 4, Granville Block, Port Moresby. Martin Sibiya was born on the 04^th February 2022. Between 01^st February 2020 and 11^th February 2021 he was 9 years old. The Accused sexually abused Martin during that period. On an unspecified date between that period after dinner, accused asked Martin, “You want it?” Martin replied, “I don’t want it” and went to bed, the accused then told Martin to follow him to the mountain. There he removed his zipper and sexually penetrated Martin by inserting his penis into Martin’s anus. Martin felt pain in his anus and stomach and cried.
   
5. On the following day the Accused took Martin to the mountain where the fireplace is, when they returned home, he took Martin into the house and sexually penetrated him by inserting his penis into Martin’s anus.
   
6. On another occasion between the specified period during the night, after dinner Martin and his family watched TV, the accused came and told Martin to follow him to the bush, he told Martin to go first, and he followed after. In the bush he sexually penetrated Martin by inserting his penis into Martin’s anus. He told Martin not to report it to his parents and promised that he will give him K2.00.
   
7. Further on an unspecified date between 01^st February 2021 and the 11^th February 2021, the Accused told Martin, Juddy and Rebecca to follow him up to the mountain to collect glue from the tree. At the mountain he compelled them to lay down, he got on top of them and rubbed his penis on their stomach. He then lured Martin and Juddy away from Rebecca. He asked two of them to lay down, took his penis out and told them to masturbate his penis with their hands until he ejaculated, he then cleaned himself up and showed them pornographic material on his phone.
   
8. On another occasion between 01^st February 2020 and the 11^th February 2020, Martin and his Dad were on their way to Daru, at the airport the accused took Martin into the restroom (toilet) and sexually penetrated Martin by inserting his penis into Martin’s anus. When he was done, he told Martin to quickly wear his pants because the plane was about to take off.
   
9. The last incident happened at the Accused workplace, Martin returned from Daru on an unspecified date the Accused took Martin to his workplace and sexually penetrated him by inserting his penis into Martin’s anus. The matter came to light when Martin felt pain in his stomach, he reported the matter to his parents and uncles. The matter was then reported to the Police where accused was apprehended. When the accused sexually penetrated Martin on the multiple occasions his actions contravened section 229D (1) and (6) with circumstances of aggravation under section 229A (3) of the Criminal Code.
   
10. And when he touched with his penis the stomach of Rebecca, his actions were unlawful thereby contravening section 229B (1)(b), (4) of the Criminal Code.
    
11. And when he told Juddy to touch his penis and to masturbate him, his actions were unlawful thereby contravening section 229B (1)(b)(4) of the Criminal Code.
    
12. The matter proceeded to trial on the determination of the second count because of the not guilty plea that he did not sexually touch the complainant Gracelyn Rebecca. State called her initially conducting a preliminary enquiry as to her understanding as a witness. What she was required of her in Court. And whether she understood the importance of telling the truth in her evidence. And why it was important to tell the truth. She satisfied this initial preliminary enquiry that she was before the National Court. And it was important that she tell the truth. And she believed in Jesus because she used to go to Sunday School. That She knew it was wrong to tell untruths before Jesus. He was God, em Bikpela. And she knew who he was. Having viewed her in the preliminary enquiry I was satisfied that She knew what it meant to tell the truth and so directed for her to be sworn to give her evidence.
    
13. In her sworn evidence She identified the Accused Jack her grandfather who had taken her with Martin and Juddy up the mountain. There he took out his penis and placed it on her stomach together with the two others, Martin and Juddy. She maintained that story despite the defence suggesting that it could not be possible if she was lying down. He would have to be lying on top her to be able to put his penis there. She maintained that he did place his penis on her stomach with the other two children.
    
14. Accused denied that he did what she contended but admitted to taking her up to the mountain with the other children to collect firewood. He gave no reason why she was telling that fact against him. Nor did he give any motive as to why she was telling that story about him taking out his penis and placing on her stomach with the other two children. Then taking the other two secluded away from this child.
    
15. She is the granddaughter of the accused, who is grandfather paternally. She understands fully as to telling the truth after that initial enquiry to establish. I find no fault to doubt the veracity of her evidence. A child of her age, 7 years would not be fluent in sexual activities as does a mature grown person. She is not even of puberty to come to that level to understand sexual life. Her evidence was given in a forthright way. She answered straight and without hesitation. She did not pause, nor did she look around for words to describe what happened to her. She was outspoken in her evidence and was immediate to response to the questions posed her. She was confident in what she saw and heard and did on that day. It was daytime and she saw the accused an immediate relative. I find no reason to doubt the veracity of her evidence. I find her to be a truthful witness. I uphold her evidence and reject the denials of the accused. He was calculated and waited in his answer. He was not a confident witness. It did not make sense when a child made up that story of him placing his penis on her stomach. He gave no plausible reason why she would give that story. She in my view has brought to light in every detail what was settled in Beraro v The State [1988-89] PNGLR 562. Which is settled law observed affirmed in Balbal v State [ 2007] PGSC 16; SC860 (22 February 2007). There is no reason to hold that she has not told the truth. It is not the case for the accused when considered in the light of State v Merriam [1994] PNGLR 104. Simply put he has placed no plausible explanation or hypothesis as to why she would be telling that story against him.
    
16. I find him to be lying and that he had placed false evidence generally denying. That in my view corroborates the account of the little girl complainant and would be corroborating her account within the law settled in Jaminan v The State [1983] PNGLR 318. I find that the accused had the opportunity and did commit the offence because her evidence is consistent with common sense and logic. I reject his evidence as not consistent with common sense and logic, Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). The aggregate is I find the accused guilty of count 2 on the indictment dated 08^th March 2024 that he did between 01^st February 2021 to the 11^th February 2021 at Granville Block, Hohola 4 National Capital District compelled Gracelyn Rebecca Kewa a child under the age of 12 years, being aged at that time 7 years old to touch with a part of that child’s body, her stomach, the penis of the Accused own body. That charge has been sustained and I enter a verdict of guilty.
    
17. I do so further because the State tendered into evidence her statement to Police dated 23^rd February 2021 which was marked as Exhibit P1(a) the original pidgin version and P1(b) was the English translation of that statement. Exhibit P2 was statement of Dabada Kobua first Constable of Police attached to the crime scene Photography section of Forensic Services of the Royal Papua New Guinea Constabulary. There were twenty (20) Photographs that he took accompanying showing the scene of the crime and surrounding leading up to the mountain where allegedly the offences took place against the victim at the hands of the accused. Including where anal sexual intercourse took place with the complainant Martin Sibiya, 9 years old. All offences took place away from any help. They appeared to have been carefully planned out so that the victims were taken away out alone where they could not easily get help if they wanted to. And that is why the offences never came to any detection within that time. A sensitive matter it could not come out from the lips of the complainant victims.
    
18. Further Exhibit P3 was statement of Maria Nombri police investigator in sexual offences squad Boroko Police Station. Her evidence was to do with the conduct of the investigation in the matter after receiving the complaint. What she did to collect all evidence leading to the record of interview and charging of the Accused. Exhibit P4 was the medical affidavit sworn of 23^rd February 2021 by Health Extension officer Solange Haputo of the Port Moresby General Hospital. Materially she conducted the examination of Gracelyn Rebecca on the 23^rd February 2021 at the Family Support Centre of the Port Moresby General Hospital. And the medical report she made could not confirm or deny that she was sexually touched as the father refused medical examination.
    
19. Exhibit P5 were 12 photographs showing the creek forested nearby and mountain uninhibited so that when the victims were taken out there by the accused, they were at his mercy. Because they were simply secluded spots obscured hidden so that the offences could be perpetrated at will by the accused. Because they could not raise any help if they wanted to, there were simply no houses, or appearance of habitation nearby. Detection of the offence from eyes of by standers, or any other persons was simply not possible. Exhibit P6 was the clinic book of Gracelyn Rebecca who was born on the 29^th July 2014 at the Port Moresby General Hospital. It established that she was 7 years old and therefore under 12 years old satisfying that element of the section 229B (4) of the code. It has been established beyond all reasonable doubt that the accused had sexually touched the complainant Gracelyn Rebecca for the reasons I have set out above I determine that he is guilty of count 2 on the indictment.
    
20. In respect of counts 1 and count 3 I have now read the file and confirm his provisional plea of guilty to both counts. I convict him of count 1 that he between 01^st February 2021 to 11^th February 2021 at Granville Block, Hohola 4, National Capital District in Papua New Guinea compelled Juddy Dupa a child under the age of 12 years, being aged at that time 9 years old to touch with her hand the penis of the Accused contrary to section 229B (1) (b) and (4) of the Criminal Code Act.
    
21. And further I convict him of count 3 that he between 01^st February 2020 to 01^st February 2021 at Granville Block, Hohola 4, National Capital District in Papua New Guinea on two or more occasions engaged in conduct amounting to an offence against Division 1V.2A (sexual Offences against Children) of the Criminal Code with Martin Sibiya, the times and conduct being specified in the Schedule, contrary to section 229D (1) and (6) of the Criminal Code Act. His assertion is positive from the healing laceration noted all around the anus by the nursing officer Christine Waure when examination was done on the child Martin Sibiya on the 19^th February 2021 at 1.30pm. Report filed as dated attached to affidavit of the officer.
    
22. I now determine what sentence is appropriate against the prisoner now guilty of all three counts of that Indictment dated the 8^th of March 2024. He was 56 years old at the time of the offences. Three years has lapsed since so at sentence he is 59 years old. He is a first offender originally from Adiba village in Balimo, Western Province. He was educated to grade 6 at the Adiba primary school in 1975, Balimo, Western Province. He has employment experience as a security guard in various firms for thirty years earning K 300 to K400 which is mainly used to sustain his family. He is a married man with three children living at the immediate area where he committed the offence for over 30 years. He is trustworthy and responsible person who sustains his wife and three children. He does not have any evidence of any medical issues but aspires to preach the word of God if he comes out of prison. He practises and is of the United Pentecostal Assemblies of PNG and is now spiritual leader in Cell A5. His local pastor one Saiya Sibili supports that he is generally law abiding prioritizing his family’s welfare. And would support and supervise him should he be considered for a non-custodial term. These are details that have come out of the tendered presentence report ordered by Court now before me for consideration for an appropriate sentence against the offender.
    
23. In that report is also views expressed by Wau Sibiya mother of Martin Sibiya the complainant that the offence is inhuman, and the trauma caused her child has caused tension between the families. It would be wise to solve the matter traditionally but that the offender serves his time non custodially, but in a different location. And in this regard would accept any reconciliation for restoring peace and harmony. In addition, the elder brother of the prisoner gave an account of the apprehension of the prisoner who was assaulted badly by the relatives and the community immediate sustaining bruises, cuts, and wounds to his body. His clothes were stripped off and he was naked and walked almost 1km to the hohola Police Station. He was pushed into the drain and laid unconscious several times and he was also beaten by Police at Hohola Police Station. And that this was a lesson to him to refrain from similar conduct in future.
    
24. The offence is a crime of violence here committed by the paternal grandfather of the three young children aged 9 years for two and 7 years for one. Obviously, it is a very serious and blatant breach of trust authority and dependency between grandfather and grandchildren. Not just a single grandchild but three grandchildren. And repeated over a period of time without concern for their welfare, except his own self gratification sexually. The boy has suffered from the victim impact statement and the medical report on file prepared by the Health Extension Officer. It is a very well planned and executed offence therefore it was not detected for a quite a while for the length of time it flourished to the detriment of the victims, but to the gratification of the prisoner. Children must be protected from people like the prisoners and others with similar inclinations.
    
25. By Section 229B (1) read together with subsection (4) and (5) prisoner is liable to be imprisoned for a term not exceeding 12 years. Because the child Juddy Dupa is 9 years old. And the child Gracelyn Rebecca is 7 years old. Both children are under 12 years old at the time of sexual touching. Juddy Dupa’s clinic book evidence that she was born on 5^th September 2011. And Gracelyn Rebecca was born on the 29^th July 2014, so she was 7 years old at the time of the crime. All three children are under the age of 12 years old. In the case of persistent sexual abuse pursuant to section 229D (1) and (6) read with section 229A (3) prisoner is looking at life imprisonment as the maximum penalty. His case is not the worst case of its kind and so will not draw that sentence. Nor would it draw the maximum of 12 years imprisonment for the sexual touching in both counts. He does not go on par with John Elipa Kalabus v The State [1988] PGNC 120; N604 (27 October 1988), so he will draw a determinate term of years particularly in the light of all I have set out above.
    
26. It is material to set out section 229D Persistent Sexual Abuse of a Child which is in the following terms: -

“(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: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and
(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and
(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.”

27. There is more than one act of penetration against Martin Sibiya 9-year-old grandson of the prisoner. Therefore, the maximum sentence is life imprisonment. It is not the worst offence so he will not be accorded that maximum. But certainly a determinate term. He is not a youthful offender but is of advanced age now in his 59 today for sentence. On the other hand, the complainants are minors of very tender age whose plight has been specifically addressed in the penalties that have been prescribed against for the criminal conduct by the Legislature. He is 56 years old at the time of the commission of the offences. From the last known date of the offence to today 5^th April 2024, he is about 59 years old as three years have since lapsed. That is advanced age, which will be taken into account in the sentence to be passed upon him. It will be balanced against the fact that all three are under twelve years old. Two are 9-year-olds and the last is a 7-year-old. And are his paternal grandchildren. It is a very serious abuse of trust authority and dependency. It will be against the material facts to which the prisoner has pleaded guilty to: Yalibakut v State [2006] PGSC 27; SC 890 (27 April 2006). I have set this out in detail above relating to the two counts.
    
28. He must be accorded benefit in the sentence due him under count 1 and 3 simply because he has pleaded guilty. And in so doing he has saved the girl complainants who are children of tender age to come and testify in this court. Whatever sentence due will accommodate this fact. Including the fact that both are separate offences by time date and the victim against, in this offence and the conviction that has followed after trial in the matter of count 2 on the indictment of sexual touching of the stomach of Gracelyn Rebecca. It is against a different victim altogether and is demarcated by time and date and so will draw its own sentence. But all will be determined as to whether or not they are proportionate on the basis of totality: Kerua and Kerua, Public Prosecutor v [1985] PGSC 8; [1985] PNGLR 85. That is the way the sentences here will be considered particularly in the light of the fact that all are different offences against different victims, at different times and places. Except for the totality principle all will draw their individual sentences by their facts and circumstances: Mase and John v The State [1991] PNGLR 88 where armed robbery abduction and rape was considered whether individual sentences were appropriate or cumulative and the totality principle. Each victim has been violated and must see justice in the sentence individually. Totality will iron out proportionality.
    
29. The seriousness of the offences is depicted out by their multiplicity over that period of time upon the victims, two are 9 years old and the other is 7 years old. The age gap between, firstly of the 9-year-old against himself is 47 years difference. In the case of the 7-year-old, it is 49 years difference. They are certainly large and disproportionate, and the repeat of the offences signify that he was adamant and determined to carry them out without any restraint or draw back that he was doing wrong upon his own grandchildren. He was planning the execution of the offences so that they were carried out efficiently and to his satisfaction. He lured them away from help at hand to secluded areas where they were at his mercy to do as he pleased. He was satisfied and gratified of his sexual desires to the detriment of the complainants. Had it not been for Martin falling ill with the pain to his stomach, the offences would not have been uncovered.
    
30. This fact is independently verified by the victim impact statement made to Court dated 28^th March 2024, filed of the 04^th April 2024. Materially this set out, “On the last day when my “Bubu” wants to take me out I felt pain in my tummy and my anus. I lost a lot of weight, I went informed my parents, and they beat him, but he denied it. My mums took me to the hospital, I did not feel good, my tummy ached, I could pass waste easily, when I go to the toilet I sit there for a very long time, my anus hurts, and my tummy hurts so I pass little excrete. Other times I don’t because of the pain. The nurse that checked me checked my entire body. She gave me medicine and sent me home, this helps with the pain.” He has suffered ridicule and humiliation when his peers have heard of the offence upon him. He has refrained from going out alone either on chores that he has been allocated. He is always now tied closely with his mother and gets angry quickly. He does not answer back quickly often has lapses in responding to when asked. The offence has changed his character as he is fearful when spoken to harshly or sternly. Similar reports have not come in respect of the young girls.
    
31. He made him suffer so that he could satisfy himself. And it was repeated at different location, time, and date, spread over that period of time. He did not care if the boy was not willing, he imposed it upon him. Even at the airport when it was public frequented area, he was not deterred at all. He sought out to have him in a public toilet to satisfy his lust and sexual urges. He was so selfish and self-centred that nothing mattered in his wake to satisfy himself. That is also the dawn on the too small girls. It did not revolt that these were his paternal grandchildren of very tender age. He did not step up to care for them but chose to abuse them. Mercy is not one sided but to both sides of the matter. Here I take due account of his allocutus, in particular his apologies to the Court, to the victims for what he had done to them. And to God almighty and his thanks to all government officials in handling his case including the CIS. That all be blessed for their efforts. His sentence will settle this out including his guilty plea to the two counts.
    
32. When an adult grown man as here takes advantage of the vulnerability of young innocent tender aged children as here, of 7 and 9 years respectively, it is a crime of abhorrence, repulsion and should not be tolerated beyond necessity. Quite clearly it must and ought to be stamped out with stern deterrent and punitive sentences. That is clear from the attitude of the public demonstrated when he was apprehended and taken to face the law. Even the police took it upon in the same sense. It rightly is a lesson to the prisoner but to bring to reality the picture seen by the Legislature in drawing the sentence as it did. And this is not the first time this offence will come before this Court. It has come before in State v Fego [2024] PGNC 14; N10663 (21 February 2024), where four counts, firstly of persistent sexual abuse pursuant to section 229D (1) and (6), sexual penetration with a finger section 229A (1) (2) of the Criminal Code. And sexual touching pursuant to section 229B (1)(b)(4) of the Criminal Code. And indecent act pursuant to section 229C (1) (2) of the Criminal Code. He had pleaded guilty to the four counts and was sentenced to 40 years IHL but reduced on totality to 30 years IHL.
    
33. Here therefore sentence will be increased with the aggravating features which in my view include the ages of the child victims here: State v Peter Lare [ 2004] PGNC 218; N2557 (20^th May 2014)12 years IHL was imposed upon a 40-year-old prisoner who pleaded guilty to sexual penetration of a 10-year old girl repeatedly over time. In State v Kutetoa [2005] PGNC 137; N2814 (22 March 2005) a 39-year-old prisoner was sentenced to 17 years in jail for sexual penetration of a 10-year-old girl. He had pleaded guilty to the charge under section 229A of the code. In yet another case before this court in kokopo State v JB [2007] PGNC 66; N3224 (20 September 2007) he had persistently abused his 13- and 15-year-old daughters he was sentenced to 26 years IHL but reduced to 20 years on the totality principle. In the State v Jonathan [2008] PGNC 31; N3315 (12 March 2008) persistent sexual abuse of a 13-year-old girl who became pregnant drew 18 years IHL for persistent sexual abuse contrary to section 229D the penalty provision had the maximum sentence of life years similar to section 229A.
    
34. It is not erroneous to hold that sentencing discretion is never fettered or dictated in a certain direction or position. Because all matters raised in a case must be considered to the full extent due in law relevant with all other matters that are before it to arrive at a just sentence. The wishes expression of the victim are part and parcel of and together with all other matters that are placed before court will be given due weight according to law the facts and circumstances to arrive at a just sentence in law. Sentencing is not dictated or tied down by tariff or range but dependent on the facts and circumstances and tariff or range will be part of the process and will be considered on the level due to it: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). Being proportionate is not by mathematical formular but due consideration in law including consideration of the principles of totality to arrive, Koribiseni v State [2022] PGSC 90; SC2296 (25 August 2022). Supreme Court upheld the appeal on sentence and overturned the initial warrants issued pursuant because of excessive exercise of discretion against the sexual penetration and touching convictions. Consent is not an element of both convictions but is a very relevant factor to account for trust authority and dependency as is the case here: Paul v State [2017] PGSC 33; SC1630 (3 November 2017). Which is an aggravating feature that will see sentence parallel for seriousness evidenced. Twenty-two (22) years for persistent sexual abuse contrary to section 229D (1) and (6) at first instance was confirmed by the Supreme Court and the appeal dismissed in Wartovo v State [2019] PGSC 11; SC1775 (1 March 2019).
    
35. And 17 years imprisonment was confirmed and the appeal dismissed in Sabiu v State [2007] PGSC 24; SC866 (27 June 2007). He had pleaded guilty to sexual penetration of a 6-year-old boy anally who suffered bruising, bleeding and pain as a consequence like in this case. He was the nephew of the prisoner, mother of the victim his sister. He explained that he committed the offence because he was not paid part of the bride price. In dismissing his appeal against sentence, the court remarked that the sentence was not out of reasonable proportion to the crime of sexual penetration of a minor under 12 years old. I hold the same view particularly considering that this is a guilty plea, and the offender is 59 years old. But he was fit enough to commit the offence upon a 9-year-old grandson. That sentence was imposed in 2007 it is now 2024 and the offence is ever prevalent. It must be stopped with punitive and deterrent sentences.
    
36. In my view the appropriate sentence here given his facts and circumstances would be 20 years imprisonment IHL. It is in my view proportionate to the offence which was perpetrated here. The sentence for the third Count pursuant to section 229D (1) and (6) of the Criminal Code is therefore 20 years IHL and I so impose that upon the prisoner. It will be served cumulatively to the other two counts. But the difference will be in the period deducted on the principles of totality.
    
37. For the conviction on the First Count of sexual Touching pursuant to section 229B (1) (b) and (4) of the Criminal Code Act, the prisoner is sentenced to 5 years imprisonment IHL.
    
38. For conviction on the Second Count of sexual Touching pursuant to section 229B (1) (b) and (4) of the Criminal Code Act, the prisoner is sentenced to 6 years imprisonment IHL because that is a trial.
    
39. As both offences are of two different victims committed over time separated each sentence will be cumulatively served. So effectively that is a total of 11 years imprisonment in hard labour for both offences.
    
40. All sentences are cumulatively to be served effectively that is 31 years imprisonment in hard labour. By itself that is excessive, and disproportion given the principles of totality set out above. Therefore, in the exercise of my discretion pursuant taking account that he has pleaded guilty to two of those counts, and is a first offender of an advanced age, which I hold to be 59 years, I deduct 7 years from the head sentence imposed. Effectively he will serve the balance of 24 years IHL in prison.
    
41. I order that time on remand will be deducted from that 24 years IHL. He will serve the balance in jail forthwith.
    

Orders Accordingly
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Public Prosecutor: Lawyers for the State
Public Solicitor : Lawyers for the Defendant