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State v Unde [1999] PNGLR 24 (3 March 1999)

[1999] PNGLR 24

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

SIARO UNDE

WAIGANI: AKURAM J
2, 3 March 1999

Facts

The accused was charged under s 210(1)(a) of the Criminal Code Act Ch 262 for unlawful carnal knowledge against the order of nature of a seven year old girl.

The accused is a 60-year-old man. He pleaded not guilty.

Held

1. Although the victim child is eight years old (at time of trial), I have assessed the victim child on whether or not she is capable of understanding the significance of giving evidence in court and the consequences of telling lies to court, and I am satisfied that the victim child is capable of giving evidence. Victim child allowed giving evidence on affirmation.
   
2. On the evidence, found the accused guilty as charged and convicted.
   
3. Any offences of sexual nature committed on children must be dealt with severely in order to protect not only the community but the small children, especially young girls of tender years as in the present case. The prisoner is an old man and the victim was only seven years old. He breached the trust the victim child and her family placed on him. A severe custodial sentence is therefore warranted for purposes of deterrence and to prevent the recurrence of this type of offence and hence to offer some protection to young children, particularly those of tender years: The Secretary for Law v Kwanga [1974] PNGLR 135; The Secretary for Law v Kabua Dewake [1975] PNGLR 100 applied.
   
4. Sentenced to the maximum penalty of seven years in hard labour without deducting time spent in custody from the seven years sentence.
   

Papua New Guinea cases cited

Aubuku v The State [1987] PNGLR 267.

Goli Golu v State [1979] PNGLR 653.

The Secretary for Law v Kabua Dewake [1975] PNGLR 100.

The Secretary for Law v Kwauga [1974] PNGLR 135.

The State v Raphael Kuengu [1993] PNGLR 124.

Counsel

Mr Sambua with Ms Suwae for State.
Mr Kari for accused.

3 March 1999

AKURAM J. This is a trial of an accused alleged to have carnally known one Rosena Gomuna, against the order of nature, contrary to s 210(1)(a) of the Criminal Code Act.

The State alleged that on Tuesday, the 11th of August 1998 at Kaugere Settlement, the victim, Rosena Yomuna, a 7 years old at time of offence, now 8 years was staying at her family house. The accused was also staying with the victim in the same house.

The versions of what actually took place in the house differs, however, State alleged that victim went to her bed, accused followed her, and took her shorts down and had sexual intercourse with her through her anus.

The Sate called the victim as the only witness and tendered the Record of Interview and the Medical Report dated 13/8/98 and 1/9/98 respectively.

Prior to evidence being given, I assessed the child/victim on whether she is capable of understanding the importance of giving evidence in Court and the consequences of telling lies to Court by asking her the following questions:

17. Your Name?
1. Rosena.
   
17. How old are you?
1. 7 years.
   
17. How do you know you are 7 years old?
1. My father told me.
   
17. Can you stand up?
1. (Stood up near bar table and is about 1 meter tall.)
   
17. You have not gone to school yet?
1. I have not gone to school yet.
   
17. Do you know what is a lie?
1. No.
   
17. Do you know what is a truth?
1. I don’t know.
   
17. If you tell lies to your father, what will he do to you?
1. He will hit me.
   
17. And if you tell the truth to your father, what will he do to you?
1. He will not hit me.
   
17. Do you know that you came to Court to give evidence against this man on other side?
1. Yes, I know.
   
17. Do you know when you give evidence to this Court, you must tell the truth only?
1. Yes.
   

I have also observed the witness very closely when she responded to the questions asked. I observed her demeanour and am convinced beyond doubt that this witness, although 8 years old (7 at time of offence) is very confident of herself. She is intelligent and a bright child. She listens carefully to the questions put to her and responses without hesitation. To my mind, even though she is 8 years old, she is capable of giving evidence. She gave evidence without the assistance of any relatives either beside her in Court or inside the Courtroom and the public gallery.

I then allowed her to give evidence on affirmation.

She said in her evidence that "firstly I was at the house, I came and had my bath. After I had my bath, I came up, I was sleeping. Accused came up and did bad thing to me". She pointed to the accused at the dock as the person who did the bad thing to her. She knew accused by both his names – Siaro Unde.

She said that the reason why accused came and stayed with victim and her parents because accused’s line got cross with him at Waigani. She said the bad thing done was that accused shoved his penis into her anus. This happened in accused’s room. The bad thing happened during the daytime and the victim went and told her sister Rita and one Naomi from Kerema. When her father arrived, she reported and the accused was taken to the Police Station and the victim was later taken to the hospital for medical examination.

The medical report says the victim was seen or examined at 6.30pm, same day on the 11th August 1998.

The accused in his evidence basically said he was asleep when the victim came inside the house, went to him, took off his towel and sat on his penis. Yet, in his record of interview at questions and answers 17, 18, 20, he said:

"Q.17. Who entered the house when you were alone?

1. Rosena Yomuna.
   

Q.18. Where did she go when she entered the house?

1. She went to my bed beside the door and she picked up a playing card, walked over to the door and sat down.
   

Q.20. Did you remove the young girl’s trousers?

1. She removed my trousers."
   

What accused told Police in his record of interview was on 13/8/98, two days after the incident when his mind was fresh. I therefore accept and believe what was said in the ROI and not what he said now.

The whole of the evidence boils down to the issue of credibility. After observing the victim giving evidence, her demeanour and coupled with the ROI and the medical report, I am convinced beyond reasonable doubt that the victim is telling the truth of what really happened. I am supported in this view by the medical report, which said:

"Examination revealed an alert, co-operative child. Vaginal examination revealed extensive erythema over the vulva and perineum, stain peeling around the vagina/vulva and anus."

This confirms the victim’s version of the events and that there was or may have been sexual intercourse of the anus.

In view of the above convincing facts, I find the accused guilty of unlawful carnal knowledge against the order of nature pursuant to s 210(1)(a) of the Criminal Code and convict him accordingly.

Sentence

I have heard counsels’ submissions on sentence. I have considered s 19 of the Criminal Code also.

Prisoner’s lawyer submitted that he is between 50 to 60 years old, first time offender. He has been a bachelor all his life and residing in Kaugere prior to this offence. He was employed by Wormald Security Company but was terminated in July of 1998 after 12 years and 6 months with that company. He has been in custody for 6 months and 19 days since 11th August 1998. Finally for this offence, he submits that prisoners have been sentenced up to 4 years imprisonment. State lawyer submitted that prisoner pleaded not guilty, a trial was conducted and the victim had to go through the trauma of telling and reliving the effect of what took place. Although the maximum sentence is reserved for the worst kind, as stated in Goli Golu v State [1979] PNGLR 653, however, each case must be decided on its own facts and circumstances. The aggravating factors against the prisoner are that:

This is a trial where he pleaded not guilty and the victim had to relive the trauma of giving evidence of what happened.

Victim is of tender age of 7 at time of the offence and he is over 50 years old.

There is also a breach of trust placed on him when he was taken by the victim’s father into their house after being chased away from Waigani.

Victim suffered injuries as stated in the medical report and referred to in my reasons for finding him guilty.

I agree with both submissions. I take note of the aggravating factors in prisoner’s case as submitted by State and mentioned above.

The Supreme Court in 1974 in the case of The Secretary for Law v Kwauga [1974] PNGLR 135, a case involving insufficiency of sentence on a charge of unlawful carnal knowledge of girl under 12 years old said:

"The trial judge had proceeded on a wrong principle in not having sufficient regard to the consideration of deterring both the respondent and others, and insufficient weight had been given to protect the public and in particular young girls, from this type of offence and accordingly the appeal should be allowed."

There the sentence was increased from 2 years to 4 years. Again in 1975, in the case of The Secretary for Law v Kabua Dewake [1975] PNGLR 100, an appeal against insufficiency of sentence of 4 months, the Court upheld the appeal and substituted 12 months. There the Supreme Court said:

"That having regard to the law’s special interest in protecting children of tender years and the strong concern, which should be reflected in the sentence, of the people of Papua New Guinea not only for the general case of children, but that young children should not be exposed to sexual treatment such as occurred here and which is regarded throughout the community as a matter of gravity, the sentence was inadequate to the extent that it was manifestly so and a sentence of 12 months should be substituted."

That was a case of unlawful carnal knowledge of a young boy. The Court applied the same principle in Kwauga’s case of 1974.

In a more recent reported case of The State v Raphael Kuengu [1993] PNGLR 124, Doherty J in dealing with a sodomy case in prison, said:

"The circumstances of the offence would have amounted to rape if the victim had been a female, and the aggravating factors set out in Aubuku v The State [1987] PNGLR 267 are applicable."

Her Honour also said "the sentence guidelines in Aubuku v The State [1987] PNGLR 267 cannot be adopted in total as the maximum penalties for the two offences are different". She also applied the principle in Dewake’s case referred above.

In 1996, I applied the same principles in the case of The State v Anton Goi (1996) unreported CR756 of 1996, where I sentenced the prisoner to 4 years. That was a case involving a boy of 10 years.

It is clear from these cases that any offences of a sexual nature on any child must be dealt with severely in order to protect not only the community but also the small children, especially young girls of tender years as in the present case. The prisoner here, in my view is aged about 55 years. The victim was only 7 years. He breached the trust placed on him by the victim’s family and especially the victim who did not fear anything would be done to her by the prisoner.

The prisoner is old enough to be her grandfather and yet he acted like an animal without the decency and concern for the victim. The victim received minor injuries but it does not matter because under s 210(2) of the Criminal Code, even an attempt to commit unlawful carnal knowledge against order of nature carries a maximum not exceeding 7 years.

In the present facts and circumstances of this case, I am of the view that a severe custodial sentence is called for in order to deter and prevent this offence recurring and to protect the young children, particularly those of tender years. I therefore sentence the prisoner to 7 years.

As the deduction is a discretionary matter, I will not take any time off for being in custody pursuant to s 3(2) of Criminal Justice (Sentences) Act, No. 19 of 1986.

Prisoner sentenced accordingly.

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