The State v Apa Kuman (2000) N2047

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 20 December 2000
• Citation: (2000] PNGLR 313
• Court: National Court
• Year: 2000
• Judgement Number: N2047

Full Title: The State v Apa Kuman (2000) N2047

National Court: Kirriwom J

Judgment Delivered: 20 December 2000

N2047

PAPUA NEW GUINEA

[In the National Court of Justice]

CR. 877 of 2000

THE STATE

-v-

APA KUMAN

KUNDIAWA: KIRRIWOM, J

2000: 20th September, 20th December

CRIMINAL LAW - Sentence - Juvenile Offender — serious sexual assault with aggravating circumstance — General deterrence — Need to balance public interest against the factor of the offender's youth — Partial custodial sentence in juvenile section appropriate in the circumstances where no remorse shown followed by probation.

Cases cited:

Paulus Mandatitip & Anor v The State [1978] PNGLR 128

Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258

The State v Peter Kaudik [1987] PNGLR 201

John Aubuku v The State [1987] PNGLR 267

Kuri Willie v The State [1987] PNGLR 298

The State v Anis Noki [1993] PNGLR 426

The State v William Kapis Anis (Unreported National Court), N1659.

Counsel:

Mr F. Kuvi for the State

Mr M. Apie'e for the Prisoner

SENTENCE

20th December 2000:

KIRRIWOM J: This young offender came before me on 20th September 2000 charged with two serious indictable offences, namely, rape and with intent to do grievous bodily harm, did cause grievous bodily harm to one Saina Baka. Both these offences carry maximum penalties of life imprisonment subject to section 19. If it were not for his very young age, this young man is already looking at a total of twenty (20) or so years in prison as his punishment for both crimes.

On the 15th of April 2000 the prisoner saw the victim Saina Baka, a child of seven (7) years collecting firewood in the garden on the out-skirts of their village of Genabona, Gumine District, Simbu Province. Upon seeing her alone the prisoner went to her and tricked her into following him into the bush where he saw a bird's nest with its little ones. He picked up her bush-knife and told her to follow him. It is not clear on the facts whether she complied and followed him and if so, how far they travelled. However, it seems that they did not go far at all because according to the prosecutrix, without saying anything more the prisoner grabbed her by her hand and dragged her under the coffee trees. There he pushed her on the ground, spread her legs apart, lifted her skirt, removed his erect penis from his trousers and put it into her vagina. She felt his penis go in slightly and went no further. She felt terrible pain at the point of almost urinating. She saw him ejaculate onto her body as he stood up. He ordered her to suck his penis but she refused. He placed the bush-knife on her throat and warned her not to report to anyone. She then tried to scream and he cut her across her stomach causing extensive damage to her left and right lobes, which bled profusely into the abdomen. Quick admission to Kundiawa Hospital prevented further bleeding and saved her from death due to loss of blood.

When arraigned on both charges the prisoner pleaded guilty on both counts. As to the count of rape, the only evidence of rape is from the prosecutrix herself. There is no independent corroborative evidence. The medical evidence discloses nothing at all on the sexual invasion of the prosecutrix's vagina by the prisoner. The medical report was prepared primarily on the assault or grievous bodily harm occasioned to the prosecutrix. The report only makes reference to the sexual attack by simply stating that the prosecutrix was "raped" without any discussion as to how such conclusion was reached. The only reason I accepted the plea of guilty to rape was, firstly, in the record of interview the prisoner clearly admits to penetrating the prosecutrix's vagina and also in the prosecutrix's own statement she said: "He put his penis to my vagina (sic) and was pushing and rubbing his penis against my vagina (sic). I felt his penis slightly go into my vagina (sic) but could go no further. I felt a great deal of pain and I nearly urinated." This evidence shows clearly that the prisoner applied force to effect penetration and did succeed to some degree, however incomplete it maybe, thus causing extensive pain and discomfort to the prosecutrix. The law is quite clear that even the slightest degree of penetration is sufficient to satisfy that there was carnal knowledge as defined under...