N6764

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1097 OF 2015

THE STATE
V
PANUEL ALBERT
Kimbe: Miviri AJ
2017:19th & 23rd May

CRIMINAL LAW - Plea-sexual penetration S229A- victim 14 years 4 months old—offender 20 year old-early admission-PSR MAR S13 & 25 Probation Act- no serious aggravation- non custodial-custodial term.
Cases cited:

Rudy Yekat v. The State (2000) SC665
State v Dominic [2005] N2938
State v Kemai Lumou (2004) N2684
State v Peter Lare (2004) N2557
State v Pu-uh [2005] N2949 
State v Trosty [2004] N2681 
The State v George Taunde (2005) N2807
The State v John Ritsi Kutetoa (2005) N2814

Counsel:
C. Sambua, for the State
D. Kari, for the Defendant

					DECISION ON SENTENCE
23rd March, 2017 
1.	 MIVIRI AJ: On Thursday 2nd April 2015 Panuel Albert alias the accused and the Donalyn Sam the victim were at Mamota section 6 together harvesting peanut at around 1.00 pm. Donalyn went to the river to have her bath. Panuel Albert followed her to the river forced her out of the river and forced her to lay on the bank of the river where he sexually penetrated her by inserting his penis into her vagina and had sexual intercourse with her. The matter was later reported and he was charged. At that time Donalyn Sam was 15 years old a girl under 16 years old.  This was contrary to Section 229A (1) in that the accused had sexual penetration of a girl under 16 years old.

2.	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 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.
	Plea
3.	You pleaded guilty to the charge on arraignment and the file in the case was tendered. I read the file and confirmed your guilty plea to Section 229A (1) of the Criminal Code and convicted you of the charge. And I did so on the basis of the following evidence tendered in the committal file against you.

Evidence

4.	On the 2nd April 2015, Donalyn Sam went to the river with Marylyn Pati after getting their change from the house to wash at the river. Marylyn Pati left Donalyn Sam and went to the house where she told Barbara Sam mother of Donalyn that Panuel Albert had signalled her to leave the river and go, and as She came up from the river she saw Panuel Albert go down to the river where Donalyn Sam was. He held the hands of Donalyn Sam and forced her to the side of the river bank and down onto the sand lifted her skirt up to her chest opened her legs and then inserted his penis into her vagina and had sexual intercourse with her until he ejaculated. After he ran away leaving Donalyn she went looking for Marylyn and her mother came calling for her.  She responded and came out. She went to her mother and told her of what Panuel had done to her. Donalyn Sam’s mother says and has produced the clinic book of the date of birth as 9th September 2000 so working backwards it means that on the 2nd April 2015 she was only 14 years 4 months old. She would have turned 15 years on the 9th September 2015.
5.	After reading the file tendered with the evidence that I have summarized above I am satisfied that the guilty plea was proper and that it is safe and satisfactory in law for me to confirm the provisional plea of guilty to the indictment as you have entered. Accordingly, I confirm your provisional plea and enter a verdict of Guilty to Sexual Penetration under Section 229A (1) of the Criminal Code of sexual penetration of a girl under 16 years old.

Allocutus

6.	“Yes the girl is my friend long time existing relationship. In my family there are two of us. I am first. Our parents are old.

7.	You have justified that the girl is your friend with a long existing relationship. This is an important fact to be considered in the consideration of an appropriate sentence against you. And it must be credible fact that will determine not incredible not worthy of belief or out of the ordinary with sense and logic to be considered as a fact in your favour in sentencing. If the relationship had long existed, why was it that you had sexual intercourse with her on the sand along the side of a river where she had gone to bath?

8.	Your lawyer submitted for a pre -sentence and a means assessment report to be given on the small difference in your ages and of the family views on the matter. I ordered in accordance in view of the age difference and also to seek out the views of both your families to the matter. The matter was adjourned for the reports to 5th May 2017. On Friday 19th May 2017 both your lawyer and the Prosecutor made submission based on the Probation and means assessment report that had been furnished.

9.	What needs to be settled at the outset is that the Probation report is sourced from the Prisoner and not from both the family of the Prisoner or the victim and her family. Page 4 of the report paragraph (b) family concern states, “The writer was unable to contact the offender’s family members to obtain their views. The family of the offender and the victim’s family are living together at mamota, word sent for them but they did not come” What the court seeks here is harmony in the lives of both sides of the dispute so that when the defendant has served time and returned into the community he is not facing a mountain of hate but can fit back into his family where he hails. 

10.	The means assessment report also states the source of the information is the Prisoner again it is self-serving and does not add value to the consideration for an appropriate sentence. “I do not consider a probation order appropriate, nor any order that compensation be paid in this case. Compensation is a matter for the respective families to work out to restore relations. I consider the role of the Court is to send a strong message that it will protect young girls and that offenders cannot buy their way out of proper punishment’ Lay J in State v Pu-uh [2005] PGNC 172; N2949 (24 November 2005) 

11.	So your assertion in the Means Assessment report that you had paid K 2,000 and one live pig as reconciliation is not independently confirmed it is your own assertion and is self-serving without any other evidence supporting this fact. It would weigh more if Donalyn’s father Sam Wos came and confirmed this fact or even your own father Albert Wos. Compensation is normally a family matter here it is even more so because your father Albert Wos is the natural brother of Sam Wos who is Donalyn’s father and therefore it is very important that they have evidence in court confirming this fact that you assert. Both brothers live at Section 6 block 972 and were living together at that time that you committed this offence. Their harmonious relation was pierced by you and shattered when you committed this offence upon Donalyn your sister as she is the daughter of Sam Wos the big brother of Albert Wos your father. You may argue that he is the step father but he is the one who raised you because he married your mother with you pregnant in your mother’s womb. You were born into his care and custody he raised you to be what you are now. You are therefore for intent and purposes son to both Sam and Albert Wos. You committed the offence upon your sister Donalyn. 

12.	Compensation must be evidenced in law you have not discharged that in law and the court will not base its decision on facts that are not established in law. In law you have not established that. In the case of Rudy Yakat (supra), the Court held:

"There is no evidence of the Appellant compensating the victim and or her family in any way for the pain and suffering he brought upon them. He says sorry but what value does a mere utterance of sorry has if it is not accompanied by anything tangible to correct the wrong brought upon the victim and her family and relatives. In our view such utterance are mere utterances, which do not have any real meaning but spoken only in a bid to plead for mercy." Rudy Yekat v. The State (22/11/00) SC665.

Defence Submission

13.	Defence submitted that the offender had pleaded guilty to the offence under section 229A of the Code. He was a 20year old single man educated up to grade 5 at Buvusi Primary school in 2005. And was employed as a labourer with Loose Fruit Company. He admitted the matter when police questioned him and gave a confessional statement of the matter. And in the record of interview he confirmed the confessional statement saying that that was what happened between the two of them. He denied that she was forced and explained that she was his girlfriend and that there were 4 other occasions of sexual intercourse with her with her consent. This he maintained in the court saving time and resources in the matter. He was remorseful. He was 20 years old and she was 15 years old and would have turned 15 years old on 9th September 2000, age gap of 5 years. This was confirmed as clinic book of the victim showed that she was born on 9th September 2000 and so on the date of the offence 2nd April 2015 she was 14 years  4 months old until 9th September 2015 when she would have turned 15 years old. Therefore she was under 16 years old. 

14.	Marylyn Pati was the one who brought the matter to light as she was with Donalyn Sam immediately before she and Prisoner went to a secluded area alongside the river bank and had sexual intercourse. Marylyne went and told Barbara Sam (Donalyn Sam’s mother) who came immediately to the river and started to look for the victim. The victim answered the mothers call and was observed by the mother crying to the mother and reported what was done to her by the Prisoner. Because it was Easter holidays they were not able to report to the police and also to seek medical examination and treatment.

15.	The Prisoner claimed that she was his girlfriend that he had prior acts of sexual intercourse together. If indeed that was the case she would have made attempts to conceal the meeting between the two of them so that both could keep on meeting as they were doing earlier. She was with another girl and would have desisted as it was probable that this other girl would report the matter which is what happened here.

16.	Here also evidence from Donalyn and mother Barbara was that the prisoner was previously married to the elder sister of Donalyn Sam and she left him for another man because he was not treating her right. It did not make sense for her to give in to his advances knowing that he was married to her elder sister and of having witnessed the kind of man he was with her and which made her leave him.  Not only that but the fact that he was the son of Albert Wos her uncle and in-law making the defendant son impossible to just give in to sex as it were.

17.	There was no medical evidence obtained and it could not be ascertained whether she sustained any injuries as a result of the act and whether it could be ascertained medically whether the claim by the defendant that there were prior acts of sexual intercourse were consistent. It was important to establish this fact so as to determine an appropriate sentence. Here the evidence that there were prior acts of sexual intercourse with the victim was of the Prisoner alone and therefore was self-serving. And the extent of any injuries if any could not be established so as to determine an appropriate sentence.

18.	In State v Dominic [2005] PGNC 35; N2938 (25 November 2005), the offender pleaded guilty to a very general outline of facts. So I need to make some more specific findings, for sentencing purposes. Particularly regarding things like consent, force, threats and psychological harm to the child. There was a significant potential, mitigating factor in the depositions and allocutus: that the accused and the complainant were in a boyfriend/girlfriend relationship; and that they had had sex previously; and that the complainant consented. However, when the matter first came before the court, these claims were not supported by the pre-sentence report that was already in file, dated 22 August 2005. So I asked for a supplementary report so that the complainant, now aged 15, could be interviewed. The matter came back to court on 22 November 2005. Both counsel agreed that the offender’s claims were true. However, I am not bound by the concessions that have been made. I have examined the second pre-sentence report and it does not support what both counsel have submitted. It indicates the opposite: there was no such relationship; force was used; the child is psychologically damaged. So I do not accept any of these claims.”

19.	I hold that a similar approach is applicable here. I must make findings of fact whether there was a boy/girlfriend situation here. What are the relations of the parents of the Prisoner and the victim? What is the status of the pre-sentence and means assessment report particularly where it purports to assert that there was K2000 paid and a live pig that was given by the Prisoner to the victim and her parents.

	Circumstances from file

20.	The circumstances that were shown by the evidence tendered in the file were that the Prisoner was a 20 year old man who took advantage of a 14 years 4 month old girl date of birth being 9th September 2000 who was washing in the river. It is clear that you were intent on satisfying your lust and took advantage by threatening her companion and friend Marylyn Pati to leave her alone so that you could perpetrate your evil intent upon her. The statement of this witness to Barbara the mother of the victim is clear in this regard, “Donalyn and I were having our bath, when Panuel came and were spying on us. I saw him and he made signs to me not to say anything and that I must leave the river and go. I was scared and did not inform Donalyn and I left the river and went up and I saw Panuel going down the river where Donalyn was having her bath. I escaped and ran away to the house and inform Donalyn’s mother that Panuel chased me at the river and he went down to the river where Donalyn was washing.” 

21.	And that is what you did then you carried out your intents upon her. How is it that if she was your girlfriend you had sex with her on the river bank exposed to all others who may have been there. Only humans have regard for decency especially in cases of sexual nature, your action are inconsistent with the claim that she is your girlfriend. Sitting as a tribunal of fact I cannot ignore these facts and proceed to sentence you disregarding these facts, as these are very clear facts that must be considered in the total sentence that is spelt out at the end. Sexual penetration is the charge here and therefore it is important to consider whether or not there was prior acts of sexual intercourse between the defendant and the victim.

22.	I find as a fact that you took advantage of Donalyn Sam. That you begin to put your intentions by getting Marylyn Patio out of the scene so that Donalyn Sam was alone for you to commit the crime. I cannot agree with you that Donalyn Sam is your girlfriend. I find that she is not your girlfriend as to be so you would treasure that relationship you would not destroy it by exposure to members of the family who might disagree with your relationship. You would keep the relationship discrete.

23.	Barbara Sam mother of Donalyn Sam says, “You are the step son of my husband Samuel’s elder brother and we all reside in the block. Panuel has forced and married my first born daughter and their marriage only lasted for months after Panuel’s attitude was not good so she left and married another man.” In your record of interview at Question and answer 19 you confirm this fact but say she left because of the parents continued verbal harassment and not you. She further says she followed the track down to the river and met you along the track. You were shocked when you saw her you kept on running, and when she asked where you the only one who held up my daughter at the river? You only laughed and ran away. You could not be found thereafter either by Sam Wos who is your step uncle because he is the brother of your step father.

24.	Your father one Albert Wos 48 years old subsistence farmer from Mamota Section 6 Portion 972 provided a statement to police in this matter and his statement is relevant and admitted as part of the witnesses in the matter. He states, “I do recall back on the 2nd April 2015 at about 6.00am I went to work in Moroa Plantation. I finished work at about 3pm and came home at about 4pm. I stayed for a while and news of my son Panuel Dennis who had raped my brother, Sam Wos daughter. I heard that and was upset. I told Sam Wos to go and report the matter to Police because I don’t know the where abouts of the son. Panuel Dennis is not my birth son. I am only his step father. His mother was already pregnant with him when I took her and married her. His mother was already with me so I looked after him since he was a baby. Now he committed rape so I felt ashamed because he would call Sam’s daughter as his sister but now he turn around and raped Donalyn and I am not happy. I am just step father and I am not happy about this incident because he had spoilt the relationship between my family and my big brother Sam WOS. I want him to go before the court and let the court take its course and have good thoughts later on,”

25.	Sam Wos 54 years old subsistence farmer of Mamota Section 6 Portion 972 has given a statement dated the 15th April 2015 where he states, “I am the father of Donalyn Sam who is my third born daughter and we all reside in Mamota section 6 Block number 972. I do recall back on Thursday April 2015, I left home about 7am and went to Mamota Community for OPRA to run a field day Workshop. I went to attend that workshop and was with OPRA officers and other settlers. We finished at about 4pm I went home. When I arrived home my wife Barbara told me that Panuel had raped Donalyn in the river. I heard that and was very furious and went out looking for Panuel to assault him but he was not around, I went out looking for him and was not successful and came back home. On Friday the 3rd April 2015 it was Easter Holiday so I decided not to take Donalyn to the Clinic or Police because it was holiday. On Tuesday we went to Kapiura and reported what Panuel had done to Donalyn. What he has done is not good because we all reside in the same block. His is my brother’s step (foster son) and Donalyn is like her cousin sister. I felt very bad for what Panuel had done and I want the court to penalize him”

26.	How can it be believed that you were befriending and having sexual intercourse all along with your cousin sister here? Sam Wos is the brother of Albert Wos both live together at section 6 Block 972 Mamota. You are the son of the latter. Donalyn is the daughter of the former. It is clear you are cousins, so you cannot have sexual relations with Donalyn as that is analogous to incest. The definition of "relationship of trust, authority and dependency" is defined in s.6 (1) and (2) (a) to (h) in the following words:

(1)	“when the term relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2)	“ relationship of trust, authority or dependency" includes, but is not limited to, circumstances where - 

(a)	the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or
(b)	the accused has care or custody of the complainant; or
(c)	the accused is the complainant’s grandparent, aunt, uncle, sibling (including step-sibling) or first cousin; or
(d)	the accused is a school teacher and the complainant is his pupil; or
(e)	the accused is a religious instructor to the complainant; or 
(f)	the accused is a counsellor or youth worker acting in his professional capacity; or
(g)	the accused is a health care professional and the complainant is his patient; or
(h)	 the accused is a police or prison officer and the complainant is in his care or control."

27.	The section does not close the door to the definition it makes but leaves open so that relationship such as is the present is within the ambit of the section. Adoptive parent is clearly covered by the section above which leads to you as an adoptive son therefore you have breached serious trust and dependency here.

28.	In the State v Peter Lare (2004) N2557 (as per Kandakasi J in Goroka ), the Offender aged 40 was charged with one count of sexual penetration of the complainant, a girl, aged 12. The offender was the girl’s adopted father. There was no consent and no aggravated physical violence, but offender passed sexually transmitted disease to the complainant. The pattern of persistent abuse over a period of 2 years with serious betrayal of trust. But the offender cooperated with police and pleaded guilty and expressed remorse though there was no compensation attempted. He was a first offender, the offender labelled a sexual predator and the court sentenced him to 20 years IHL.

29.	If this is the case of an adopted father where does that leave you as an adopted son of the younger brother of the father of the victim? You have breached trust and dependency even though the State has not specifically charged this in the indictment as aggravating the offence. But for the purposes of sentence it is an aggravating factor against you that the court is empowered to take into account in passing sentence upon you, and I do so here in considering and passing sentence upon you.

30.	In State v Trosty [2004] PGNC 103; N2681 (10 September 2004), the girl was 15 years old; he was 22 years old at the time of the passing of the sentence. He had repeated sexual intercourse with her over a period of time. It was felt that this was not a case that warranted the maximum sentence. The age gap was 6 years between the both of them. It appeared they had a girl/boyfriend relationship and intercourse was consensual. He pleaded guilty to the indictment that was laid against him. Five (5) year IHL was imposed on the prisoner.

31.	This is a six year gap with repeated acts of sexual intercourse. Yours is a one act of sexual penetration but contention on your part that you are both girl and boy friend. There is a five and half year gap between the two of you. She was 14 years 4 months old and you were 20 years old then on the 2nd April 2015 on the date of the offence. You are also related here and that will make a difference in the sentence.

32.	In The State v Kemai Lumou (2004) N2684, (per Kandakasi J, in Lorengau),  the offender was aged 22 years old and charged with one count of sexual penetration of the complainant, a girl, aged 14 years old. The offender was the girl’s uncle and there was no consent and there was aggravated physical violence in that a bush knife was used to threaten the complainant and sexual penetration was forceful. There was no evidence of physical injuries or infection of complainant with sexually transmitted disease. It was an isolated incident but was of a serious betrayal of trust and the offence was committed against a small pupil on her way to school. The offender did not cooperate with police:  and tried to cover up his actions by claiming that complainant was his girlfriend, aged 17 and sex was consensual. He pleaded not guilty and the complainant was forced to relive crime and there was no evidence of offender saying sorry to complainant and her relatives and no compensation attempted, but the offender was a first offender. The court imposed a sentence of seventeen years IHL.

33.	You are just two years younger than the prisoner here but the victim is about the same age as Donalyn Sam here of 14 years old. One act of sexual penetration by an uncle, for you here you are the adopted brother as your father Albert Wos is the younger brother of Sam Wos the father of Donalyn Sam.  You were in the pregnancy that Albert Wos married your mother with and when you were born he raised you as his son. You are for intent and purpose his son and therefore would be likened to a first cousin of the victim Donalyn Sam because of that fact it is therefore a serious breach of trust though not specifically pleaded in the indictment, it is relevant in considering an appropriate sentence for you.

34.	In the State v George Taunde (2005) N2807 (per Cannings J, in Buka), the offender was aged 33 at time of offence and was charged with one count of sexual penetration of the complainant, a girl, aged 13. There was relationship of uncle/niece and there was lack of consent but there were no weapons used or aggravated physical violence. The offender cooperated with police and pleaded guilty and expressed remorse. No compensation was attempted and he was a first offender. The court imposed the term of 10 years IHL.

35.	The age gap may not necessarily be the same here but the relationship aspect is material here and applicable because of the relationship that you are in here, which I have set out in paragraph 35 of this judgement you may be likened to first cousins and even as adoptive son it is still very serious for the purposes of sentencing.

36.	In the State v John Ritsi Kutetoa (2005) N2814 (per Cannings J, in Buka), the offender was aged 39 years old at time of offence charged with one count of sexual penetration. The complainant was a small girl, aged 10 years old. The relationship was of stepfather/stepdaughter and there was lack of consent but no weapons were used or aggravated physical violence. The child suffered physical injury and there was grievous violation of existing relationship of trust. The offender cooperated with police and pleaded guilty and expressed remorse but there was no compensation attempted and he was a first offender. The court imposed the term of 17 years IHL.

37.	If you were to be considered with this case the aspect of the relationship is still a very aggravating feature of this case. The breach of trust and dependency is a very serious aspect in the consideration of an appropriate sentence. And where there are serious injuries as a result and the victim is a child of tender age the penalty is even higher as is the case here.  And this is evident in all the cases that are set out above that where the age gap is large and extensive, the sentence is accordingly and where the relationship is close dependency and trust will be reflected in the sentences passed. This is quite evident here and there ought to be and must be very good reasons to deviate and depart from that range or tariff and exercise of sentencing discretion.

38.	The general fundamental basis is that girls must be protected especially young girls in their tender years or teens as they are vulnerable to be exploited sexually for the gratification of men and boys who by nature are stronger and can impose their will to the detriment of the girls. Particularly when there is disease emanating or sexually transmitted disease, HIV Aids, and pregnancy. Here also the stigma of becoming a mother at a very young age is not remote. 
Case here
39.	Is there here room for departure from that range and tariff? Is your case different and distinct in the common denominator of age difference? Relationship of dependency and the protection aspect though for yours is not specifically pleaded, but is a relevant and fundamental consideration in the sentence proportioned.

42	I am firm that the sentencing discretion is not fettered:  SCRA 29 of 2007 Thress Kumbamong v The State (2008) SC 1017 answers this question very well stating that:
 “the sentencing discretion is never fettered or dictated in a certain direction or position 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”.

43	Your case is as follows;  you are 20 year old man on the 2nd April 2015 she was only 14 years 4 months old,  she would have turned 15 years on the 9th September 2015. She was your adoptive sister as you were the adopted son of Albert Wos the younger brother of the victim’s father Sam Wos. In Papua New Guinea terms you were a first cousin to each other. You may have been in the womb of your mother pregnant not born when Albert Wos married your mother. But for all intent and purposes he raised you as his son. Therefore you were first cousins having been raised as such as  it was a clear breach of trust and relationship upon you to have sexual intercourse with her as you did. You took her out of the river to a secluded area along the river bank moved her skirt up to her chest spread her legs inserted your penis into her vagina and had sexual intercourse with her. You contend that you were friends prior to the date in question. If that was so it was clearly a breach of the trust and relationship between your families and upon you. You abused and breached that trust being the older of the two of you. Even then you had a prior relation with the elder sister of the victim which relationship did not last. Whether or not it was your fault of her is not relevant. The fact of the matter is that you had experience you knew what was right from wrong. You ought to have exercised restraint and good will but no you were intent on yourself and exerted as alleged. What you have done has brought shame and ill will in the family. This could be the reason why there is no response from either your father Albert Wos and also you’re Uncle Sam Wos on the matter. In fact what your father says is to leave the matter to the court for the court to deal with considering all the above. 

44.	Even if there was consent it is immaterial as that is not the prime that section 229A seeks to administer and cover. Young girls must be protected from themselves and from those who prey on their innocence to exploit for self-gratification.  It is serious in that the presentence report is one sided not corroborated by the family of the victim or let alone the victim to confirm or deny if indeed compensation was paid. The court will not accord justice by law if facts that it seeks to rely on are not properly established to be basis for orders to follow through. What should have happened here was for the Probation officer to seek out the family of the victim and to get them interviewed. A report compiled here for the benefit of the court to assess sentence with that fact. Here that is not established and therefore will not be considered in the sentence that is passed now upon the defendant. 

45.	When the family unit in society is secure, safe and peaceful there is prosperity in that society, community Province and ultimately the State. Disharmony dispute sour relationship may lead to anger disorder unlawfulness. The family bound together and working on the common oil Palm Block will lead to their well- being and prosperity which in turn will be reflected in that community, district, Province, and the Country. It is not just a simple matter of sexual penetration by you and those who are inclined to this behaviour. It is far greater than your lust and those who are inclined. The court must do justice here and pass sentence reflective of this core basic values of human kind. The family unit must always be protected from abuse and immorality and criminality.

46.	Your guilty plea does not discount very well given the aggravating matters that I have pointed out above. They far outweigh your guilty plea. This is again your second attack on the family given that you did the same to the other daughter. You admit this in your record of interview. I will not ignore as it is one matter reflective of your attitude and behaviour. You do not respect family values as basic to society, community, Province and the nation. Your sentence will be a deterrent one to you and all others with similar inclinations. It is not a simple case of sexual penetration as has been agreed to by counsel but an aggravated case of its kind depicted out by the court in the relationship here and your meditated pre planned actions in the offence. You say you had a relationship with her, “Yes the girl is my friend long time existing relationship. In my family there are two of us. I am first. Our parents are old, which is indicative of your evil aspiration not to respect family ties and values. You have seriously abused that and for that you will be sentenced as follows:

(1)	You are sentenced to 10 years IHL.  

(2)	8 years IHL in jail 

(3)	You shall enter into the 2years probation order upon release on the following conditions: 

(4)	2 years IHL suspended on Probation on the usual terms and condition and in addition, the following shall apply:

(a)	You shall within 48 hours report to the Probation Officer;
(b)	You shall perform 4 hours of community work at a worksite to be approved by the Probation Office;

(c)	You shall keep the peace and be of good behaviour at times; 

(d)	You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation; 

(e)	You shall attend church every weekend for service and worship whilst on probation;  

(f)	Within 2 weeks of your release on Probation you shall join your local church youth group and participate in all its activities during your probation period; 

(g)	You shall undergo counselling from your local pastor for a number of times as may be determined by the counsellor; 

(h)	Within 3 months  upon release you are to reconcile and compensate Sam Wos, Albert Wos, & Donalyn Sam as follows:

(i)	Cash payment of K1,000
(ii)	One mature or adult pig valued at K1, 000
(iii)	Garden food to the value of K400

(j)	The reconciliation and compensation payment are to be attended and witnessed by the Probation Officer, Station Commander of Kapiura Rural Police Station, the Arresting Officer, Chairman of Mamota Village Court and Village Court Officials, Mamota community and church elders; 

(k)	The occasion for the reconciliation and compensation payment is to be recorded and a report filed at the National Court Registry by the Probation Officer; 

(l)	The Probation Officer shall file a report on the responses and progress of the probationer every six months with the first report due on 25th  November 2025 and at any other time or interval as the National Court may order upon application; 

(m)	In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence. 

(n)	These orders shall be listed for mention on the call-over in 1st Monday May, 2027. 

Orders Accordingly.

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