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State v Wii (No 2) [2024] PGNC 242; N10909 (12 July 2024)

N10909

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 568 OF 2022

THE STATE

V

JUNIOR WII
(No 2)

Minj : Miviri J
2024: 10^th & 12^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Trial – Sexual penetration Minor 12 years old – 11 years Old – Section 229A (1) (2) CCA – Penial Penetration – Injuries to Vagina – Armed with Bush knife Chased with Other Children In Plantation – Caught & Sexually Penetrated – Prisoner 17 year Old Security of Plantation Chased Victim & Others – Broad Daylight Allegation – Prisoner Admission Sexual Penetration Record of Interview – Complainant 11 years Old Reliving Emotional & Physical Trauma – Protection Young Girls & Females – Prevalent Offence – Stern Deterrent & Punitive Sentence – 15 years IHL.

Facts
Accused was in the plantation and saw complainant with other children collecting firewood. He chased them with a bush knife. The others escaped. He caught the complainant removed her trousers and his, then penetrated her vagina with his penis and had sexual intercourse with her. She was 11 years old.

Held
Sexual penetration.
11-year-old Girl.
Use of a bush knife.
Injuries to Vagina.
Emotional & Physical Trauma.
Protection of young females & Children.
15 years IHL.

Cases Cited:
State v Kenny (No 2) [2024] PGNC 201; N10848 (22 May 2024)
Meaoa v The State [1996] PNGLR 280
Kalabus v State [1988] PGNC 120; N604 (27 October 1988)
Golu v The State [1979] PNGLR 653
Simbe v The State [1994] PNGLR 38
State v Aru [2016] PGNC 424; N6917 (14 March 2016).
Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998).
State v Mokei (No 2) [2004] PGNC 129; N2635 (26 August 2004).
State v Trosty [2004] PGNC 103; N2681
Tardrew, Public Prosecutor v [1986] PNGLR 91

Counsel:
F. Popeu, for the State
D. Pepson, for the Defendant

SENTENCE

12^th July 2024

1. MIVIRI J: This is the sentence of a Junior Wii of Kimil, Banz, Jiwaka Province who was found guilty after trial to having sexual penetration of 11-year-old Magret Danny.
   
2. He was armed with a bush knife that he used to chase the complainant who was accompanied by other children. Relevantly he was convicted that on the 29^th day of December 2021 around 2.00pm at Kimil in Banz had sexual penetration of Magret Danny who was (11) eleven years old having been born on the 12^th September 2011 at Kimil. He had used the bush knife to chase complainant and the other children accompanying her as they looked for firewood in that plantation. After they successfully escaped, he apprehended the complainant put her to the ground, removed her shorts, and his own, then opened her legs inserted his penis into her vagina and proceeded to have sexual intercourse with her. After he had done, he ran away leaving her in pain and with blood to her vagina.
   
3. He was indicted under section 229A of Criminal Code, Sexual Penetration of a Child which read:-
   

(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, subject to Section 19, to imprisonment for life.

(3) 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, subject to Section 19, to imprisonment for life.

4. He reasoned in his record of interview that it was company policy that persons within the plantation illegally would be charged K200. The complainant did not have that money so submitted to him to do as he pleased hence the offence upon her. It was a very lame excuse and did not assist his mitigation in sentence. He was armed with a bush knife a dangerous weapon that he used to chase her with the other children. It aggravates his offence. And coupled with the medical report exhibit P2 from the Nazarene General Hospital of the 30^th December 2021 confirms that Hymen was ruptured. There was bleeding and scratches, and semen was seen. These were the findings after examination of her vagina. And that is consistent with the admissions of the Accused in his record of interview questions and answers 13, 18, 20 that he did sexually penetrate her. He put his penis into her vagina and did have sexual intercourse with her presumably on agreement that she had no money for the policy of the company to pay K200 upon unlawful entry.
   
5. She was made to relive that offence in court before strangers when she testified in Court. That was obvious from the way she had her head bowed right through out in her entire evidence. It reflected the shame for the offence. And such a private and personal matter exposed by the lust of the prisoner into the open. She was 11 years old; he was 17 years old. The age gape was 6 years. He unceremoniously introduced her to sexual intercourse at such a tender age. It was real that pregnancy may have occurred coupled with sexual transmitted diseases no fault of hers. These facts draw the sentences up: State v Kenny (No 2) [2024] PGNC 201; N10848 (22 May 2024). Age and violence also draw the sentence up Meaoa v The State [1996] PNGLR 280. The reason is simple children are vulnerable members of our society. We must do our duty bestowed by the Legislature to protect our children and our female members of our society, our community, our country, Kalabus v State [1988] PGNC 120; N604 (27 October 1988). Our children cannot defend themselves. It is therefore upon the Court to defend them.
   
6. I remind myself that the maximum sentence will draw the worst offence of sexual penetration of a minor: Golu v The State [1979] PNGLR 653. This is a very serious offence for the reasons I have set out above. No one case is the same each account for the sentence by its own facts and circumstances: Simbe v The State [1994] PNGLR 38. I am mindful that this court has seen this offence prevalent and has addressed a number of occasions to arrive at sentences due by those facts and circumstances. In State v Aru [2016] PGNC 424; N6917 (14 March 2016) she was an immediate relative who was trusted. He was 23 years old she was 9 years old. There is no room to suspend as there is no material to follow as there, Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998).
   
7. I consider that the actions of the prisoner must be punished because he did not plead guilty even though he had a vague explanation that she succumbed to the fact that she had no money to pay the K200 policy of being unlawfully on premises with the commission of the offence. Men must respect all females. Here she was merely looking for firewood with the other children. That is normal and everyday chore that must be done to sustain life in the village communities in many parts of our country. Women and girls who go out in this manner must be protected from men boys like the prisoner. He was armed with a weapon, a bush knife that he used to successful perpetrate the offence. A trial was run he may have been 17 years old, but she a 11-year-old did not deserve the injuries that he inflicted upon her vagina. She was someone else daughter like any other young child must have the protection of the law.
   
8. The Supreme Court confirmed 17 years imprisonment and dismissed the appeal in Sabiu v State [2007] PGSC 24; SC866 (27 June 2007). That was anal intercourse of a six (6) year child by his maternal uncle who took him into the bush and committed the offence upon him because part of the bride price money was not given him. Here the age gape is 6 years. He is a first offender who was 17 years old at the time of the offence, now at sentence 20 years old. No doubt time awaiting has seen the effect on him by his allocutus. “I am sorry to God and to the Court. We are all under the law. I will not do it again. Please have mercy on me.” He will fall in similar vein as State v Mokei (No 2) [2004] PGNC 129; N2635 (26 August 2004) because she is 11 years old here and it is a trial as opposed to a guilty plea. But comparably the facts in State v Trosty [2004] PGNC 103; N2681 (10 September 2004) are mild she was 16 years old; he was 22 years old the act was consensual for several times, hence the 5 years imprisonment imposed.
   
9. I do not consider 5 years as appropriate here. Nor do I consider 19 years because he is a first offender. And he has by his own word pledged to be change. That is a factor that the Court must give some leniency upon in the sentence. The age gap is (6) six years difference, he 17, and She 11. It was not a repeated act, and the weapon was not used over and above necessary. But the fact remains that young children must be protected. Our lives in demand that we look for firewood in the bush. Our life is dependent on our surrounding which is our rivers our mountains our surroundings. We must get out there without fear of persons who threaten our safety. The law must protect us all. And the long arm of the law is sure steady and always gets those who are on the wrong side. In this regard there is nothing apparent or identifiable to warrant the footholds seen in Tardrew, Public Prosecutor v [1986] PNGLR 91for suspension of sentence. There will be no suspension considering.
   
10. A fair and proportionate sentence considering all above is 15 years imprisonment in hard labour. And I so impose that upon the prisoner. From that will be deducted the time that he has spent on remand. He will serve the balance in jail.
    

Orders Accordingly

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant