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State v Moses [2025] PGNC 470; N11609 (7 November 2025)

N11609

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 1653 OF 2024

THE STATE

V

JOHN KOMA MOSES

WAIGANI: MIVIRI J
23 OCTOBER, 05, 7 NOVEMBER 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – S229D (1) CCA Plea One Count Of Persistent Sexual Abuse Offences Against Division IV.2A of the Criminal Code – Four Individual & Separate Acts over a Period of Full Calendar Month – Sexual Touching Section 229B (1)(a)(4) x four Separate Acts Over a Period of a Month – Complainant 10 year old girl – Prisoner 32 year old – Medical Report Laceration – pus Discharge – Hymen Absent – Caught in the Act by the Mother – Determined Persistent Offender – No Fear of the Rule of Law – Strong Deterrent & Punitive Sentence.

CRIMINAL LAW – PRACTICE AND PROCEDURE – S229B (1) (b) & (4) CCA sexual Touching of Minor Under 12 years – Well Planned Offences – Undetected Injuries to Complainant – Subdued by Threats of Accused – Guilty Plea 1 Count Persistent Sexual Abuse Section 229D (1) (6) CCA – Expression of Remorse – First Time Offender – Protection of the Home – Prevalent Offence – Large Age Gap – Repeated Offences – Strong Deterrent & Punitive Sentence.

Facts
Accused sexually touched with his penis the vagina and anus of Ten (10) year complainant over a whole month. There was a total of four such incidents committed without detection. The last was seen by the mother of the complainant when the accused was in the process of committing the offence.

Held
Guilty plea to persistent sexual abuse.
10-year-old girl.
Serious injuries to the vagina and surrounding.
Pus discharge
Laceration
Protection of the home.
Protection of the young
32-year-old man.
Strong Deterrent & Punitive Sentence.
13 years IHL minus remand.

Cases cited
Avia Aihi v The State (No 3) [1982] PNGLR 92
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85
Mase and John v The State [1991] PNGLR 88
Golu v The State [1979] PNGLR 653
State v Robin [2021] PGNC 280; N9116
State v Hanoni [2018] PGNC 614 N9236
Kumbamong v State [2008] PGSC 51; SC1017
Koribiseni v State [2022] PGSC 90; SC2296
Paul v State [2017] PGSC 33; SC1630
Wartovo v State [2019] PGSC 11; SC1775
Tardrew, Public Prosecutor v [1986] PNGLR 91
Gimble v The State [1988-89] PNGLR 271
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
Sabiu v State [2007] PGSC 24; SC866

Counsel
S. Patatie & E. Kave for the State
F. Bomal for the defendant

SENTENCE

1. MIVIRI J: John Koma Moses of Pormil village, Gumine District, Simbu Province now appears to receive his sentence of pleading guilty to persistent sexual abuse contrary to Section 229D (1) of the Criminal Code Act.
   
2. As denoted by the word persistent, it is an offence that accrues, or collects, or balances upwards as opposed to downwards. It builds up its chain and tentacles against the offender. There is a culmination, or accrediting, compiling, aggregation of the offences. Here there are several instances of the offence under section 229B (1)(a) and (4) that the offender has committed over that period in the month of May 2024. He did not fear discovery because the offences were committed within the confines of the house of the complainant where she lived with her mother and other siblings. He was determined and focused on the commission of the offences each time he came around there. It was never in his mind that he would be discovered and caught. This is the attitude that is sickening of this offence. He is undeterred that the offence is being committed in broad day light accessible area where the mother of the complainant would be with the other siblings. He was determined to foster and thrive the evil at all costs. This determination has no place to be encouraged. And this Court will impose punitive and deterring sentences against like offenders as of the prisoner here.
   
3. His treatment of the complainant has left her with a lingering tormenting effect provided by the victim impact statement of the 30^th October 2025 filed 31^st October 2025 that she has made fulfilling law called. She is now (11) eleven years old but has grown with that bad thing that he did to me. “When I see him come around to the house I knew that he will do that bad thing to me. And after doing that he would threaten me that he will hit me. And that I should not report the matter to my parents. After he touched my pispis (vagina) with his penis and other times his penis to my anus I feel ashamed. I feel that what he did to me is not right. The last time he did bad thing to me was when my mother walked in and saw us. I felt so ashamed standing naked in front of my mother. I felt so embarrassed and started crying. My neighbours came learned of the fact and hit John. More people came to know about it. I do not like to talk about what John did to me. My friends at home know.
   
4. I do not like to talk about what John did to me, my friends at home know and when they talk about it, I get quite, they tease me about it, I do not like hearing people discussing about this shameful thing. When they tease me I feel embarrassed and I do not play with them, I keep to myself.
   
5. I go to school at St Michael at Hanuabada, its far from where I live, no one in my school, not even my teachers knew about the incident, I feel safe there.
   
6. I am still afraid of John, I do not want to see him, what he did to me, seeing those places at home where he did those things to me is a bad remainder. I want him to stay away from me and remain in jail for what he did to me.”
   
7. This is the young girl who must be protected by this Court in the enforcement of Section 229D Persistent Sexual Abuse of a Child. The words of the section make is clear the intentions of parliament given the gravity of the offence. I set this out in full:
   

“(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.
(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.
(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.
(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and
(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.
(5) For an accused to be committed of an offence against this section –

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and
(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.
(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.”

8. The guilty plea of the prisoner confirms in all material particulars the evidence laid and file tendered. His plea is unequivocal I confirm in the perusal of the file sealing the indictment laid which alleged that he between 01^st May 2024 to the 31st May 2024 at Mango Settlement Idubada, National Capital District on two or more occasions engaged in conduct amounting to an offence against Division IV.2A (sexual Offences against Children) of the Criminal Code with Angela Kaupa, the times and conduct being specified in the schedule contrary to section 229D (1) of the Criminal Code.
   
9. The first dates and period were set as Wednesday 15^th May 2024 during the day at Mango Settlement Idubada National Capital District. Where the nature of the conduct alleged was that he John Koma Moses for sexual purposes touched with his penis the vagina of Angela Kaupa a child under the age of 12 year being aged at that time 10 years old contrary to section 229B (1)(a) and (4) of the Criminal Code.
   
10. The second date was on Thursday 16^th May 2024 during the day where the conduct was that John Koma Moses for sexual purposes touched with his penis the anus of Angela Kaupa a child under the age of 12 years being aged at that time 10 years old contrary to section 229B (1)(a) and (4) of the Criminal Code.
    
11. The third date was on Saturday 18^th May 2024 during the day where the conduct was that John Koma Moses for sexual purposes touched with his penis the anus of Angela Kaupa a child under the age of 12 years being aged at that time 10 years old contrary to section 229B (1)(a) and (4) of the Criminal Code.
    
12. The fourth date was on Sunday 19^th May 2024 during the day at Mango Settlement Idubada, National Capital District where the conduct was that John Koma Moses for sexual purposes touched with his hand the anus of Angela Kaupa a child under the age of 12 years being aged at that time 10 years old contrary to section 229B (1)(a) and (4) of the Criminal Code.
    
13. He was arraigned that he John Koma Moses was 32 years old and residing at Mango Settlement, Idubada, National Capital District. He was employed as an ancillary staff of the Port Moresby Technical College. And Angela Kaupa the complainant was 10 years old doing grade three (3) at Saint Michaels Primary School Hanuabada. On Wednesday the 15^th May 2024 she was at home with her siblings and cousin watching on the laptop. The Accused called her down and gave her soccer ball chocolate candy. He told her to give some to her siblings and cousin sister and then return. She did and returned to him. When she did, he removed her trousers unzipped his own trousers told her to bend down and touched her vagina with his penis.
    
14. Further on Thursday 16^th May 2024 during the day the complainant mother Pauline had gone to the Market. Complainant was alone at home with her younger siblings watching cartoons on the laptop in their mothers room. The Accused came into the house and called her to the living room. There he removed the zipper of his trousers took out his penis. Then he removed the complainants’ trousers told her to bend down and he touched her anus with his penis.
    
15. Further on Saturday 18^th May 2024 late in the afternoon as the place was getting dark, the mother of the complainant went to the store to purchase rice for them to cook. And the complainant was with her younger sister under the house playing on the swings. The Accused came and called her. He then removed her skirt, unzipped his trousers, told her to bend down and he sexually touched her anus with his penis
    
16. Further that on the Sunday 19^th May 2024 around 2.00pm Pauline mother of the complainant was doing laundry. She told complainant to go into the house and watch over her siblings. The Accused came and told Pauline that he would measure her window and find off cuts at the school to fix her window. He left then came back with a tape measure and went up to the house. Inside the house he called the complainant to her room where he removed the complainant’s skirt and panties. Then he told her to bend down, and he touched her anus with his hand. Whilst he was doing that Pauline walked in and saw him and screamed for help. The matter was then reported to Police where Accused was arrested and charged with the offences. That when he on the several occasions touched the anus and vagina of the complainant with his hand and penis his actions were unlawful and contravened section 229D (1) of the Criminal Code.
    
17. I determine that touching is not the same as penetration defined by section 229A of the Criminal Code. This section specifically uses the term engaging in sexual penetration. It is significant to clarify as by section 229D (6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.” In each of the dates and the periods set out above, penetration is not specifically alleged. The word used is touched so the maximum penalty due would be 15 years maximum. There is no allegation of penetration in the four acts set out as dates or period and nature of the conduct in the schedule charging the prisoner. So effectively the maximum sentence is 15 years imprisonment. And that is what the prisoner will secure if the determination is that his case falls as the worst offence Avia Aihi v The State (No 3) [1982] PNGLR 92. A determinate term will fall in on his case because it is a very serious offence, and not the worst offence of its kind. The gravity is voiced at the outset by her age, she is 10 years old, and he is 32 years old. That is a difference of 22 years. It is a serious aggravation and scaled up by the injuries that are seen in her vagina. Notably by the medical report dated 20^th May 2024 by Nursing Officer Christine Fuka of the Port Moresby General Hospital, Medical Social Work Department, Family Support Centre. Who states on genital examination, hymen absent, Laceration at 9.0’clock of the vagina, pus discharge noted per vagina, Vagina opens 1cm. This is clear evidence that the sexual touching has culminated in injuries to the vagina. It could be evidence of penetration, how else could the hymen be missing. Here medical evidence does not go to that extent to come to that conclusion, which would effect the sentence. As it is, it is touching not penetration so a maximum of 15 years imprisonment.
    
18. Yes, they are all separate and distinct offences committed time and dates apart. But not charged so the sentence will not go down the path of the law set out in Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85, I cannot treat them as separate offences warranting cumulative sentences upon each of them. Whatever sentence is meted out will be one for the persistent sexual abuse by section 229D, not sexual touching. It need not extend into the totality principles, Mase and John v The State [1991] PNGLR 88. But the sentence will fit the crime committed Golu v The State [1979] PNGLR 653.
    
19. I hold that sentencing discretion is never fettered or dictated in a certain direction or position. Here apart from the victim impact statement of the complainant child. Relevant also is that of the mother, Pauline Kaupa dated 30^th October 2025 filed of the 31^st October 2025. She states that the complainant is her first born daughter. And “when we started building the new house, our current house we noticed that she did not eat well, her skin is very dry and we thought that she had TB and took her to the hospital for check-up, the doctor found nothing.
    
20. When I found out about what John did to Angela, I was very upset, I understood then why she refused to eat, keep to herself and does not mingle around with her peers.
    
21. After John was locked up, I took her to the hospital and the female doctor checked her and said that Angela, her body is not like the young children her age, her body is like female adults. John must have touched her inappropriately for that long..................... I already put John into the hands of the law; I want him to serve his sentence full in prison for what he had done to my first born daughter.”
    
22. Every child has a right to grow up safe sound and happy. They must enjoy life as they grow up. They should not be treated in this way at the whim of men or persons who think that children are sex objects at the pleasure. I consider the submissions by counsel jointly that sentence must be proportionate to the offence. And the track developed in this court is sound that it is between 10 years to 15 years appropriate for the offence. Each Counsel accepts that the facts and circumstances individual will draw out the sentence due and offender. I have been referred to 10 years IHL that was imposed in State v Robin [2021] PGNC 280; N9116. The age gap there was not large comparably. She was 9-year-old. He was 23 year and were neighbours. I have been further referred to State v Hanoni [2018] PGNC 614 N9236, similar offence as the present but of a grandfather who was 41 years difference in his age from the child who was only 6 years old. This court imposed 13 years imprisonment. Where there is a large gap in the age difference, the sentence should rise in accordance. Also, if the offence is a repetition leading sustaining as persistent sexual abuse.
    
23. I am not dictated nor am I tied down by tariff or range but dependent on the facts and circumstances. Any tariff or range will be part of the process and will be considered on the level due to it: Kumbamong v State [2008] PGSC 51; SC1017. 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; SC2296. 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; SC1630. 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.
    
24. This is an offence where the prisoner has taken pains to commit the offence. He carefully planned the offence so that the mother was not in the house at the times that he committed the sexual touching leading to this offence of persistent sexual abuse. His guilty plea and the presentence report now before the Court will be considered. That report is now before me in the determination of his sentence. A first offender originally from Pormil village, Gumine District in Simbu Province he was employed as ancillary staff of the Port Moresby Technical College. Aged 32 years at the time of the offence, he is now 35 years old. He expressed genuine remorse when he stated that in the eyes of the God, he was sorry. That whatever was done on the earth was not hidden from God. And we would reap what we sowed. He respected the court as a representation of God. He was sorry to the Court. Coupled with his guilty plea it was genuine remorse for the crime that he had committed.
    
25. Against the word of the gospel known all along to him he chose the path that was carefully orchestrated so that it was his pleasure above all else. I do not find anything in the presentence report before me to deviate down the path laid out by Tardrew, Public Prosecutor v [1986] PNGLR 91 for suspension of sentence. I would fall into error if I chose that path given the gravity of the offence. It was such that this young girl does not feel protected in her own home. Here I am mindful of Gimble v The State [1988-89] PNGLR 271, where the supreme court clearly affirmed that the dwelling of a person must be protected in the sentence passed in armed robbery cases. It is a higher sentence comparably from a street or vehicle robbery. In the same way an offence such as here where the house is threatened by the actions of the prisoner in the commission of the offence, such that the child of that house does not feel safe within. This court has a duty to protect and be consistent in line with the Supreme Court and the law.
    
26. Yes, he has pleaded guilty is a first offender aged 34 years old. But where does that leave the life of the 10-year-old child here. This is an adult grown man who systematically puts into train mechanically a haven within the dwelling house so that he takes advantage of the vulnerability of young innocent tender aged children here, 10 years old. It will be abhorrent, repulsive and should not be tolerated even in the face of a guilty plea. 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. It has come before in State v Fego [2024] PGNC 14; N10663, 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.
    
27. Here therefore sentence will be increased with the aggravating features which in my view include the ages of the child victims here: State v Peter Lare [2004] PGNC 218; N2557 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 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 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 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.
    
28. I am fortified by all set out above that the sentence due the prisoner is 13 years IHL for the crime of persistent sexual abuse contrary to section 229D (1) of the Code. And I so impose that upon the prisoner. I order that time on remand will be deducted from that 13 years IHL. He will serve the balance in jail forthwith.
    

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