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State v David [2025] PGNC 392; N11526 (16 October 2025)

N11526

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 709 OF 2024

THE STATE

v

LINSEN DAVID

WABAG: ELLIS J
15, 16 OCTOBER 2025

CRIMINAL LAW – SENTENCE – sexual touching – victim aged 15 – offender aged 23 – offender cousin of victim – injuries to vagina including to the hymen – indictment presented for a lesser charge – need for deterrence - sentence of 7 years

Brief facts

The offender and the victim were travelling to a village together. The victim’s statement said the offender raped her. When interviewed, the offender said the victim was lying. The offender was committed on a charge of sexual penetration of a child (s 229A). He entered a plea of guilty to a charge of touching for sexual purposes (s 229B). The indictment alleged “rubbing his penis against her vagina”. The medical report said a genital examination revealed damage to the hymen.

Held

(1) With an unresolved conflict in the evidence, the sentence had to be based on the wording in the indictment plus the uncontradicted medical evidence.
(2) As the offender and victim were cousins, the maximum penalty was 12 years.
(3) Comparable sentences, involving contact with the victim’s vagina, plus the need for deterrence warranted a sentence of imprisonment for 7 years.

Cases cited
Apo v The State [1988] PNGLR 182
Golu v The State [1979] PNGLR 653
Kovi v The State [2005] PGSC 34; SC789
Lawrence v The State [1994] PNGLR 38
Public Prosecutor v Tardrew [1986] PNGLR 91
Review of the Constitution, Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855
Sakarowa Koe v The State (2004) SC739
The State v Jack Gola and Mopana Aure [1990] PNGLR 206
State v Kayas [2016] PGNC 422; N6913
State v Kosono [2016] PGNC 423; N6915
The State v Albert Kataka (2016) N6297
The State v Attiock Ishmel (2001) N2294
The State v Hezekiah Maiyu [2024] PGNC 228; N10888
The State v Joshua Lin (2019) N7818
The State v Tala John (2012) N4630

Counsel
J. Kesan for the State
L. Toke for the defendant

SENTENCE

1. ELLIS J: Linsen David (the offender), of Sakalias village in Wabag within Enga Province, pleaded guilty to a charge that on 1 October 2023 at Hil Valley village in Wapenamanda he touched, for sexual purposes, a child under the age of 16 years, being a girl then aged 15, by rubbing his penis on her vagina. That charge was based on subsections (1)(a) and (5) of s 229B of the Criminal Code Act 1974 (the CCA).
   
2. The wording of s 229B, so far as is presently relevant, is set out in full below:
   • (1) A person who, for sexual purposes –
     

(a) touches, with nay part of his or her body, the sexual parts of a child under the age of 16 years;

...

is guilty of a crime.

Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.
...

(5) If, at the time of the offence, there is 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.

Evidence

3. The state tendered the Police brief (pp 20-51) which was admitted without objection as Exhibit A. No evidence was tendered for the offender.
   

Allocutus

4. After a conviction was recorded, the offender was given an opportunity to address the Court. He said:

I did a wrong thing because I was under the influence of liquor. I did the wrong thing in the eyes of God and I say sorry. I also violated the Constitution of this country and I say sorry. The victim is my cousin, I say sorry to her and her relatives. I also say sorry to my community for the wrong that I have done. This is my first time to commit an offence like this. I have already spent more than two years in prison. And I am asking if this Court can show me mercy and allowing to spend time outside and pay compensation.

Submissions for the offender

5. It was noted that the victim is the cousin of the offender and that the maximum penalty for this offence is imprisonment for 12 years. The offender was said to be (1) aged 23, (2) the third of four children born to parents who live in Laiagam, (3) a subsistence farmer who never attended school, (4) married but with no children, and (5) a member of the Assemblies of God church.
   
6. At the time of the offence, the offender was said to be living with the victim’s relatives and was travelling to Hil Valley village to pick up his wife. They were said to be residents of Sakalias village. It was conceded that this is a serious offence and that child abuse is escalating. However, the usual submission was made that this is not the worst case and that each case must be treated on its own facts.
   
7. Aggravating factors were said to be the sexual touching in a situation where there was a relationship of trust and dependency and that this was a prevalent offence. Mitigating factors were said to be the plea of guilty and the expressions of remorse. It was noted that the offender had no prior convictions and said he was under the influence of alcohol at the time of the offence.
   
8. The appropriate range for sentencing was said to be between 3 and 7 years. A sentence of 4 years was suggested, less time already served.
   
9. It was said that the offender has been in custody for 2 years and 1 month. However, that cannot correct as the offence occurred on 1 October 2023, and the hearing was on 15 October 2025. The correct period is 2 years and 2 weeks.
   
10. Whether to suspend any portion of the sentence remaining to be served was left to the discretion of the Court.
    
11. The four cases to which reference was made were as follows:

(1) The State v Tala John (2012) N4630 (John), in which it was observed that the depositions disclosed evidence of sexual penetration of the victim’s vagina with fingers and penis and that there were serious injuries to the vagina, including tearing of the hymen. A sentence of 6 years was imposed in that case, and it was noted that an indictment was presented for a lesser charge.

(2) The State v Albert Kataka (2016) N6297 (Kataka) was a case where the sentence was 4 years. However, as the maximum penalty in that case was 7 years, it provides little assistance in this case.

(3) The State v Joshua Lin (2019) N7818 (Lin) was another case where the offender and victim were cousins, and where the offender claimed he was affected by alcohol at the time of the offence. That was a case where the offender lifted the victim’s blouse and kissed her breasts, then “tried to have sex with her but rain fell and interfered with his attempt”. The sentence of 4 years was for conduct far less serious than has been established in this case. It is noted that the influence of alcohol was not accepted as either an excuse or a reasonable explanation.

(4) The State v Hezekiah Maiyu (2024) N10888 (Maiyu) was a case, decided last year, in which the judge held: “The sentencing trend has not changed much in 20 years, and there have been numerous warnings, thus the need to increase in sentencing”. A sentence of 4 years was imposed for conduct that involved an uncle putting the hands of the victim, aged 12, onto his penis and him stroking her breasts. Again, that case involves less serious conduct when compared with this case.

Submissions for the State

12. It was noted this offence occurred when the offender and victim met while they were both travelling from Wabag to Hil Valley village. The aggravating factor was said to be the breach of trust by reason of the offender being the cousin brother of the victim, with the result that the maximum penalty was imprisonment for 12 years, not 7 years.
    
13. In relation to the evidence, the Court was invited to consider the medical report. Reference was made to Maiyu and the two cases summarised below. It was suggested that a term of imprisonment of 7 years should be imposed in this case.
    

(1) State v Kayas [2016] PGNC 422; N6913 (Kayas) was a case where an offender aged 17 placed his penis on the vagina of a victim aged 6 and was sentenced to a term of imprisonment of 7 years.

(2) State v Kosono [2016] PGNC 423; N6915 (Kosono) also resulted in a sentence of 7 years. The offender, aged 48, placed his fingers on the vagina of the victim, then aged 9.

Findings of fact

14. The uncontested evidence placed before the Court justifies the following findings of fact:
    

(1) On Sunday 1 October 2023 the offender and the victim met while they were travelling to Hil Valley village.

(2) At that time, was victim was aged 15, the offender was aged 23, and they were cousins.

(3) The victim provided a statement to the Police in which she alleged the offender raped her on the way back to that village.

(4) When interviewed by the Police on 23 October 2023, the offender claimed the victim was lying.

(5) A medical report, prepared following an examination on 2 October 2023, the day after the offence, included the following paragraph:

Genital examination

On genital examination, I observed the following:

1. Fresh blood stain in the vulva
2. Bruises and small tears around the vaginal area

100. The hymen was traumatised and discontinued all around and the wounds were bleeding on touch.
     

Consideration

15. What was said in John (at [26]) is worth repeating:
    

The Public Prosecutor in the exercise of his unfettered discretion derived from sections 176 and 177 of the Constitution, section 4(1) of the Public Prosecutor (Office and Functions) Act Ch. 338 and section 524, 525 and 526 of the [CCA] either by himself or through a State Prosecutor has the power to lay an indictment in the National Court on the charge or charges he prefers to pursue against an offender either after the offender is committed to stand trial in the National Court through the committal process or under his power to lay an ex officio indictment pursuant to section 526 of the [CCA]. His power is an absolute one: The State v Jack Gola and Mopana Aure [1990] PNGLR 206, Review of the Constitution, Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC 855. The Court has no power to direct or interfere with the functions of the Public Prosecutor by virtue of his independence under the Constitution.

16. In this case, since the Police brief contains contradictory assertions by the victim and the offender, the Court must base its sentencing decision on (1) the wording set out in the indictment, as that was admitted by the accused when he entered a plea of guilty, and (2) the medical evidence in the Police brief that was neither contradicted in that Police brief nor challenged during the sentence hearing.
    
17. The Court is left with the offender rubbing his penis on the vagina of the victim and injuries to the victim’s vagina, including to the hymen.
    
18. As is commonly the case, the Court was reminded that the maximum penalty should only be imposed in the worst case (Golu v The State [1979] PNGLR 653) and that each case should be determined based on its own facts (Lawrence v The State [1994] PNGLR 38).
    
19. The facts of this case are at the serious end of the range. Aggravating factors are the relationship between the offender and the victim and the nature and extent of the injuries to the victim, as set out in the medical report (Exhibit A at the page numbered 36), a portion of which was quoted earlier (see [12] above at (5)).
    
20. Mitigating factors are, first, the plea of guilty. That plea came on the morning of the day when the offender was due to face trial for a more serious offence. It needs to be noted that, while the plea of guilty was late, it removed the need for the victim to give evidence. Secondly, it was said that the offender expressed remorse. While the offender did express remorse, the words he used are in the form regularly used by offenders who have had the benefit of advice from a lawyer before the allocutus is administered, which raises the question of whether the expressions of remorse are those of the offender or those which the offender was advised to say.
    
21. The offender asserted, during his allocutus (but not during his record of interview) that he was “under the influence of liquor”, but that is not a matter relevant to mitigation of sentence: Apo v The State [1988] PNGLR 182.
    
22. The offender said he wished to pay compensation. That is not relevant to sentencing because (1) the Court cannot speculate as to what compensation might be paid in future, there being no indication of what compensation was proposed, and (2) compensation cannot be used to “buy” a lesser sentence.
    
23. In Kovi v The State [2005] PGSC 34; SC789 the Supreme Court considered the question of what role compensation should play in relation to sentencing. The position may be summarised in the following propositions:

(1) Compensation is not an alternative to the application of the criminal law.
(2) Local customs may make compensation relevant for sentencing purposes.
(3) The form and amount of compensation must be considered.

24. The following paragraph from the judgment in John (at [27]) is also applicable in this case:

In the present case, it appears that the serious charges of sexual penetration of a child and rape have been abandoned for the lesser charge of sexual touching most likely as the result of plea bargaining. I will bear that in mind when considering an appropriate sentence for the prisoner: The State v Attiock Ishmel (2001) N2294, Sakarowa Koe v The State (2004) SC739.

25. While an offender must be sentenced in relation to the offence charged in the indictment, to impose a sentence towards the low end of the range in circumstances where the evidence suggests the offender offered to plead guilty to a lesser charge would be to give the offender a double discount.
    
26. The need for deterrence is fortified by the remarks made in Maiyu last year, quoted above. However, this case involved conduct far more serious than that in Maiyu, in which a sentence of 4 years was imposed, and factually resembles the 2012 case of John, and the 2016 cases of Kayas and Kosono, in which sentences of 6, 7 and 7 years respectively were imposed.
    
27. Each of those three cases involved contact with the victim’s vagina. Combining those decisions with what was said in John (quoted above), a sentence of less than imprisonment for 7 years cannot be justified, given the clear need for a message of general deterrence. It is noted that, for the State, a sentence of 7 years was suggested, and the defence suggested a range of 3 and 7 years.
    

Sentence

28. For those reasons, the Court considers that imprisonment with hard labour for 7 years is appropriate in this case. Deducting 2 years and 2 weeks for the time already spent in custody gives a period remaining to be served of 4 years, 11 months and 2 weeks.
    
29. While s 19(6) of the CCA provides the power to suspend part of a sentence of imprisonment, having regard to the principles in Public Prosecutor v Tardrew [1986] PNGLR 91, and the nature of the conduct upon which the subject charge was based, the Court does not consider any portion of the sentence should be suspended. To do so would be to disrespect the victim.
    

Sentenced accordingly.
__________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the defendant: Public Solicitor