National Court of Papua New Guinea

7. &##160;;The pris prisoner aner also asked to be given a chance to complete his studies. He said because he was arrested for this offence, that he could not complete his studies. I find that to be an excuse. In any event, there is nothing stopping the prisoner from completing his studies whilst in prison. That can be done and is an arrangement the CS can organize with the relevant college or university and which they have done with other prisoners.

8. &#he victim has to come to e to court to give evidence, to relieve the events that nearly shattered her innocence as a child. She ubjeco intcrossination where she was told that she had imagined all that hadt had occu occurred rred or thor that she was mistaken. But she maintained her story throughout and never budged.

9. &##160; The vict victim did oot ccttract any sexually transmitted diseases nor did she suffer any injuries. But clearly psychologically, she will be affected by this trauma for a long. Addally,relatiolationship between the victim’s moth mother aner and her other family members is now very strained. In fact I have heard that the victim and her mother were told to leave the family hamlet or block to reside somewhere else.

Discussion on evidence

10. Why shohed tctiviand er moer mother be made to suffer for the prisoner’s actions. It is unfortunate that their family members have branded them as scapegoats and severed ties with them. All be theye theh. The actioactions ofns of the the family members is testimony to what is occurring in this country where a lot of female victims and their mothers are too frightened to speak out for fear of being ostracized by their families. This phenomenon is widespread from the richest to the poorest families, the educated to the non-educated and the youngest to the oldest.

11. ;&#16this case, ase, the ofhe offence committed by the prisoner carries a prison term not exceeding 12 years because the victim nder ge of 12 when the offence was committed upon her. There was also an existing rela relationstionship of trust between the victim and the prisoner.

12. I have been referred to The State v Linus Miria CR 1623 of 2005 dated 16/02/06 and The State v Brady Meki CR 1478 of 2006 dated15/11/06. In Linus Miria (supra), tcusedded g to the same same offe offence. nce. He placed his private part on the victim’s outer genitalia then ejaculated on her. It was later discovered that the victim contracted gonorrheae and syphilis from the victim’s actions upon her. He was sentenced to 11 years and 1 year was suspended. In Brady Meki (supra), the accused inserted his finger into the victim’s vagina. She suffered bruises as a result. He was charged with the same offence to which he pleaded guilty. He was sentenced to 3 years.

13. ;&#16this case, ase, the cohe court had to run a trial. Although the victim did not suffer any physical injuries, she will be psychologically scarred for sometime. Furthermore, the circumstances of this case, more specifically the injuries suffered by the victim’s are not as serious as those sustained by victims in Brady Meki (supra) and Linus Miria (supra). This case was also run as a trial compared to other cases.

14. &#he stubm sted tted for a or a sentence of 11 years and Defence Counsel asked for a sentence of 2 to 3 years but to be suspended low tmily concile by paying compensation and for the prisoner to complete his jous journalirnalism stsm studies.

15. ҈Fy, in cain cases ofes of this nature, it is the victim who should be compensated, not to reconcile families but to regain tctim&;s trust and to appease her and her family, more specifically her, for the wrong rong done done to her. The accused’s family should be doing their utmost to keep the two families together, not wait for a court order. But that is not the case here, as I have illustrated. The accused’s family have not done that. Although there was a payment of some K300.00, the victim’s mother had to pick that up from the accused’s brother’s employer. They did not pay her of their own free will.

16. &#16ondly theonrisoner canr can complete his studies whilst incarcerated. That can be done administratively.

17. &#16lso nhte thit this is t is the prisoner’s first offence. He is now aged 27. His lawyer has asked for a pre sentence report. If this were a guilty plea, I may have considered that. But it was not. The prisoner must serve time because a suspended sentence does not match the offence committed. As Kandakasi J said in Brady Meki (supra);

"...Parliament considered then (2003) and even now, that sexual exploitation and abuse of young children as very serious offences. The reason for this is because this category of our population is very vulnerable and defenceless... Therefore we need to protect our young children against offenders like you is far more urgent and important...

Past sentences have failed to fulfil that desire to protect our children, evidence (sic) by the prevalence of the offence. Accordingly, Parliament increased the penalty from 5 years to 12 years for the offence of sexual touching of a girl under the age of 12 years ..."

18. ;No d there was was a reas reason behind the increase of penalty from 5 to 12 years. On a matter run as a trial, a suspended sentence is not appropriate.

19. Comparing Brady Meki (supra), Linus Miria (supra) and all aggravating and mitigating factors, a custodial sentence is appropriate. In this case, risonll beenced years in hard labour. Bail mail moniesonies of K of K250.0250.00 will be refunded to whoever paid bail, upon production of a receipt. An arrangement will be entered into between the CS and the prisoner for him to complete his studies this year or for the next two years.

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Public Prosecutor : Lawyer for the State
Public Solicitor: Lawyer for the Prisoner