N11289

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 950 OF 2024

THE STATE

V

JACK PETER

WALUME: WOOD J
12, 14 MAY 2025

CRIMINAL LAW – sentencing provisions - prisoner found guilty of sexual penetration – section 229A(2) of the Criminal Code 

The prisoner was found guilty at trial on the charge that on 6 August 2023 at Haus Fire Settlement, Moro, Southern Highlands Province, Papua New Guinea, he engaged in an act of sexual penetration of a female child under the age of 12 years (referred to by the Court as ‘ES’) being 5 years of age at that time, by inserting his fingers into the vagina of ES contrary to section 229A(2) of the Criminal Code

Aggravating and mitigating factors and consideration of gravity of the offence 

Held:
1.	The prisoner is sentenced to 15 years imprisonment.
2.	1 year and 9 months are deducted for time spent in custody.
3.	The prisoner is to serve the remaining term of 13 years and 3 months in custody.
4.	No part of the sentence is suspended.

Cases cited
Goli Golu v State [1979] PNGLR 653
Simbe v the State [1994] PNGLR 38
The State v Robin Hevena (2024) CR No. 402 of 2023
The State v Fred (No.2) [2014] PGNC 261; N5758
The State v Junior Wii [2024] PGNC 242; N10909
The State v Iran Gaira [2015] PGNC 44; N5965
The State v Macy Sigege [2014] N5521
The State v Moses Imina [2021] PGNC 424; N9196
The State v Gorai (No.2) [2016] PGNC 113; N6295
The State v Sawan Raumo [2007] PGNC 187; N4983
The State v Stanley Sabiu [2005] PGNC 223; N3659
The State v Pennias Mokei (No.2) [2004] PGNC 129; N2635
The State v Robin Hevena (2024) CR No. 402 of 2023
The State v Standley Konda (2014) N5780

Counsel
Ms T Kagl for the State
Mr D Pepson for the prisoner

 JUDGMENT ON SENTENCE

1.	WOOD J: Following the trial in this matter, the prisoner was found guilty on 7 April 2025 of the sexual penetration of a five year old girl on 6 August 2023 at Haus Fire Settlement, Moro, in Papua New Guinea, (who I shall refer to as ‘ES’) whereby he inserted his fingers into the vagina of ES contrary to section 229A(2) of the Criminal Code.

2.	At the commencement of the prosecution case, it relied on the Brief Facts, which I have recited below, namely:

‘It is alleged that on the 6th of August 2023 at Haus Fire Settlement in Moro, Lake Kutubu, the complainant (ES) a female child aged 5 years, was at home by herself, her parents had gone to church that day. The accused Peter Jack aged about 60 years, saw that the complainant was by herself and approached her. The accused grabbed the complainant’s hand and told her to keep silent. He then used his fingers and pushed them into the complainant’s vagina in and out a number of times. The complainant’s parents returned home, they saw that the complainant was unwell and did not eat properly so they asked her. The complainant then told her parents everything that happened. She was then taken to the hospital examined. Upon examination, it was discovered that the complainant’s hymen was ruptured. She was treated and discharged. 

The State alleges that when the accused inserted his fingers into the vagina of the complainant, his actions contravened Sections 229 A (2) (Sexual Offences against Children) of the Criminal Code.’

3.	 The prisoner was charged with the sexual penetration of ES Steven on
6 August 2023 in contravention of section 229A(2) of the Criminal Code.  Section 229A of the Criminal Code Act provides as follows: 

229A. SEXUAL PENETRATION OF A CHILD.
(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.	Section 19(1)(a) of the Criminal Code provides as follows:

19	 CONSTRUCTION OF PROVISIONS OF CODE AS TO PUNISHMENTS.
 (1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–
(aa) .........; and
a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term.

Submissions by the State, including reference to case authorities 

5.	The State made submissions and I have extracted part of the written submissions below, namely:

AGGRAVATING FACTORS
5.         – 	Complainant was an innocent child at a very tender age of 5 years at the time of the offence.  
            -	Prisoner has confirmed that he is currently 52 years old in his PSR, there was a big difference (about 45 years) between the age of the prisoner and the complainant at the time of the offence. 
- 	There was a relationship of trust, authority and dependency between the prisoner and the complainant; the complainant knew him well and calls him ‘bubu’ (or grandfather).  
-	Although no serious physical injuries Complainant suffered extreme pain and redness around her genital area for which she was treated as shown in her clinical notes (Exhibit P-4). 
-	Complainant was traumatized and will continue to suffer emotionally, she will live with the scar in her memory for the rest of her life.
- 	The prisoner maintained his innocence until he was found guilty after trial.
- 	This type of offence is very prevalent in our societies today.

A.	MITIGATING FACTORS

6.		- Prisoner acted alone. 
		- Prisoner used his fingers (digital penetration).
		- No weapon or aggravated violence used. 
- He is a first-time offender.

F.	ISSUES
7.	What is the appropriate sentence that should be imposed on the Prisoner?

G.	SENTENCING TREND
8.	There are other similar cases in this jurisdiction which can be considered by this Honourable Court to assist in sentencing the prisoner.

•	State v Fred (No.2) [2014] PGNC 261; N5758  
- This was a trial matter where the offender was charged with two counts, one of sexual touching and the other was for sexual penetration of an underage child contrary to Section 229A (1), (2) & (3) of the Code. He was found guilty after trial for both counts. Offender was aged 22 years and the victim was 9 years old at the time of offence. Court took into account the aggravating factors including the large age gap, psychological trauma endured by the victim and that there was a relationship of trust in that the offender was the uncle of the victim. The offender was sentenced to 17 years imprisonment for the count of sexual penetration under S229A (1), (2) & (3). 
In deciding sentence, His Honor Lenalia J., who presided over the matter relied on the Supreme Court case of Stanley Saibu v. The State (2007) SC866 where it was held that the starting point for victims of sexual offences who are under the age of 12 years should be 15 years which may be increased or decreased based on the aggravating and mitigating factors of each case.  
•	State v Moses Imina [2021] PGNC 424; N9196  
- This was a plea matter before Sambua A.J. Offender aged 35 pleaded guilty to sexually penetrating a 6 year old female child contrary to Section 229A (1), (2) & (3) of the Code. In sentencing, Court took into account the aggravating factors that there was a large age gap, the victim was of a very tender age and there was no consent. Mitigating factors were considered that the offender acted alone, no weapon or aggravated violence was used, no permanent injury to the victim, it was an isolated incident and prisoner was a first-time offender. In that case the offender was sentenced to 15 years imprisonment. 

•	State v Gorai (No.2) [2016] PGNC 113; N6295  
-Trial matter before Lenalia J. where offender a 33 year old male sexually penetrated a child victim on two occasions, one when she was aged 6 years and the other occasion was when she was aged 7 years. Offender was charged for 2 counts of sexual penetration under Section 229A(2), he pleaded not guilty and matter went for trial. Offender was found guilty and during sentencing, Court considered the aggravating factors which included the large age gap, tender age of the victim on both occasions, breach of trust, psychological trauma on the victim, effect on the victim’s social life and the offender was found guilty after trial. Offender was sentenced to 10 years for the first count and 12 years for the second count totaling 22 years to be served cumulatively. 

•	State v Sawan Raumo [2007] PGNC 187; N4983  
-Plea matter before Cannings J. where offender a 25 year old male sexually penetrated a child victim aged 6 years at the time of offence. Aggravating factors considered in that case included the large age gap, tender age of the victim, no consent, victim injured, there was a relationship of trust and there was no reconciliation attempts by the offender. In mitigation court held that it was a digital penetration, no weapon or aggravated violence used, isolated incident, pleaded guilty and prisoner was a first-time offender. Offender was sentenced to 10 years custodial sentence. 

•	State v Stanley Sabiu [2005] PGNC 223; N3659  
-Plea matter before Kandakasi J. where offender sexually penetrated a child victim aged 6 years at the time of offence. Victim sustained physical injury and bleeding to her genital areas. The offence was motivated by a grudge by the offender against the victim’s parents. Offender was sentenced to 17 years custodial sentence. This decision was later appealed in the Supreme Court in Sabiu v. State (supra). Sentence of 17 years was confirmed and upheld. Supreme Court held that starting point in a case involving a victim below the age of 12 years should be 15 years imprisonment. 

•	State v Pennias Mokei (No.2) [2004] PGNC 129; N2635  
-Trial matter before Cannings J. where offender aged 33 sexually penetrated a victim aged 13 years at the time of offence. Offender was charged under Section 229A(1) &(2) to which he pleaded not guilty and matter went to trial. Offender was found guilty and sentenced to 15 years imprisonment. 

9.	A very recent decision of His Honor Miviri J. delivered in October last year in the State v. Robin Hevena (2024) CR No. 402 of 2023. The facts of that case are very similar to the present case. That case was a trial matter where prisoner a 52 year old male was charged with sexual penetration of a female child aged 5 years old, contrary to Section 229A (1), (2) & (3) of the Criminal Code. He was found guilty after trial. Prisoner used his fingers to penetrate the vagina of the victim. Victim became ill afterwards, this was noticed by the mother who took her to the hospital where she was treated. Victim sustained severe injuries to her vagina. The offender was sentenced to 25 years imprisonment in hard labor. 

H.	CONCLUSION

9.	From the cases cited above, the State submits that the starting point in this case should also be 15 years imprisonment which may be increased or decreased by this Honourable Court after considering the aggravating and mitigating factors highlighted in this submission. 

10.	The State submits that this may not be a worst case however, the aggravating factors in this case are serious and outweighs those factors in mitigation. Most importantly, the victim was 5 years old at the time of the offence which makes this a very serious crime committed by the prisoner. She trusted the prisoner, she frequently visits his home and eats with the prisoner and his family at times, she calls him ‘bubu’ or grandfather; sadly this relationship of trust had been breached. Children are supposed to feel protected and safe in their homes; in our societies today, sad truth is that this type of offence is very common. Therefore, for purpose of deterrence, strong or harsher sentences must be imposed on offenders who commit such crimes on the weak and vulnerable.  

11.	Taking into account the sentencing trend and relying mostly on the recent State v. 
Robin Hevena (supra), it is submitted that an appropriate sentence for the prisoner would be between 15 – 20 years custodial term.

Submissions on behalf of the prisoner, including reference to case authorities

6.	The prisoner, through his lawyer made submissions and I have extracted part of the written submissions below, namely:

MITIGATING FACTORS

We submit the following Mitigating Factors:
 
(a)	The Prisoner is a first time offender with no prior convictions

(b)	The Prisoner Acted alone

(c)	Did not use any weapons or aggravated violence on the victim

(d)	Did not infect the victim with STIs

(e)	Was digital penetration as opposed to penile penetration

B.	AGGRAVATING FACTORS

We acknowledge the Aggravating Factors:

(a)	Large Age Difference between the Prisoner and the Victim

C.	THE LAW
These are the applicable laws to the case before this honorable court that we will be relying on.

(i)	Statute

“229A. SEXUAL PENETRATION OF A CHILD.

(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”
(ii)	Case Authorities
•	Goli Golu vs State [1979] PNGLR 653
•	State vs Junior Wii [2024] [PGNC 242; N10909
•	State vs Iran Gaira [2015] PGNC 44; N5965
•	The State –v- Macy Sigege [2014] N5521
•	The State –v- Standley Konda (2014) N5780
Goli Golu vs. The State [1979] PNGLR 653. The maximum penalty should be reserved for the worst type of cases in terms of facts and circumstances leading up to, during and following the crime. 
We submit the facts and circumstances in this case are not the worst of Sexual Penetration of a Minor that would warrant the Maximum Penalty of Life Imprisonment
Sentencing Trends for other Sexual Penetration of a Child Cases:

•	State vs Junior Wii [2024] [PGNC 242; N10909
The Victim in that case was 11 years of Age. She was collecting firewood at Kimil in Jiwaka Province when the Prisoner chased her and her friends with a bush knife. He captured her and then raped her in the Coffee Gardens at Kimil.

This matter went to full trial with no clear defense, only the fact that the prisoner maintained that it was company policy that people stealing in the Coffee plantation must pay k200 fine. The child did not have any so he said he had sex with her instead.

No compensation was paid in that matter and the Child had to come to trial and relive the event in front of strangers.

He was sentenced to 15 years by Your Honour. with time spent in pre trial custody deducted with no suspensions.

•	State vs Iran Gaira [2015] PGNC 44; N5965

The offender penetrated a 4 year old child’s vagina with his finger. The child was his niece.

The offender was staying with the child’s family in Oro Province. One day when the child was left unattended to, the offender called her to the back of the house where he sexually penetrated her with his finger. 

When the childs mother noticed that the child was not walking properly she questioned her and she told her what the offender had done to her. 

The child was immediately taken to the Popondetta hostpital for medical examination and the matter was reported to the police. 

The medical examination revelaled redness of the labia minora and a laceration or graze measuring 0.5cm x 0.5 cm. 

The offender was sentenced to 11 years imprisonment. 1 year and 3 months spent in pre-trial custody were deducted leaving 9 years and 9 months to be served.

A further 5 years was suspended with conditions leaving 4 years, 9 months to be served in custody

•	The State –v- Macy Sigege [2014] N5521
In that case the prisoner sexually penetrated the victim who was under 4 years old with his fingers. The Prisoner was 16 years old and he was an uncle to the victim. 
The prisoner pleaded guilty, was a first time offender, was also a juvenile, was illiterate, had co-operated with the police, was of previous good character, had expressed remorse and did not infect the victim with any Sexually Transmitted Infection (STI). 
However, the aggravating factors in that case going against him were that there was a large age difference between him and the victim (13 years), there was also a serious breach of trust as the victim was a close relative of the prisoner. The victim also suffered some injuries and trauma to her vagina.
The Prisoner was sentenced to 11 years IHL, less the pre-trial custody period. 4 years of the resultant sentence was suspended on conditions and the prisoner was placed on probation.
•	The State –v- Standley Konda (2014) N5780
In this case the prisoner pleaded guilty to two counts of sexually penetrating two 8 year old girls. He had followed the two girls to the garden where he pushed one of the girls to the ground and then pushed his finger into her vagina. The prisoner then took the girls to the house and told them to play with him, which they did. While they were climbing over him he pushed his fingers into both girls' vaginas.
In that case, His Honour Cannings J. took into account the following mitigating factors. The prisoner pleaded guilty, he was a first time offender, did not use any weapons or aggravated violence on his victims, he did not infect the victims with STIs and that this was digital penetration as opposed to penile penetration. 
Against the prisoner, his Honour found that there was an age difference of 12 years between the victims and the offender, the victims were of tender years, there was no consent, and there was an extreme breach of trust. His Honour therefore sentenced the prisoner to 7 years for each count for a total cumulative sentence of 14 years. Based on the totality principle the prisoner was sentenced to 5 years imprisonment for each count which were ordered to be served cumulatively.
D.	SUBMISSION ON APPROPRIATE SENTENCE
We submit that this is not a worst case of Sexual Penetration of a Minor.
We ask the court to consider a lenient sentence as the Prisoner seems to be in his old age and may not have too many years to spend on this earth. Considering the Mitigating factors and Aggravating Factors we submit that an appropriate sentence would be 4 to 6 years in line with the Case of The State v Standley Konda.
7.	We ask that this Honourable Court use its discretion to deduct time spent in pre trial custody and further consider suspending the remaining sentence partially or wholly.

Other considerations

8.	In relation to the submissions for the prisoner, I note that in the matter of 
The State vs Iran Gaira (supra), the offender pleaded guilty.

9.	It is important to remember that the sentence to be imposed depends on the facts of the case as held in Simbe v the State [1994] PNGLR 38, including an aggravating and mitigating factors as well as any extenuating circumstances.  In this matter, I consider the following are relevant factors.

Aggravating factors

a)	the victim was an innocent child and aged 5 years old at the time of the offence;
  
b)	the prisoner is currently 52 years, whereby there was a large difference in age between the prisoner and the victim at the time of the offence; 

c)	there was a relationship of trust, authority and dependency between the prisoner and the victim, including that the victim would often go to the prisoner’s house to receive food, the victim often played with the prisoner’s young son and the victim knew the prisoner well and called him ‘bubu’ (or grandfather);  

d)	although it is not contended by the State that the victim suffered serious long-lasting physical injuries, the victim suffered significant pain and redness around her genital area for which she was treated as shown in her clinical notes that were admitted into evidence; and

e)	the victim was traumatised by the incident and the emotional impact of the prisoner’s actions may well impact her for the rest of her life;

Mitigating factors

a)	the prisoner acted alone; 

b)	the prisoner used his fingers (digital penetration) as opposed to using his penis;

c)	no weapon was used nor was aggravated violence used; and

d)	the prisoner is a first time offender and has no prior convictions.

10.	 In his allocutus, the prisoner said he was concerned for the welfare of his children and he was concerned about who would look after them, including for the necessities of their lives.  In this regard, the Court needs to have regard to the effect that a term of imprisonment will have on the prisoner’s children.  I also note from the Pre-Sentence Report that the prisoner’s children range in age from 23 years to 8 years, so they are all quite young.

11.	 I note from the Pre-Sentence Report that the prisoner continues to deny the finding of guilt.  Moreso, in the Pre-Sentence Report and his allocutus, he did not offer any apology to the victim or her family or express any remorse for his actions.  

12.	  I have taken into account the above-mentioned cases on sentence which were referred to by the State and the accused in their submissions.  Furthermore, I consider the sentence to be imposed on the prisoner must be at the upper end of the sentencing range, given his abhorrent and disgusting actions in this matter and the breach of trust he committed on the victim.  I also consider that an appropriate sentence is necessary to deter others from the same or similar conduct.  As part of the sentence to be imposed, I am conscious that the prisoner is 52 years of age, and that any long sentence may have a bearing on any prospect of release before he is too old.

13.	 Accordingly, I make the following orders:

1.	The prisoner is sentenced to 15 years imprisonment.
2.	1 year and 9 months are deducted for time spent in custody.
3.	The prisoner is to serve the remaining term of 13 years and 3 months in custody.
4.	No part of the sentence is suspended.

Lawyer for the State: Public Prosecutor
Lawyer for the accused: Public Solicitor