Unreported National Court Decisions
N841
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
C.R. 463 OF 1989
THE STATE
V
THOMAS DIKA GUTA
Lae
Doherty AJ
27 March 1990
CRIMINAL LAW - s 215(1) Criminal Code - attempted - unlawful carnal knowledge of a girl under 10 - whether defendant fit to plead - to be raised by Defence - worst case - facts to be considered.
Sentence:
7 and half years.
The defendant was charged with attempted unlawful carnal knowledge of a three year old girl who was badly injured and who he kept all night and abandoned in an exposed place. Defendant’s fitness to plea considered.
Held:
(1)      Fitness to plea must be raised by Defence and since they did not raise it, defendant is presumed sane.
(2)      Worst case situation and aggravating factors.
Cases Cited:
John Elipas Kalabus v State [1987] Unreported Judgement SC. 355.
State v Thomas Pipon Unreported Judgement N 737.
Secretary for Law v Kwauga [1974] PNGLR 135.
Counsel:
Mr Poiya, for State
Mr Senge, for the accused
DOHERTY AJ:  The defendant was indicted on one count that he on the 3rd of February 1989 at Lae attempted to have unlawful carnal knowledge of a girl under the age of ten years. The indictment was laid under s 215(1) in the Criminal Code, which provides as follows:
“A person who attempts to have unlawful carnal knowledge of a girl under the age of 10 years is guilty of a crime.”
Why the defendant was charged with the attempt is not clear as the medical evidence indicates to me that he achieved that act.
Prior to the indictment being presented Mr Senge, Counsel for the defendant, had applied for an order for medical examination of the defendant to determine his fitness to plea. I readily acceded to this application as I had noted during call-over the defendant’s tendency to sit on the dock and smile vaguely in a manner unlike other persons appearing in the court. A very thorough medical examination was carried out on the defendant: This showed, inter alia,
Neuropsychiatric Examination: He looked withdrawn and disinterested with occasional eye contact. He had to be plodded (Sic) to answer questions which takes two to five minutes for replies. (Sic) Sometimes he does not answer questions at all. Answers to questions were appropriate. His speech showed mild explosive character. He was orientated to time, place and person. He appears to have adequate memory recall, but poor general knowledge.
Judgement - difficult to assess as patient was not answering.
Insight - he has a fair idea about why he is being interviewed.
Hallucinations - nil auditory/visual.
S 27 of the Criminal code provides that a person is presumed of sound mind and to have been of sound mind at any time that comes in question. The presumption of sanity is a rebuttal one and the onus is on the defence to show the defendant is not criminally responsible if he is of such a state of mental infirmity that s 28 of the Criminal Code Act should apply to him.
Both Counsels considered that the report showed the defendant was fit to plea and defence did not pursue any application concerning the defendants fitness to plea. Accordingly I made a ruling pursuant to s 569(2) of the Criminal Code and arraigned the defendant stating the facts as given to me by the Counsel for the prosecution.
On arraignment the defendant pleaded guilty, no application was made by the Defence Counsel and I read the depositions. On reading the depositions I found that an earlier medical examination was carried out on the defendant which also found that he was fit to plea.
The victim was three years of age or less. She had been watching T.V. at a neighbour’s house on 2nd February 1989. At 2 pm her father returned from work, (he lived and worked in the same premises) and could not find her. A search of neighbourhood ensued; it was reported to the Police. The search resumed next day and at about midday the following day the father was contacted about a girl who had been found and who was then in the hospital. He went and identified the child as his daughter.
The child had been sexually assaulted. The injuries she received were horrendous. The medical report shows:
“Examination under anaesthesia revealed torn perinum. The tear was raggered (Sic) and 10 centimetres deep. The tissues separating the vagina from the anus were torn and this created one bleeding orifice (hole) measuring 10 centimetres deep”. There was other bruising.
The victim had been found in the early morning of 3rd February 1989 when some young boys went to check hooks they had left for crocodiles at a swamp near Lae. They heard “crying out sounding like that of a woman being raped” (Sic). They saw a man come out of the bush where the crying was coming from, his legs covered in mud. He did not reply to their greeting. They were scared to investigate being “only small boys” (as one witness said) so went to the compound to get help with other adults. They found the small girl lying down, bleeding from the vagina and crying at the edge of the swamp. The child was taken to hospital and the boys persued the man they saw. They found him at Papuan Compound decided to “go closer to see clearly if it’s the right person” did so, identified him and reported to the Police. He was apprehended, apparently, immediately.
No other description of the man leaving the swamp is given and this is of concern as during the record of interview the defendant gave several equivocal replies and appeared to raise an alibi. One question however leaves no doubt.
Q.       From information I received that you yourself, take the small girl to the swamp and you had sex with her. What are you going to say about that?
A.       Yes.
I raised this concern with Counsel but Defence Counsel indicated the plea accorded with instructions and I found the defendant guilty. On allocutus he merely stated his lawyer would speak and in mitigation Mr Senge stated that the defendant had at the time of the offence an overpowering sexual urge he was a first offender and other matters. Mr Senge, very properly, referred the court to the Supreme Court decision of John Elipas Kalabus v State. Counsel for the prosecution asked for the maximum penalty saying this is the worst possible case of attempted unlawful carnal knowledge, the injuries received by the child were traumatic and her age extremely young.
I have also had its benefit of reading the State v Thomas Pipon unreported judgment N 737 in which Brunton, A J (as he then was) comprehensively reviews customary attitudes to this offence and the judicial trend in sentencing in other jurisdictions. The State v Pipon deals with an offence under s 213(1) Criminal Code, which carries a maximum penalty of life imprisonment. The offence with which this defendant is charged carries a maximum of 14 years imprisonment and in comparing this case and that of Kalabus v State that difference in range must be borne in mind. In Pipon the child was very young (eighteen months) but did not suffer the injury this victim did.
In the Secretary for Law v Kwauga [1974] PNGLR 135 the Supreme Court, increased a sentence imposed in an offender convicted of unlawful carnal knowledge where the 9 year old victim suffered laceration and it “was a bad case”.
In considering the case before me I find that this is a bad case, the worst possible case of attempted unlawful carnal knowledge, the child’s perinum was torn from the vagina to the anus, the tear was 10 centimetres deep. The child was 3 years of age - these can be no suggestion here of the precocious young girl luring the older man - the “Lolita” type of fiction. As well as the injuries and extreme youth of the victim, I also consider the following to be aggravating factors:-
1.       The child was taken out of the control and care of her parents. I do not know how she was taken whether by force or some enticement but parents should feel their child is safe with neighbours watching television - it is an innocent and common pastime and should not be considered fraught with dangers.
2.       The defendant detained, in effect abducted, the child for a period of some 17 hours throughout the night (I also follow John Aubuku v State unreported S C341 in reference to abduction).
3.       The defendant abandoned the child in a seriously injured condition in a deserted swamp where she could have been exposed to further dangers. She had no means of returning home.
4.       The pain inflicted on the child.
In assessing sentence, I bear in mind that crimes involving young girls is on the increase (see State v Pipon supra) and a deterrent sentence is called for (2) the “bad case” aspect and (3) the defendant’s lack of prior convictions his comparative youth 23 years and his plea of guilty.
The courts have a duty to protect the young to quote Brunton J:
“Protection of the young and deterring others from molesting them in this way should be paramount”.
I also consider the directives given by the Supreme Court in sentencing in a “worst case” situation.
“I should state before I proceed further that the fact that a case falls into the worst type category does not mean that the maximum sentence automatically applies.”
I consider that the plea of guilty does warrant some reduction in the case before me as it avoids the family being subjected to a trial (albeit I would not have allowed a public one). The defendant has shown no remorse or contrition, he merely says he had an over powering sexual urge, statement that only aggravates the situation.
Having taken these factors into account I sentence the defendant to 7 years 6 months in hard labour. I deduct the period he spent in remand.
Lawyer for State: Public Prosecutor
Lawyer for Defendant: Public Solicitor