N9555
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1179 OF 2020

STATE

V

RAYMOND EDDIE

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

CRIMINAL LAW – Practice and Procedure – Charge under Section 229 A (1) & (3) of Criminal Code – Sexual penetration of a girl under 16 years of age.

Cases Cited:

The State v Kelly Palek (2016) N7384

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

18th February, 2022

1.	SALIKA CJ: INTRODUCTION: The prisoner in this matter is charged with one count of sexual penetration of Varsity Micah, a girl under the age of 16 years.  The charge is brought under Section 229A (1) & (3) of the Criminal Code Act.

BRIEF FACTS
2.	The brief facts are:

“The State alleged that Raymond Eddie inserted his penis into the vagina of Vasty Micah on 10th July 2020.  At the time, Vasty was fourteen (14) years.   She was born on 13th December  2006.  Victim Vasty Micah is a grand-daughter of Dianne Paison and Paison Leo. The accused was employed by PNG Quality.  Mr and Mrs. Paison had maintained Vasty since she was four (4) years old.    Their family and, that of accused Raymond’s family were neighbor’s and were family friends.

On 10th July 2020, between 10.00 pm and 11.00 pm, Vasty went into Raymond’s room at the invitation by Accused where they had sexual intercourse and she remained with him until the next morning before she returned to her family.  She was questioned by her grandmother and Victim told her that Accused had sexual intercourse with her in his room.

The State further alleges that, there was existing relationship of trust between Accused, victim and their family, which Raymond breached, as they were close-family friends.  And the State further alleges that, she was a child under the age of 16 years.

The action/conduct of accused Raymond contravened Section 229A (1) & (3) of the Criminal Code Act as amended.”

ISSUE

3.	The issue before the Court is for the Court to determine the appropriate sentence to impose on the prisoner.

THE LAW

4.	Section 229A (1) says:

(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 the offence which the prisoner is charged with is life imprisonment, subject to Section 19 of the Criminal Code Act.

PERSONAL PARTICULARS

6.	The prisoner is 34 years old, married and has four children.  He was employed as a security guard at the commission of the offence.  He was the sole bread winner of the family.  He was educated up to Grade 6 level at Ladava Community School.

MITIGATING FACTORS

7.	The following mitigating factors are noted:

(a)	He is a first time offender.
(b)	He pleaded guilty to this very serious offence.
(c)	No physical injury to victim.
(d)	No aggravated violence on the victim.

AGGRAVATING FACTORS

8.	The following aggravating factors are noted:

(a)	The victim was 14 years old then. 
(b)	The prisoner was 34 years old then – a 20 years age gap and difference.
(c)	The victim treated the prisoner as an uncle and looked up to him for support – thus a trust relationship was established for a period of 10 years.
(d)	Breach of trust by the prisoner.
(e)	Offence is prevalent.

ALLOCUTUS

7. 	This is what the prisoner said on allocutus.  He read from a written statement:

“Your Honour, I faithfully and humbly thank you for the time granted to me to say what I feel and know before the Court would lay its sentence on me.

I thank God almighty and say sorry for breaking the law as He is our law giver.

Your Honour, I’m sorry for breaking mother law of the Country, Papua New Guinea, and the National Court and its officials with honourable Judge due to a respect, I want to apologise for the offence that I have done which caused me to break one of the Country’s laws.

Your Honour, I,m sorry to the victim for the offence I have committed against her and her families.  I also say sorry to my families for that I have bring shame upon them as well.

Your Honour, this has been the first time for me to commit such an offence due to my pressure and frustration from my victim’s cousin brother (Moses Paison) and my wife’s words that caused me to commit this offence which I believe was wrong and to deserve to face the consequences in this Court to help me become a better, honest and faithful person in the future.

Your Honour, I’m married, I’m a father with four (4) children and since I was arrested, my wife and children were been discriminated and rejected by both my families and my wife’s families.  They are now unsure where to settle and whom to depend on.  My daughter had a baby from my victim’s cousin brother and she is out of her education and too, she is helpless.  While I’m in custody, no one supports my children in their welfare and future education as well.

Your Honour, my father and mother are very old and no one to support them as I am the only one in the family who work to support them with financially as their bread winner.

Your Honour, for these reasons, I kindly ask this honourable Court to have Mercy on my and grant me Probation, to serve my term outside.  That I can be able to reconcile with my families as well.

Your Honour, with my appreciation and honour to this honourable Court for your precious time and effort, committed in setting this cause of mine, and also to my good CIS officers for their tireless remandee in their safe custody.”

8.	Everything he said in his allocutus is something he should have thought about before getting himself into this mess.    The things he has mentioned are the natural consequences of what he did.  All these things he said have a flow on effect of his wrongdoing.  It is now too late to be talking about these things.  

9.	He was already married and has 4 children, yet he wanted another one.  He chose a wrong one at the wrong time.  You planned this well over time.  First, you started by giving her presents and got her trust and then you struck.  That is the work of a professional operation and executed your plan and things turned out the way you planned it.

10.	I take note of your concerns for your family, but you must be held responsible for your wrongful criminal conduct and the wrongs you have committed against the State and its citizen especially the vulnerable victim, 20 years younger than you.

11.	The prisoner kept the victim overnight to have sex with her.  There appeared to be some element of consent by the victim in this case.  However, that consent in my view was obtained because over time, the prisoner had been over generous to her giving some gifts of money and buying her clothes and so her mind was over borne by that fact that she had to repay by consenting to his request for sex.  Not only that but his offer to marry her would have played in the mind of the victim.  The victim being naïve did not resist for long.

12.	Consent is not an element in this charge and so may only be an extenuating factor.   All forms of sexual violence against children, male or female is outlawed and carry very heavy penalties.  See The State v Kelly Palek (2016) N7384.

13.	On this circuit of 4 days alone, I had to deal with four such cases in Alotau.  Sexual penetration against minors is a very prevalent offence in this province and town.  The Courts need to help protect them by imposing higher sentences.

14.	Considering all the factors, the circumstances of this case, mitigating and aggravating factors and extenuating factors, I impose a sentence of 10 years imprisonment in hard labour.  He has been in custody for 1 year 6 months.  That pre-trial custody period is taken off the head sentence.  The balance he will serve is 8 years and 6 months in hard labour.
________________________________________________________________
Public Prosecutor: Lawyer for the State	 
Public Solicitor: Lawyer for the Prisoner