N8604

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1295 OF 2017

THE STATE

-V-

LARSEN NIAGAU

Waigani:  Koeget, J
2020: 21st, 22nd, 30th September

CRIMINAL LAW-  Indictable offences – section 229B (1), (4) of the Criminal Code Act chapter 262 (as amended) – section 229A (1), (2) of the Code (as amended) – alternative count – section 229C (1), (2) (as amended) – Examination as to competency - need for count to be satisfied that child understands liability to punishment if evidence is false – understanding that wrong to tell lies on oaths – Oaths, Affirmations and Statutory Declaration Act, section 6.

EVIDENCE - Swearing an Oath – competency – child of tender age – examination as to competency – Need for court to be satisfied that child understands liability to punishment if evidence is false - Oaths, Affirmations and Statutory Declarations Act, section 6.

EVIDENCE - Identification relevant considerations when determining credibility – Pre-existing knowledge of accused – No identification parade.

CRIMINAL CODE ACT – Sexual Offences – Abolition of warning against dangers on convicting on the basis of uncorroborated testimony of the victim.

FACT

On the night of 7th April 2017 at about 7:00 o’clock at North Waigani in the National Capital District, the accused Larsen Niagau enticed the victim, a minor by showing her the K2-00 note.  When the victim reached out to get the K2-00 note, he held her left hand and pulled her to him.  The accused, used the other hand to close the victim’s mouth.

The accused proceeded to pull his trousers zipper down and pulled penis out of his trousers and rubbed it on the victim’s vagina.  He then opened the victim’s mouth and inserted his penis when the brothers Newman Gabriel and Henry saw him and asked what he was doing with the victim.  The accused did not reply so Henry assaulted him.  In the alternative, the State charged the accused with “Indecent Acts Directed at a child”.

Cases Cited:

The State v Patson Timothy (CR 592 (2020)
The State v Silo Wana (2016) N6426
The State v Mailai (2011) N4649

Counsel:

A. Kaipu, for the State
A. Popeu, for the Accused

30th September, 2020

1.      KOEGET J: INTRODUCTION: The accused is charged with one count of Sexual Touching of a minor pursuant to section 229B (1), (4) of the Criminal Code Act (as amended).

2.     He is also charged with Sexual Penetration of a minor pursuant to section 299A (1), (2) of the Criminal Code Act (as amended).  

3.     In the alternative to the second count, he is charged with Indecent Acts Directed at a child pursuant to section 229C (1), (2) of the Criminal Code Act (as amended).

EVIDENCE

Evidence for the State

4.     The State tendered the following documents with consent:-

-	Record of Interview in Pidgin dated 3rd May 2017.  (“Marked exhibit 1A”).

-	Record of Interview – English translation (“Marked exhibit 1B”).

-	Statement of Police photographer Stewart Robert dated 12th May 2017, (Marked “exhibit 2A”).

-	Photographs (Marked “exhibit 2B”).

Witness:  “G.M”

5.     The victim is of a tender age so her initials are used in this judgment to protect the identity.  Since she is of a tender age, the court must be satisfied that she understands liability to punishment if she gives false evidence in the trial against the accused.  So the following questions were asked:

Q:	How old are you?
Ans:	8 years.
Q:	Do you know that if you tell lies, you will be punished?
Ans:	Yes.
Q:	If you tell lies about other people, your mother and father will be angry with you?
Ans:	Yes.
Q:	Do you believe in God, he is the creator of “Man-kind?”
Ans:	Yes.
Q:	If you hold the Bible and promise to tell the truth, nothing but the whole truth and you lie, God will be angry with you?
Ans:	Yes.
Q:	Do you believe in the existence of Jesus Christ?
Ans:	Yes.
Q:	Do you know Jesus Christ died on the cross for sins of “Man-kind”?
Ans:	Yes.
Q:	If you tell lies in court about this man sitting in the dock, you will be punished?
Ans:	Yes.

6.     The Court concluded that the victim understood that she can be punished if she gives false evidence in court against the accused so she was sworn in as first witness for the State.

7.    The victim stated on oath that her parents are from Sawen village Kompiam, in the Enga Province.  She was born in Port Moresby and she resides with her parents and other siblings in a family house located at North Waigani in the National Capital District.  She has three brothers and two sisters and she is the last born in the family.

8.     On the afternoon of 7th April 2017, her aunt cooked food and called all the children to go and eat.  Her brothers and sisters went to the house to eat but she stayed at her mother’s betel nut market outside the entrance to the residence.  The mother chased her into the premises and told her to go to the house and eat.  So she went and enroute to the house, Larsen Niagau was inside the premises and showed her a K2-00 note.  She thought he would give her the K2-00 note so went and as she reached out to grab the K2-00 note, Larsen Niagau grabbed her hand and pulled her towards him.  The accused used the other hand to close her mouth.  This happened near the two old vehicles parked inside the premises.

9.     The accused pulled his trousers down, pulled his penis out and parted the victim’s legs and rubbed his penis on her vagina.  The other siblings called the victim to go and eat but she did not response because the accused closed her mouth with his hand.  He attempted to insert his penis into her mouth when Newman Gabriel, the older brother sighted them and shouted: “Larsen what are you doing there?  The older brother Newman Gabriel became annoyed and assaulted the accused and others joined in to assault him as well.  She stated that “penis, all men have them, not women”.  Similarly, “all men have testicles, not women.”

10.     She explained, when the accused opened his trousers zipper, “he took his penis out and forced my head towards his penis.  He forced me to suck his penis when my brother assaulted him.  I did not suck his penis.”

Evidence for the Defence

Larsen Niagau

11.     He is from Kanamanda village, Wabag in the Enga Province.  He is 37 years of age and is a bachelor.  He resides with his sister in a house located along Pelican street, North Waigani in the National Capital District.  The victim and her family are his neighbours.

12.     On the night of 7th April 2017, he went to the market located in front of the canteen to buy betel nuts.  This is the market of Techla Gabriel, the victim’s mother.  He bought the betel nuts and stood in front of the canteen and chewed them when the victim “M.G” met him.  

13.    She asked him to buy her coke and give her some cash.  He responded and said he had no money and told her to leave.  She did not leave instead played with him and she put her hands into his trousers pockets and pulled out some coins.  The mother of the victim sighted them and shouted: “Are you playing during day time or at night?”  The mother in company of other persons assaulted him.  He cannot recognise other persons that assaulted him as it was about 7 o’clock at night.  He was taken to the Waigani Police station where he was detained in the station cells for 3 weeks.  There were no witnesses so he was released from the cells.  

14.     However, on 1st of May 2017, he was re-arrested and on 3rd May 2017 he was interviewed by the police and charged with the offences.

15.     The following questions were asked by the trial judge:

1)	 Q:	when the victim “M.G.” gave evidence in court, she said you attempted to insert your penis into her mouth, and her brother Newman Gabriel saw it so came and assaulted you.  Was she lying to the court? 
Ans:	“I am not clear.  She told lies”

2)	“Q:	 why would she come to court and tell lies about you?
Ans:	I do not know.”

Undisputed Facts

16.      The victim was 8 years of age when the offence was committed upon her.

17.      She attended June Valley Primary school and was in grade 2.

18.      Her parents are from Kompiam in the Enga Province and are residing in a family residence located along Pelican street, North Waigani in the National Capital District.  She resides with her parents and other siblings in the family house.

19.      She is the last born in the family.

20.      The accused was at the front of the canteen at seven o’clock at night.  The canteen is inside the fence to the victim’s family house.  The canteen is approximately two meters from the entrance to the family residence.

21.      He was with the victim when assaulted by the victim’s family members assisted by some members of the community.

22.     The people in the community assisted the victim’s family members to take the accused to the Waigani Police station.

Disputed Facts

23.      Did the accused entice the victim when he showed her the K2-00 note?

24.     Did the accused pull the victim by the hand towards him near the two old vehicles located 15 – 20 meters inside the fence to the family residence of the victim?

25.       Did the accused and victim play games that night?

26.      Did the victim put her hands into the trousers pocket of the accused and pull out some coins?

27.     Did the accused pull his trousers down, take his penis out, part the victim’s legs and rub his penis on her vagina?

28.      Did the accused pull the victim’s head towards his penis when assaulted by the victim’s family members and also members of the community?

29.     Where was the accused with the victim that night when assaulted by her family members and also members of the community at North Waigani?

30.      What was the accused doing with the victim inside her family resident when it was night and dark?

Analysis of Evidence

31.    The victim states that she knows the accused as he lives in a house located along the same street as her family residence at North Waigani in the National Capital District.  He usually gives money to children including herself.
32.     On the evening of 7th April 2017, at North Waigani the accused showed her the K2-00 note so she went to get it.  When she reached out to get the K2-00 note, the accused held her hand and pulled her towards him.  This happened near the two old motor vehicles located inside her family residence about 15 -20 meters from the entrance to that premises.

33.     The accused opened his trousers zippers and took his penis out and pulled the victim towards him.  He parted her legs and rubbed his penis on her vagina.  Although she did not feel anything, she disliked what he did to her there.

34.     The accused pulled her towards his penis and attempted to insert it into her mouth when the victim’s older brother named Newman Gabriel sighted them and shouted “Larsen, what are you doing there?”  Then Newman Gabriel assaulted the accused and other members of the community joined in to assault him as well.  The accused was taken to the Waigani Police station and he was handed over to the police.

35.     The accused on the other hand stated that he was at the victim’s family residence at about seven o’clock at night.  He bought some betel nuts at Techla Gabriel’s market outside the entrance to her family residence.  She is the victim’s mother.   He stood in front of the canteen chewing betel nuts when the victim arrived and asked him to buy her coke and give cash as well.  He told her he had no money so informed her to leave.

36.     The victim did not leave but played with him and she put her hand into his trousers pocket and took out some coins.  At that instant the victim’s mother shouted: “Are you playing during day time or at night?” and she proceeded to assault him.  Other members of the community joined in to assault him as well.  The accused was asked: “Why would the victim come to court and give false evidence against you?”, he responded: “I don’t know.”

37.     It is a natural human behaviour and re-action when a wrong is committed upon a person, he/she will complain of it and tell others.  In the instant case, the accused did something unpleasant to her so she was not happy and consequently reported it to the police and eventually gave evidence against him in court during the trial.  So I accept that on 7th April 2017, at seven o’clock at night, he was at the victim’s family residence were the two old vehicles are parked about 15 -20 meters from the entrance to that family residence.  So what was he doing with the victim at that location at night?

38.     I accept the victim’s account that the accused rubbed his penis on her vagina.  He proceeded to pull the victim’s head towards his penis and attempted to insert his penis into the mouth when her older brother Newman Gabriel sighted them and shouted: “Larsen what are you doing there?  Then Newman proceeded to assault the accused.  The victim’s mother did not assault him.

39.     The victim gave uncontradicted evidence despite the fact that she was of tender age.  She gave her account as she recalled without support from the mother and father or the older brothers.  Her evidence is not discredited at all.  She gave her evidence confidently in court.

40.     Whereas the accused said he was playing with the victim at night in the victim’s family premises.  So what sort of games did he play with her at that location?  He gave no evidence of the type of game both played at that location.  He lied when he said he bought betel nuts and stood in front of the canteen after the victim arrived and both played.  He stated he does not know the reasons why the victim lied about him in the trial.  Obviously, in my opinion, he did something unpleasant to her so she complained of it.  The unpleasant events are that he rubbed his penis on her vagina and he attempted to insert his penis into the mouth when she did not consent to these acts.

VERDICT

1)	The accused is found guilty of Sexual Touching of Minor pursuant to section 229B (1) (4) of the Criminal Code Act (as amended).

2)	The accused is found not guilty on the second count of Sexual Penetration of a minor pursuant to section 229A (1) (2) of the Criminal Code Act (as amended).  He is acquitted on that count.

3)	However, the accused is found guilty on the alternative count of Indecent Acts directed at a child pursuant to section 229C (1) (2) of the Criminal Code Act (as amended).

ISSUE

41.      What is the appropriate sentence the court should impose upon the prisoner?

LAW

“Section 229B.  Sexual Touching.

(1)	  A person who, for sexual purposes – 
(a)	  Touches, with any part of his or her body the sexual parts of a child  under the age of 16 years; or
(b)	Compels a child under the age of 16 years to touch, with any part of his, or her body, the sexual parts of the accussed’s own body, is guilty of a crime.  

Penalty – subject to subsections (4) and (5), imprisonment for a term not exceeding seven years.

“Section 229C.  Indecent Act Directed at a child.
(1)	A person who commits an indecent act directed at a child under the age of 16 years of age is guilty of a crime.

Penalty – subject to subsections (2) and (3), imprisonment for a term not exceeding five years.

(2)	 If the child is under the age of 12 years, an offender under subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding seven years.”

PERSONAL PARTICULARS

42.     He is from Kanamanda village, Wabag in the Enga Province.  He is 37 years of age and is a bachelor.  He is self employed.  He has limited formal education.  He resided with his sister at North Waigani when he committed the offences.

AGGRAVITING FACTORS

43.     The prisoner is much older than the victim and the age gap between them is 26 years.  Such offence is prevalent in the country these days.

MITIGATING FACTORS

44.     The prisoner is a first time offender.  He used no weapons during the commission of the offences.

45.     The victim sustained no physical injuries.  She is well now.  The prisoner was assaulted by the victim’s family members and others from the North Waigani community so has been punished for the wrong he committed in the community.

SENTENCE

46.     The prisoner knew the victim well as he sometimes slept in the family house.  They are from the same province so the victim was allowed to be with the prisoner at times.

47.     However, all changed when he was found red-handed committing the offences.  The community at North Waigani disapprove of his actions so assaulted him to show their displeasures.  Such offences are prevalent in the country and offenders ought to be imprisoned for offences they commit against such young victims.

48.     The victim did not suffer physical injuries but she disliked what the prisoner did to her that night.  An imprisonment term ought to be imposed upon him to show that such conducts are not condoned by the courts in this jurisdiction.

49.     I have considered the submissions made by counsels, the case law authorities cited and applying the discretionary powers vested upon myself under section 19 of the Criminal Code Act, the following sentences are imposed:

Count 1:	Sexual Touching – The prisoner is sentenced to be imprisoned for a period of 3 years, 6 months 3 weeks in hard labour.

Count 2:	Alternative – Indecent Acts Directed at a child – The prisoner is sentenced to be imprisoned for a period of 3 years, 6 months and 3 weeks in hard labour.

50.     Both sentences are ordered to be served concurrently upon each other as the offences were committed on the same victim, at the same time and location at North Waigani.  The pre-trial custodial period of 3 years, 6 months and 3 weeks is substituted for sentences imposed.

ORDERS

(1)	Both sentences are to be served concurrently upon each other.

(2)	The pre-trial custodial period of 3 years, 6 months and 3 weeks is substituted for the sentences imposed.

(3)	The prisoner is to be released from custody forthwith.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused