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State v Laio [2016] PGNC 365; N6490 (27 September 2016)

N6490

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1377 of 2016

THE STATE

V

HAKI LAIO

Kerema: Koeget, AJ
2016 : 19^th, 26^th & 27^th September

CRIMINAL LAW- Indictable offence – section 229A of the Criminal Code Act – Definition of Sexual Penetration in Section 229A of Criminal Code Act – Maximum Sentence – conviction on plea – no weapon used and no permanent physical injury suffered by victim.

Facts

On 8^th March 2016 in the afternoon, the victim Linda Hapu Epi, then 15 years of age left her parents in Lapari village and went to the garden to plant banana saplings. The prisoner Haki Laio, a third cousin of the victim approached her in the garden and both went into the bush. The prisoner’s grandfather and the victim’s grandfather are biological brothers.

The prisoner took the victim into the bush and both had sex. Both then went further into the bush and had sex the second time. Then the prisoner escorted the victim to the village after the second sexual intercourse and by then it was already night.

When the victim returned home, she told her parent of what the prisoner did to her in the bush in the afternoon. The matter was reported to the police and the prisoner was arrested and charged with one count of Sexual Penetration of a girl under the age of 16 yrs.

Held

(1) The penalty for such offence under section 229A (1) of the Criminal Code Act (as amended) is imprisonment for a term not exceeding 25 years.
(2) The prisoner and the victim are cousins and are willing parties to the act of sexual intercourses on 8^th of March, 2016.

(3) The imposition of maximum sentence is inappropriate in the circumstances of this case.

(4) The balance of the sentence is wholly suspended on conditions that the prisoner enters into recognisance and promise to be on Good Behaviour Bond for period of 4 years 6 months.

Case Cited

The State –v- Eddie Trosty (2004) N2681
The State –v- Kemai Lomou (2004) N2684
The State –v- Penias Mokei (No.2) (2004) N2635
The State –v- Peter Lare (2004) N2557
The State –v- Soti Abusa [1988-89] PNGLR 170

Counsel:

D. Mark, for the State
B. Popeu, for the Accused

27^th September, 2016

1. KOEGET AJ: The accused pleaded guilty to one count of Sexual Penetration of a girl under the age of 16 years. The charge is brought pursuant to section 299A of the Criminal Code Act as amended.

ARRAIGNMENT

2. “I plead guilty to the charge”.

ISSUE

3. The issue for determination by court in the case is what is the appropriate sentence to impose upon the prisoner.

EVIDENCE

4. State tendered committal depositions consisting of:

- statement of facts
- clinical book cover belonging to the victim
- medical report
- victim’s statement

VERDICT

5. The prisoner is found guilty as charged and is convicted of the offence of Sexual Penetration of a girl under the age of 16 years.

LAW

6. Section 229A Sexual Penetration of a Child

“ (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 subsections (2) and (3), imprisonment for term not exceeding 25 years”.

ALLOCATUS

7. The prisoner stated:

“I will pay compensation and say sorry to her. I will cook food and shake hand with her as we are related. I will pay her compensation – my father is holding on to the money”.

PERSONAL PARTICULARS

8. The prisoner does not know his age but it is estimated that he is in mid twenties and is a bachelor. He has very limited formal education having completed Grade 3 at Opao Primary School in Ihu, West Kerema in the Gulf Province.

MITIGATING FACTORS

9. The prisoner was employed as a part-time carpenter by RH in Port Moresby and was earning K500 per fortnight and was on holiday when he committed the offence.

- he has no prior convictions and he is a first time offender.

- his parents are alive and are subsistence gardeners in Lapari village and both are estimated to be in their late 50’s.

- he has four brothers and three sisters and he is the last born in the family.

- the prisoner pleaded guilty to the charge and save valuable time of the court, when court has only 2 weeks in this circuit to depose of cases in Kerema in the September 2016 sittings of court.

- he cooperated well with the police and the victim suffered no permanent physical injury.
- the prisoner is willing to pay compensation to the victim if ordered by Court.
- there was no weapon used in the commission of the offence.
- the prisoner and victim are willing parties in the commission of the offence.

AGGRAVATING FACTORS

10. The prisoner committed the offence on his cousin sister as their grandfathers are biological brothers.

SENTENCE

11. This is not the worst type of sexual penetration cases so imposition of maximum sentence is inappropriate in the circumstances of the case.

Comparison in sentence

12. In Daru, in May 2016, in the case of The State –v- Jack Kiake (unreported decision of Koeget AJ), the offender pleaded guilty to unlawful sexual penetration of his adopted daughter. The offender was primary school teacher aged 38 years. The victim was in grade 6 at Monfort Catholic Mission school. In that case, the offender abused the position of trust and dependency placed upon him as the father of the victim. So a sentence of 10 years in hard labour was imposed.

13. In this case, the prisoner did not abuse trust and dependency because such situations do not exist. So the sentence in this case ought to be lower than that imposed on the prisoner in the case of The State –v- Jack Kiake.

14. In the exercise of court’s sentencing discretionary powers under section 19 of the Criminal Code Act the prisoner is sentenced to be imprisoned for 5 years in hard labour. The pre-trial custodial period of 6 months is deducted. The balance of 4 years and 6 months is wholly suspended on conditions that the prisoner enters into recognisance and that he promise to keep peace and be on Good Behaviour Bond for 4 years and 6 months.

ORDERS:

(1) The prisoner is to pay to the victim as compensation under section 2 of Criminal Law (Compensation) Act 1991 in the sum of K1, 000.00 cash and one pig by end of December 2016. The compensation payment to the victim is to be witnessed by the Probation officer for the Gulf Province and the police arresting officer stationed at Kerema police station.

(2) Should the prisoner breach any of the conditions imposed, he shall be brought back to court to be dealt with for the suspended portion of the sentence.

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence