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State v Guise (No 2) [2024] PGNC 289; N10957 (25 July 2024)

N10957

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1468 OF 2023

THE STATE

V

JOHN GUISE
(NO 2)

Minj: Miviri J
2024 : 19^th 22^nd 24^th & 25^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Sexual Penetration S229A(1)(2) CCA – Trial – Denial – Victim 10 years old – Sexual Penetration – Recent Complaint Father – Blood and Injury to Vagina Witness – Accused Relative and Known – Prisoner Married Two Wives – Immediate Relative – Violation of Child very Tender Age – 50 Year Old Man 10 year Old Female – 38 years difference From Date of Offence – Serious Aggravating Injuries to Vagina & Surrounding – Very Bad & Serious Offence – 25 Years IHL.

Facts

Prisoner sexually penetrated the 10-year-old girl as she went into nearby bushes to relieve herself. He penetrated his penis into her vagina and then gave her K1.00. The father was alerted took the daughter saw the bleeding and the injuries on the vagina and confronted the accused leading to his arrest.

Held
Trial
Relative
Identification firm
Sexual Penetration
10-year-old child.
By 48-year-old Relative
50 years old at Sentence
Intent of Legislature
Protection of young children
25 years IHL pursuant to Section 229A (1) (2) CCA.

Cases Cited:
John Elipa Kalabus v The State [1988] PGNC 120; N604
State v Fego [2024] PGNC 14; N10663
State v Peter Lare [ 2004] PGNC 218; N2557
State v Kutetoa [2005] PGNC 137; N2814
State v JB [2007] PGNC 66; N3224
State v Jonathan [ 2008] PGNC 31; N3315
State v Junior Wii (2024) N10909
The State v Elizah Tumun (2024) N10955
Paul v State [2017] PGSC 33; SC1630
Wartovo v State [2019] PGSC 11; SC1775
Sabiu v State [2007] PGSC 24; SC866

Counsel:

P. Tengdui, for the State
D. Pepson, for the Defendant

SENTENCE

25^th July 2024

1. MIVIRI J: John Guise of Kondopina Block, Dei Council, Western highlands Province, now appears for sentence after he was found guilty of sexual penetration of a 10-year-old girl Andy Daka under section 229A (1) (2) of the Criminal Code Act.
   
2. The indictment charged that; “He on the 16^th day of September 2022 at Kondopina Block engaged in an act of sexual penetration with one Andy Daka, a child under the age of 12 years old namely that she was 10 years old by inserting his penis into her vagina contrary to section 229A (1) (2) of the Criminal Code Act.”
   
3. Which section 229A Sexual Penetration was in the following terms: -

“(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) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(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 of a crime, and is liable, subject to Section 19, to imprisonment for life.

4. The facts alleged on arraignment were that on the 16^th September 2022 around 3.00pm Andy Daka, 10 years old female child from Kondopina Blocks in the Dei Council area of Western Highlands Province had left the field where independence celebration was held. She was going back home. Along the way She met her mother and told her that she wanted to go to the toilet. The mother said She would wait for her. The accused John Guise who was walking behind the child heard this, and as the child reached her block, the Accused grabbed her and pulled her three blocks back, away into his coffee garden. There he gave her K1.00 then removed her clothes, then his trousers and inserted his penis into her vagina and had sexual intercourse with her.
   
5. When the child felt pain and tried to call out, he covered her mouth and continued until he satisfied himself and then he told her to go to the house whilst he remained in the coffee garden. The child came out of the coffee garden and was met by her father who was looking for her. And he noticed her bleeding from her private part down her legs. He took her to the hospital at Kimil. Then the matter was reported to the Police at Banz. Resulting in the arrest of the Accused now in court as a result.
   
6. This is clearly a very serious offence of sexual penetration of a child under 12 years old. She was only 10 years old small in stature timid and helpless when she gave evidence. A child innocent of any sexual tendency’s inclinations, she was brutally and painfully introduced to sexual intercourse by a relative, John Guise who lived adjourning the family there. No one expected that a young child would be attacked next to her house and immediately where all the family lived including the prisoner. A public frequented road it was considered very safe even for a child, 10-year-old complainant to relieve herself of the call of nature. She will live for the rest of her natural life with that always with her. And it is summed by Ringo Kula the medical officer in this way, it was done by a man as he attempted to penetrate his penis into her vagina. And there was rape committed. He made a report Exhibit P2 dated the 16^th September 2022 of that examination. He wrote, “In addition, there were sperm around the vaginal area, ...inflamed labia and scratched labia vulva.” Notably he says she was carried by the father into the examination as she could not walk of her own accord. The result of the actions of the prisoner.
   
7. It was a very well-planned crime because the young child recounted when asked by the father, she said John Guise gave me K1.00 and he raped me. She was not walking properly and crying at the same time and gave me the K1.00. The man raped me and gave me the K 1.00 coin. I carried her and took her to the house to confirm it. Her vagina was scratched and bleeding. I confirmed it was true, so we came to that person. Her mother was also there. He knew for sure he will be uncovered of that wrong, he tried to stop it by giving her a mere K1.00 to stop her pain. That is evident by the father’s evidence. She was bleeding which was dripping down onto her legs visible when he saw it. And confirmed in the presence of the mother at the house. It is cemented by the medical personal at Kimil health Centre exhibit P2 particulars set out above. She suffered with the pain that was inflicted upon her when he penetrated his penis into her vagina, causing the injuries that were evident seen written out by the medical officer. Her pain and suffering at the pleasure of the prisoner must be compensated in the sentence passed upon her assailant the prisoner. He must be made to realize that young girls 10-year-olds, tender, young, venerable children, helpless who cannot fight for themselves, defend themselves, must be protected by the safe hands of the law. This Court will not fail in its duty to all by ignoring these facts that are forever prevalent across the length and breath of our Country.
   
8. Men and boys, persons, who think that their pleasure is above the law, must realize that the sure hands of the law does not leave any stone unturned in its wake against those who chose to offend it as here. Especially in the face of evidence that is overwhelming and leaves no conclusion other than the guilt of the prisoner as here. Continued defiance after a pronouncement of the verdict must surely return what the law prescribes upon the prisoner. He expresses no mercy for the complainant. He does not see the gravity of the offence he has committed. He is 48 years old first offender, originally from Kerowagi District, Simbu Province, but settled at Kondopina Block, Dei Council Western Highlands Province. He has no formal education nor any formal employment record. He spent a year and 10 months waiting trial. That will be deducted from the head sentence. But he must be punished to reflect that this is a crime of abhorrence and can never be tolerated in a civilized and orderly society. When the prisoner defies the boundaries of relation by kin and blood in pursuit without any draw back given, he must be made to realize that the family is the basic unit of society. It is the basis upon which the tribe comes, the community is, and the province is, in the ultimatum the country. Protection of that bond is sacred and especially amongst the Simbu it is a very strong factor. The Highlands of Papua New Guinea and life in this country is very strong and dependent on the family and blood.
   
9. This offence by another family member upon a child within it must be stopped by strong punitive and deterrent sentences. That is what will be accorded this 48-year-old prisoner relative of the 10-year-old complainant. That is an age difference of 38 years old. It is a very wide and is not a case of a person of that age showing maturity respect for the law, kin and relationship. This is a crime of violence committed by a 48-year-old man married with two wives upon a very young and frail 10-year-old. His lust was over the brim has no place given. He really had no excuse. He had two wives to whom he could have easily satisfied his urges and lust. He really has no excuse for the offence. His actions could have easily ended up in similar terms as John Elipa Kalabus v The State [1988] PGNC 120; N604 (27 October 1988). She was at his mercy to do as he pleased. It will not be ignored ever by this Court. When an adult grown man as here takes advantage of the vulnerability of young innocent tender aged children as here, it is a crime of abhorrence, repulsion and should not be tolerated beyond necessity. Quite clearly it must and ought to be stamped out with stern deterrent and punitive sentences. That is clear from the attitude of the public demonstrated when he was apprehended and taken to face the law. It rightly is a lesson to the prisoner but to bring to reality the picture seen by the Legislature in drawing the sentence as it did. And this is not the first time this offence will come before this Court.
   
10. In State v Fego [2024] PGNC 14; N10663 (21 February 2024), four counts, firstly of persistent sexual abuse pursuant to section 229D (1) and (6), sexual penetration with a finger section 229A (1) (2) of the Criminal Code. And sexual touching pursuant to section 229B (1)(b)(4) of the Criminal Code. And indecent act pursuant to section 229C (1) (2) of the Criminal Code. He had pleaded guilty to the four counts and was sentenced to 40 years IHL but reduced on totality to 30 years IHL. Here prisoner was very determined in the offence. And it was a trial in the face of evidence that was glaring. In State v Peter Lare [ 2004] PGNC 218; N2557 (20th May 2014)12 years IHL was imposed upon a 40- year-old prisoner who pleaded guilty to sexual penetration of a 10-year-old girl repeatedly over time. In State v Kutetoa [2005] PGNC 137; N2814 (22 March 2005) a 39-year-old prisoner was sentenced to 17 years in jail for sexual penetration of a 10-year-old girl. He had pleaded guilty to the charge under section 229A of the code. In yet another case before this court in Kokopo State v JB [2007] PGNC 66; N3224 (20 September 2007) he had persistently abused his 13- and 15-year-old daughters, he was sentenced to 26 years IHL, but reduced to 20 years on the totality principle. In the State v Jonathan [2008] PGNC 31; N3315 (12 March 2008) persistent sexual abuse of a 13-year-old girl who became pregnant drew 18 years IHL for persistent sexual abuse contrary to section 229D the penalty provision had the maximum sentence of life years like section 229A.
    
11. In the sittings in this circuit in State v Junior Wii (2024) N10909 prisoner was 17 years old. The girl was 11 years old, and a trial was run. Both were not related, and prisoner used a Bush knife, and she incurred injuries to her vagina. Fifteen (15) years imprisonment was imposed. Further in The State v Elizah Tumun (2024) N10955 12 years IHL was upon the prisoner 26-year-old man, who sexually penetrated a 10-year-old girl. He pleaded guilty to the charge under section 229A (1) (2) of the Code. Both cases are distinguished by their facts to the present also charged convicted under the same provision. Here is a 48-year-old on a trial against a 10-year-old. These follow what the Supreme Court has emphasized because consent is not an element of both convictions but is a very relevant factor to account for trust authority and dependency as is the case here: Paul v State [2017] PGSC 33; SC1630 (3 November 2017).
    
12. Which is an aggravating feature that will see sentence parallel for seriousness evidenced. Twenty-two (22) years for persistent sexual abuse contrary to section 229D (1) and (6) at first instance was confirmed by the Supreme Court and the appeal dismissed in Wartovo v State [2019] PGSC 11; SC1775 (1 March 2019). And 17 years imprisonment was confirmed and the appeal against dismissed in Sabiu v State [2007] PGSC 24; SC866 (27 June 2007) He had pleaded guilty to sexual penetration of a 6-year-old boy anally who suffered bruising, bleeding and pain as a consequence like in this case. He was the nephew of the prisoner, mother of the victim his sister. He explained that he committed the offence because he was not paid part of the bride price. In dismissing his appeal against sentence, the court remarked that the sentence was not out of reasonable proportion to the crime of sexual penetration of a minor under 12 years old.
    
13. I hold the same view particularly considering that this is a trial, and the offender is 48 years old at the Commission. She is 10 years old and a relative.That sentence was imposed in 2007 it is now 2024 and the offence is ever prevalent. It must be stopped with punitive and deterrent sentences. In my view the appropriate sentence here given his facts and circumstance is 25 years imprisonment IHL.
    
14. John Guise, you are sentenced to 25 years IHL for the crime of sexual penetration of a child under 12 years old, 10 years old whom you penetrated your penis into her vagina on the 16^th September 2022 at Kondopina Block Dei Council Western Highlands Province. The remand period of 1 year 10 months is deducted forthwith. You will serve the balance in jail forthwith.
    

Ordered Accordingly.

_____________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant