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State v Bobby [2022] PGNC 149; N9557 (18 February 2022)

N9557

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1431 OF 2021

STATE

V

NATHANIEL BOBBY

Alotau: Salika CJ
2022: 15^th & 18^th February

CRIMINAL LAW – Practice and Procedure – Charge of sexual penetration of a child under 16 years – Charge under Section 229 A (1) of the Criminal Code as amended.

Cases Cited:

Goli v The State (1979) PNGLR 653
State v Amu Aru (2016) N6917
State v David Awi (2016) N6563
Sabiu v The State (2007) SC 866
State v Kopun (2009) N3871

Counsel:

Mr D Mark, for the State
Mr C Namono, for the Prisoner

18^th February, 2022

1. SALIKA CJ; INTRODUCTION: Nathaniel Bobby pleaded guilty to one count of sexual penetration of a child under the age of 16 years, a charge under Section 229A (1) of the Criminal Code Act as amended.
   

BRIEF FACTS

2. The following facts were put to the prisoner on arraignment:
   

“Wilhelmin Kesipik is the Step daughter of the Accused Nathaniel Bobby, who is a child from his wife Samantha Kesipik’s previous marriage. Victim was then a student doing Grade 6 at Bwaruada Primary School in Esa’ala. On 22^nd January 2021, Accused entered Victim’s room when she was asleep and allegedly made a hole in her trousers/skirt, and sexually penetrated her vagina with his penis.

On that occasion, the mother of the Victim was not in the house when it occurred.”

ISSUE

3. The only issue for determination by the Court is the punishment to impose on the prisoner.
   

THE LAW

4. Section 229A of the Criminal Code Act provides
   

“229A

(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) .........

(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 is liable, subject to Section 19, to imprisonment for life. ”

5. The maximum penalty for this offence is 25 years subject to Section 19 of the Criminal Code Act.
   
6. It is trite law that the maximum sentences are reserved for the worst type of sexual penetration cases. See Goli v The State (1979) PNGLR 653. Is this the worst type of sexual penetration of a child case, such that the maximum penalty should be imposed? My reply to the question is “No”. The victim did not suffer any physical injury from the encounter.
   
7. All forms of sexual abuse cases against children, both boys and girls, are outlawed and the maximum penalty for the charge the prisoner is convicted of is 25 years imprisonment subject to Section 19 of the Criminal Code Act.
   
8. In this case, the prisoner admitted he sexually penetrated his stepdaughter.
   

PERSONAL PARTICULARS

9. The following personal particulars are noted.
   
   • He is from Lelehidi village, Huhu Local Level Government.
   • He is 39 years old.
   • He is married to Samantha Kosipik.
   • He has two children.
     

MITIGATING FACTORS

10. The following mitigating factors are noted:
    
    • (a) He pleaded guilty
    • (b) First time offender.
    • (c) Co-operated with police.
    • (d) Expressed remorse.
    • (e) Early admission.
      

AGGRAVATING FACTORS

11. The following aggravating factors are noted:
    
    • (a) Age gap of 25 years between prisoner and victim.
    • (b) Victim is a minor and a relative.
    • (c) Prevalence of offence.
      
12. I note the case precedents of the State v Amu Aru (2016) N6917, a child under 9 – 15 years was imposed. The State v David Awi (2016) N6563 – victim 6 years old - 10 years imposed. Sabiu v The State (2007) SC866, victim under 12 years of age, the Supreme Court said 15 years was appropriate. That was in 2007. In this case, the victim was 13 years of age.
    
13. In 2009, Kandakasi J (as he then was) in State v Kopun (2009) N3871, sentenced a 30 year old man for an offence under Section 229A on a 13 year old girl child to 15 years imprisonment. It is 2022 now. This offence was committed in 2021. The age difference there was 17 years. This case is similar. The prisoner here is 39 years old. The victim was 13 years old thus an age difference of 20 years.
    
14. The Court’s duty is to deal with persons offend against the laws and to give full effect to the intention of Parliament. The intention of Parliament is the intention of the people. The Court’s duty is to consider the circumstances of the commission of the offence and to impose appropriate penalties on the offenders. It is important for offenders of such serious crimes to know and understand that they will be punished severely for such crimes. The Courts have a duty, legal and moral to protect on vulnerable children predators such as this prisoner.
    
15. I take into account all the mitigating factors and the aggravating factors in determining the sentence.
    
16. Considering all the factors, the circumstances of the case, the mitigating factors and the aggravating factors, I impose a sentence of 15 years imprisonment. He has been in custody for 10 months. That is taken away and the balance to serve is 14 years 2 months imprisonment in hard labour.

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