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State v Ena [2017] PGNC 160; N6826 (21 June 2017)

N6826

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1480 of 2015
CR NO. 1481 of 2015

THE STATE

V
POKINO ENA AND STELLA ENUA ENA

Popondetta: Koeget, AJ
2017: 15^th and 21^st, June

CRIMINAL LAW-Indictable offence – section 349 of the Criminal Code Act – guilty plea – maximum sentence – Exercise of court’s discretionary powers under section 19 of the Criminal Code Act.

Counsel:

L. Toke, for the State
E. Yavisa and C. Namono, for the Accuseds.

21^st June, 2017

1. KOEGET, AJ; INTRODUCTION: The accuseds are charged with Sexual Assault of Daina Ena without her consent. The charge is brought pursuant to section 349 of the Criminal Code Act.

FACTS:

1. The accused Pokino Ena is married to Stella Enua Ena and Daina Ena and at the time of commission of offence, they lived at Vudal University, Popondetta campus at the outskirts of Popondetta town.
   
2. On 22^nd of May 2015, the victim Daina Ena was fast asleep in her room. The accused’s entered the room and removed the clothes off her body. When she woke up, she was surprised that clothes were removed from her body so argued with the accuseds. The accused Pokino Ena told her to shut up and the co-accused Stella Ena pressed her down to the floor and inserted her fingers into the vagina of the victim and fondled with it. She felt pain and discomfort so she reported the incident to the police.
   
3. The State alleged that Daina Ena did not give her consent to the accused Stella Enua Ena to insert her fingers into her vagina and fondle with it and the actions of the accuseds contravene section 349 of the Criminal Code Act.
   

ARRAIGNMENT:

4. The accuseds pleaded guilty to the charge and were convicted accordingly.

ISSUE:

5. The issue is what is the appropriate sentence to impose upon the prisoners.

LAW:

“349. Indecent Assaults on females.

A person who unlawfully assaults a woman or girl is guilty of a misdemeanour.

Penalty: Imprisonment for a term no exceeding two years.”
PERSONAL PARTICULARS:

Pokino Ena

6. The prisoner is age 35 years and married with two wives. The victim Daina Ena is the second wife.
   
7. He is in custody with his first wife. The victim was left in their house located at Vudal University campus at Popondetta when he was taken into custody by the police.
   

AGGRAVATING FACTORS:

8. This was a physical assault on the second wife, particularly the act complained of.
   

MITIGATING FACTORS:

9. He pleaded guilty to the charge and saved Court’s valuable time. The act complained of is an isolated incident within the family circle. He is a first time offender and has been in custody awaiting disposal of this case for 2 years.
   

Stella Enua Ena

PERSONAL PARTICULARS:

10. She is 24 years old and is married to the prisoner Pokino Ena. She has two young children from the marriage and she left them in the village when she was taken into custody for this offence.
    

AGGRAVATING FACTORS:

11. She admits the assault on the victim Daina Ena.
    

MITIGATING FACTORS:

12. She pleaded guilty to the charge and saved valuable time of the Court. There is no permanent physical disabilities suffered by the victim. The offence committed was upon second wife of Pokino Ena.
    
13. Both prisoners have been in custody awaiting disposal of this case for 2 years.
    

SENTENCE:

14. The prisoners have spent the maximum term of imprisonment prescribed by section 349 of the Criminal Code.
    
15. It would be inappropriate to impose further custodial sentences on the prisoners.
    
16. The sentences of the Court is that the prisoners are sentenced to 2 years each in hard labour.
    

ORDERS:

(1) Since both have spent 2 years in custody awaiting disposal of this case, the pre-trial custodial periods are substituted for the sentences pronounced.

(2) The prisoners are discharged from custody forthwith.

_____________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused