N11151

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR No. 1348, 1349 & 1350 OF 2022

THE STATE

V

KAMBE TALIBE

WAIGANI: MIVIRI J
7 & 10  FEBRUARY 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – Sexual penetration Minor 12 years old – 8 years old victim – Section 229B (1) (a) (4) CCA – Digital Penetration – Injuries to Vagina – Penial Penetration – Biological Father – No Dispute Complainant Daughter’s Vagina Penetrated Sexually – Serious Breach of Trust Father & Daughter – Trial – Daughter made to relive in open Court – Guilty of Count 1 Digital Penetration Section 229B (1)(a)(4) CCA – Guilty of penial Penetration Count 2 Section 229A (1)(2) CCA – Prevalent Offence – Strong Deterrent & punitive Sentence Warranted .
 
Facts
Accused inserted his finger into the complainant’s vagina and injured her. She is his 8-year-old biological daughter. Then he penetrated her vagina with his penis and had sexual intercourse with her. The injuries to the vagina drew the mother who enquired and found out.

Held
Sexual penetration with finger.
Penial penetration of vagina.
8-year-old biological daughter of Accused.
No other male person except Prisoner.
Serious abuse of Father Daughter trust.
Prevalent Offence.
Guilty of Count 1 and 2 on the Indictment.
Strong Deterrent & Punitive Sentence.

Cases cited 
Acting Public Prosecutor v Haha [1981] PNGLR 205
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85
Golu v The State [1979] PNGLR 653
Simbe v The State [1994] PNGLR 38
Kalabus v The State [1988-89] PNGLR 193
Sabiu v State [2007] PGSC 24
Kumbamong v State [2008] PGSC 51
Koribiseni v State [2022] PGSC 90
Paul v State [2017] PGSC 33
Wartovo v State [2019] PGSC 11
State v Fego [2024] PGNC 14
State v Pitpaia [2024] PGNC 140
Public Prosecutor v Hale [1998] PGSC 26
State v Tumun [2024] PGNC 287
State v Wii (No 1) [2024] PGNC 241

Counsel:
E. Kariko & S. Patatie for the State
K. Watakapura & F. Bomal for the defendant

SENTENCE
 
1.	MIVIRI J: This is the sentence after trial upon the biological father of Dorin Jimmy who is 8 years old who was digitally penetrated and penial penetration. 

2.	He was convicted of count one on the indictment under section 229B (1) (a) and (4) of Criminal Code which is in the following terms: 
 “(1) A person who, for sexual purposes –
(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or
(b) compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person’s own body,
is guilty of a crime.
Penalty: Subject to Subsection (4) and (5), imprisonment for a term not exceeding seven years.
(2) For the purposes of this section, “sexual parts” including the genital are, groin, buttocks or breast of a person.
(3) For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.
(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime and is liable to imprisonment for a term not exceeding 12 years.
(5) 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 to imprisonment for a term not exceeding 12 years.”
3.	Further he was convicted of the second count on the indictment preferred of sexual Penetration of a Child under section 229A which read:

(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.	He is liable to be sentenced on the first conviction to maximum imprisonment of 12 years because at that time she was an 8-year-old child, under 12 years old. Reading that law, it would draw accordingly. He is the biological father of the child, there is serious breach of trust authority and dependency drawing 12 years maximum imprisonment. 

5.	In the second conviction he is liable to be imprisoned to a maximum of life imprisonment because she is 8 years old under 12 years old and he is her biological father, therefore a breach of trust, authority and dependency drawing. Further and relevant here is whether the sentences would be concurrent or cumulative. There being two convictions of two different offences arising out of the same set of facts. Each must draw sentence prescribed accordingly. I take due account of the law relating in this regard: Acting Public Prosecutor v Haha [1981] PNGLR 205 the principles of cumulative and concurrent sentences illuminated in this way:

“Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative. When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total,” Kerua and Kerua, Public Prosecutor v [1985] PGSC 8; [1985] PNGLR 85 (1 April 1985). 

Here it is clear the offences arise from the same set of facts. Both are not distinct separated by time and date. I will therefore treat for the purposes of sentencing as concurrently given. Effectively what sentence is passed for the digital penetration will be served together with that of penial penetration.

6.	Here in each conviction the maximum sentence will be passed where both offences are determined as being the worst case: Golu v The State  [1979] PNGLR 653. I do not consider that this is the worst case of digital penetration and penial penetration. Therefore, a determinate sentence will be passed upon the prisoner. I hold that both are very serious offences for the reasons set out in the Judgement on verdict. His sentence will ultimately be the consideration of the peculiarity depicted: Simbe v The State [1994] PNGLR 38. I am mindful that this are very prevalent offences and therefore stern deterrent punitive sentences are for both concurrently. It is in my view analogous to rape of a minor. Here this is born out by the behaviour of the Prisoner after discovery by the mother. He got a bush knife and threatened the complainant together with the mother. That level of violence will follow in the footsteps against crimes of violence set for instance by Kalabus v The State [1988-89] PNGLR 193, who was imprisoned to the maximum term of life imprisonment, because of the rape of a 9-year-old girl who sustained serious injuries to her vagina and died as a direct consequence. 

7.	This is an 8-year-old girl digital and penial penetrated by her father. She is a young tender aged child of 8 years old at the time of the offence. He is almost 50 years old man. This is a very serious aggravating feature which will be reflected in the sentence. Here I take due account of what was overt where the Supreme Court confirmed 17 years imprisonment and dismissed the appeal in Sabiu v State [2007] PGSC 24. That was anal intercourse of a six (6) year old child by his maternal uncle who took him into the bush and committed the offence upon him because part of the bride price money was not given to him. Here the age gap is of an 8-year-old at the hands of her 50-year-old father. He is a first-time offender who has strenuously denied even with his brother and a community leader in the presentence report. Clearly not in harmony with the independent medical report.

8.	Coupled with the fact illuminated by the victim impact statement which show that the victim feels unsafe with the prisoner. He maybe the father but he is no longer trusted to be in the presence of the victim. It is a very strong factor that goes against the presentence report with the Medical  evidence exhibit P3 affidavit of the Health Extension Officer Solange Haputo employed by the Port Moresby General Hospital at the Family Support Centre who swore an affidavit dated the 07th March 2022, attached exhibit P3(a) her statement dated the 07th March 2022 examination of the complainant 8 years old on that day 07th March 2022, and the complaint that she made of on being abused by finger penetration, and penial penetration by a known aggressor. Exhibit 3(b) prepared by this Health Extension Officer who examined the genital of the complainant and made the following: “hymen all discontinued with vaginal opening too dilated for her age. Fresh tear at 5-1 0’clock position of the labia minora of the vagina and at 8 -11 0’ clock position of the labia minora of the vagina.” 

9.	This is very independent verification of the level of violence that was exerted by this prisoner upon the complainant. And it is relevant to consider the photographs that have been set out of the scene of the crime, the home by Exhibit P1, Statement of Gerald Saiguyau a constable of police attached with crime scene section of the National Forensic Science Centre Gordons with an 8 years’ experience, he attended the alleged scene of the crime and took a number of photographs of the scene. That is clear evidence of the level of trust that was within that family abused by the father prisoner head of that family upon the daughter, 8 years old. A serious aggravating feature if viewed alongside the presentence report ordered dated 18th November 2024 does not favour outweighing. Particularly given that the home where the family dwells must be safe and secure. Crimes against Children who are venerable must be stopped immediately with stiff and stern sentences. It will not take any mitigating form where the prisoner has become a Christian, SDA. It would be more in his favour if there was admission to the offence, not a trial. She was made to live out the reality of that offence committed upon her by her father before strangers in open court. I have perused the presentence report which does not have any extenuating circumstances in favour of the prisoner. And in this regard have considered the submissions both by defence and prosecution. What comes out bold is that this is an aggravated offence that has no place for a non-custodial sentence drawing the balance between the two. When a grown man, let alone a biological father behaves in this manner, against the seed that he implanted to bring into this world a child of that union, he bears responsibility to ensure her, or his life is maintained to the level of proper morality between parent and child. She is not a utensil at the pleasure of the parent. No one has the duty by the Constitution to protect all and the Court will fail if it leans low in the case depicted.

10.	The facts depict a very serious offence. And which will not be dictated or tied down by tariff or range but dependent on the facts and circumstances:  Kumbamong v State [2008] PGSC 51. Being proportionate is not by mathematical formular but due consideration in law including consideration of the principles of totality to arrive: Koribiseni v State [2022] PGSC 90. The Supreme Court upheld the appeal on sentence and overturned the initial warrants issued pursuant because of excessive exercise of discretion against the sexual penetration and touching convictions. 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. 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. The convictions here warrant like treatment.

11.	I do not consider that these facts would draw what was in State v Fego [2024] PGNC 14, where 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. It would be a lot less serious compared for both offences together. In the case of sexual touching, it would not go down 7 years IHL part suspended on a guilty plea to sexual touching Section 229B) (1)(a) CCA in State v Pitpaia [2024] PGNC 140. A trial was conducted and therefore the sentence will reflect. I consider that a sentence of 10 years is appropriate here given all the aggravating features set out. He is a first-time offender aged 50 years old at time of sentence originally from Tingite village, Komo Hulia District, Hela Province. He has some employment experience. He expresses no remorse in the presentence report and does not accept the verdict. He maintains his innocence. There is no reconciliation between his wife and the complainant up to the date of this sentence. There is no material before me to warrant suspension or part suspension of the sentence: Public Prosecutor v Hale [1998] PGSC 26. In fact, a custodial term is appropriate here given the facts set out above.

12.	Because the consequence of sexual misdemeanours against children and under aged minors stress protection of the child: State v Tumun [2024] PGNC 287, sexual penetration penial section 229A by 26-year-old man upon a young girl of 10 years, sustaining 12 years. The actions here is the same but the charge is sexual touching. He is the natural father, not a stranger. The use of bush knife sexual penetration under the same section with injuries to a 11-year-old girl committed by a 17-year-old prisoner saw 15 years imposed in State v Wii (No 1) [2024] PGNC 241. What comes out is the large age gap which will be considered aggravating in the sentence passed. And here it is no different. And the determination to commit the offence and to avoid detection by the law.

13.	It is well to set out the evidence of the mother to show what the father husband did to the child. I told the father; child woke up and called your name. Father got a bush knife and said who did this to you. And She said, Daddy I did not call your name. Next morning on the pretext of taking her to school, I asked her, and she said it was Daddy who did this to me. And I was afraid of Daddy and did not tell you. I took her to Tokarara Clinic and the sister in charge of the Clinic checked her, and said they used finger to her vagina. She referred us to see Susu Mamas which paper was torn up by the accused and burnt in a fire. Stating that I was trying to spoil his and daughter’s name. Daughter complainant went and overnighted for three nights away from home because she feared the father. And this continued when there was a house Karai for a man from Tari. We slept there for three weeks and Friday night it was the last night, and Papa came visit us and told us to go back to the house. We returned to the house, but I was scared thinking about the complainant and stayed awake. Daddy also was awake. He said it was 4.00am I was not sleeping well at house Karai so dozed off despite trying to keep myself awake.  And that is when the father got up and did what he did to the complainant. I slept with complainant on one side and Marilyn Jalime on the other. I was in the middle of both as we slept. We went to Gerehu hospital, but they said go to Waigani Police Station. It was Saturday morning went there but told to come Monday where I was told to see Family Support at 3 mile which I did. Later came to haus Karai, Kambe was there.  He knew already as I had informed his family. He took Dorin onto the road I told him to leave her, or I will get the Kerema Boys to hit you. Dorin was released and we went back home. On Saturday morning the clinic was closed. Her skirt was torn on the side. I pulled her up and checked and saw sperm on her body, the vagina pispis area.

14.	The aggregate I ask is what would be a proportionate sentence to befit both offences convicted fair just to all.	

15.	I determine that for the crime that he prisoner Kambe Talibe of Tingite village Komo, Hela Province between the 1st of March 2022 and the 31st of March 2022 at Dorido Street June Valley National Capital District, for sexual purposes touched with his finger the vagina of Dorin Jimmy his daughter a child under the age of 16 years, she was 8 years old. I sentence him pursuant to section 229B (1) (a) and (4) of criminal code of the Criminal Code to 10 years imprisonment for the crime. 

16.	And for the crime that he Prisoner Kambe Talibe of Tingite village Komo, Hela Province between the 1st of March 2022 and the 31st of March 2022 at Dorido Street June Valley National Capital District, pinched her vagina with his finger. And then penetrated his penis into her vagina and had sexual intercourse with her. She was 8 years old and therefore under 12 years old contravening section 229A (1)(2) and (3) of the Criminal Code. I sentence him to 25 years imprisonment in hard labour. He will serve that sentence concurrently with the 10 years imprisonment for the crime of sexual touching. Effectively he is sentenced to 25 years IHL. Time in custody is deducted forthwith. He will serve the balance in jail forthwith. 

Orders Accordingly
__________________________________________________________________
 Lawyer for the State: Public Prosecutor
Lawyer for the defendant: Public Solicitor