N9638

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. 1246 OF 2021
THE STATE
v
SIMON KALAKANG WADAKAI

Madang:  Geita J
2022:  6th, 9th, 12th March, 12th May

CRIMINAL LAW – Guilty Plea - Sentence – Sexual penetration of a child under 12 years – Existing relationship of trust, authority and dependency as uncle and niece -S. 229A (1) (2) & (3) Criminal Code. 

CRIMINAL LAW – Evidence – Medical findings confusing and not conclusive – This is a classic case of the supremacy of the benefit of doubt to be given to accused’s who plead guilty – S. 229A (1) (2) & (3) Criminal Code. 

Cases Cited: 

Goli Golu v. The State [1979] PNGLR 653
Kuri Willie v The State [1987] PNGLR 298
Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128
R v Yoka Kiok [1970] N607
Sabui v The State [2007] PGSC 24; SC866 
Saperus Yalibakut v The State [2005] SCRA No 52
State v Hebrus Amon [2018] N7634. 
State v Penias Mokei (No. 2) (26.09.04) N2635.
State v Samson [2005] PGNC 160

Counsel: 

Mr. Dale Dogori, for the State.
Mr. Loloma, for the accused.

DECISION ON SENTENCE
12th May 2022 

1.      GEITA J: 	The accused pleaded guilty before me on 8 March 2022 for sexually penetrating a child under 12 years. At the time the accused was related to the victim as his niece. The offence comes under s.229A (1) (2) & (3) Criminal Code Act and subject to Section 19, imprisonment for life. You are now before me to receive your sentence. 

2.	The brief facts as agreed to by the prosecution and defence on the depositions for the plea of guilty are these: On 28 February 2021 between 8 pm and 9 pm the complainant Loraine Kintau was returning home after dinner at her maternal uncle’s house at Mangep Care Centre in Sumkar. Along the way he was accosted by the accused and dragged into the bushes some 20 meters away from the main road. He then forced her on to the ground and removed her clothes. He did likewise and had sexual intercourse with the victim by inserting his penis into her vagina. Then he ran away after he had finished with her. The victim returned home, cleaned herself and went to sleep without letting her family members know what had happened to her. 

3.	The victim woke up the next morning with blood stains on the back of her dress which caught the attention of her uncle who in turn informed his wife. The couple thinking that the victim was undergoing her first menstruation period became suspicious as she was too young. Upon questioning the victim, she admitted that the accused who was related to her mother sexually penetrated her. The matter was reported to police some three weeks later and the accused was arrested and charged. A medical examination report showed that the young victim’s hymen was missing, and she had syphilis and was treated. 

4.	The accused aged 20 years, single and unemployed comes from Asuramba village, Manam Island, Bogia District. The highest primary school attained was grade 6 at Dangele Primary School. 

5.	The mitigating factors favourable to you include the following: No prior convictions; you pleaded guilty thus saving Court and the State time and resources in conducting a trial. You also co-operated with police. The aggravating factors against you are that the victim, your niece was forced to have sex with you against her will, stigma, and shame. 

6.	 As regards what would an appropriate sentence be in your case, your lawyer conceded on your behalf that the crime you have committed is profoundly serious however submitted that your case does not fall under what is considered as worst category of sexual penetration cases. I too agree that this case is not the worst of its kind and so the maximum penalty will not be imposed in your case. (Goli Golu v The State [1979] PNGLR 653.)

7.	I have read your committal depositions again and I am quite disturbed that the medical report giving rise to confirming that sexual activity did take place between you and the victim disjointed and, in my view, confusing. First up were the vaginal examinations: Dr Vero Agua reported that there were no bruises and no inflammation in the perineum region of the vagina. She concluded that the speculum or a special instrument used by doctors and nurses to examine the inner parts of the vagina was unable to pass through the very narrow vaginal orifice. Despite this lack of internal vaginal examinations, she concluded that the hymen was out. To my mind this was a serious medical omission. This finding in my view is flawed and not conclusive. There is no way for her to make that finding in the absence of passing the speculum inside the vagina. Furthermore, in her summary of finding in page 2 of her report dated 2 December 2020, Dr. Vero Agua concluded, and I quote: “Findings are not supportive of sexual assault as she presented to us.”

8.	Considering this damming finding, I find myself at the crossroads whether to change the accused’s original guilty plea to that of not guilty at this late stage of trial? In the absence of relevant case precedents and legislation on this point, I find myself in the vacuum. To proceed to sentence, pretending that the guilty plea is safe to my mind is tantamount to inflicting grave injustice to the accused. Conversely changing the plea at this late stage of trial would amount to acting without legal basis.

9.	I ask myself what options are out there for me to navigate out of this problem. First up in my mind is to seek assistance from the Constitution and second is to invite both Counsel to address me on this point. I have followed the latter option.

10.	In his allocutus the accused apologised to the Court, to the lawyers and court officials. He apologized to the victim’s family and asked to be placed-on probation as this was his first time in court. Counsel of defence Mr Loloma submitted that a sentence of between 10 years and 13 years is to be considered for the accused. The accused is 20 years old and single. He was educated up to grade six (6) and has been in custody for 1 year and four months now.

11. As to aggravating factors the victim was aged 11 at the time of the sexual assault, prevalence, and age difference. As to his mitigating factors, he pleads guilty, first-time offender and expressed remorse. The Court was invited to take judicial notice of the sentencing process employed in the case of State v Penias Mokei (No. 2) (26.09.04) N2635. A comparable case submitted to court include State v Hebrus Amon [2018] N7634. This was a guilty plea case of a child under the age of 12 years, aged 9 years. The prisoner was sentenced to 12 years imprisonment.

12. Mr Loloma concede that whilst the offence committed was serious the prisoner was a youthful offender then aged 19 years. He asked for a sentence comparable to his age in mitigation including the payment of K5000 as compensation paid to the victim’s relatives. A partial suspension of sentence was also suggested.

13.	 Mr Digori submitted that considering the facts, circumstances and the aggravating factors in this case, an appropriate term of custodial sentence within the range of 10 years to 15 years be imposed by the Court. The case of Sabui v The State [2007] PGSC 24; SC866 was cited as a guide. Counsel submitted that the Supreme Court in making reference to the case of State v Samson [2005] PGNC 160 set the starting point of 15 years when victims are below the ages of 12 years. 

14. Having heard both Counsel on this point, I will navigate my way around the suggestions made as the options suggested in the best interest of justice and fair play. Counsel for defence Mr Loloma concede that the accused plea was obtained from the facts and allegations. As to the inconsistence in medical findings he submitted that that report was compiled after 3 weeks. The Court was invited to give the accused the benefit of doubt.

15. Mr Digori submitted that the plea was correctly obtained and not irregular as the accused entered a guilty plea on the facts put before him. As to the absence of sexual penetration he submitted that the actual sexual penetration need not be established pursuant to s. 6 of the Criminal Code. (R v Yoka Kiok [1970] N607). Counsel submitted that the accused plea of guilty was properly obtained as the victim in her evidence experienced some pain during the sexual assault, adding that her evidence lends support for penile sexual penetration. The guilty plea was therefore safe and invited the Court to sentence him accordingly.

16.	For the moment, I am satisfied that your mitigating and aggravating factors are evened out save for your age difference, and the breach of trust as uncle/niece. These types of relationships within families are especially important and it is always the innocent children who fall prey to these cunning tricksters. To my mind Courts must send extraordinarily strong messages to the public not to commit these types of crimes against innocent and vulnerable children. Seeing in that light your case may be considered serious and you could be sent to prison for a long time.

17.	I take note that you are a first-time offender and have admitted to this crime. I am of the view that the Court must reciprocate and make allowance for your early guilty plea. Considering what both counsels have submitted before me I will not consider a custodial sentence. To my mind this is a classic case of the supremacy of the case proportion that the benefit of doubt should always be accorded to accused’s persons who plead guilty in the first instance: (Saperus Yalikabut v The State SCRA No 52 of 2005).

18.	To my mind this is a case of an innocent young man who found himself in a vulnerable tempting situation with a relative victim at a secluded location and committed the crime. He would be 18 years when he committed the crime as he is now 20 years. Having observed his demeanour in court, he appears very innocent and quite spoken and freely admitted his mistakes. To this end having him incarcerated for a short or lengthy period of time in my view would be detrimental to his future. He has already served 16 months in pretrial custody. This is sufficient deterrence in my view. He is a youthful first-time offender and is entitled to have that considered in his mitigation. (Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128). As to whether I should consider a non-custodial sentence I find comfort in the case of Kuri Willie v The State [1987] PNGLR 298. In that case late Hinchliffe, J as he was then, discussed the need for courts to investigate alternatives to imprisonment when dealing with youthful first-time offenders with imprisonment to be used as the last resort. (Emphasis mine). I agree with his sentiments and adopt them in this case. 
 
19.	Having considered the mitigating and aggravating factors including the immensely helpful submissions from Counsel, I will impose a mid-range sentence of 10 years less 1 years 4 months for your pretrial custody period. I consider that the pre-trial custody period sufficient term of sentence and will suspend the balance of the sentence and place the accused on Probation of 3 years with conditions. 

Sentenced accordingly.

____________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner