The State v Chris Nawa (No 2) (2009) N3732

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J
• Judgment Date: 29 July 2009
• Citation: (2009) N3732
• Docket Number: CR.NO.612 OF 2007
• Court: National Court
• Year: 2009
• Judgement Number: N3732

Full Title: CR.NO.612 OF 2007; The State v Chris Nawa (No 2) (2009) N3732

National Court: Lenalia, J

Judgment Delivered: 29 July 2009

N3732

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.612 OF 2007

THE STATE

-V-

CHRIS NAWA (N0.2)

Buka: Lenalia, J.

2009: 24th, 28th & 29th July

CRIMINAL LAW – Sexual penetration – Under aged girl –

Sentence after finding of guilty – Criminal Code (Sexual Offences and Crimes Against Children) Act s.229A (1) –

CRIMINAL LAW – Sexual penetration – Principles of sentencing in

sexual penetration case of under aged girls – Deterrent sentence called for – Factors for consideration – Substantial age difference – Accused aged 41 while victim was 14 years at time of offence.

Cases cited.

The State v Peter Lare (2004) N2557

The State v Thomas Angup (21.4.05) N2830

The State v Paul Nelson (25.5.05) N2844

The State v Thomas Tokaliu (22.2.06) N3026

The State v Kaminiel Ocala (18.4.06) N3052

The State v Mathias Tiamani (25.5.09) Cr.No.923 of 2008

Counsel:

C. Sambua, for the State

E. Latu, for the Accused

29th July, 2009

1. LENALIA, J: The prisoner was found guilty of one count of sexual penetration of the victim (JB) under the age of 16 years. She was aged 14 years on the year the offence was committed. For purposes of protecting the interest and future standing of this young lady, I will only refer to her as JB. Sexual penetration of girls under the age of 16 or 12 years is prohibited by s.229A (1) & (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act.

2. For purposes of the following discussion, I quote the above section including subsection (3) which provides for the maximum penalty in cases aggravated by any existing relationship of trust, authority or dependency as defined by s.6A (1) and (2) of the Act. Section 229A (1) (2) and (3) states:

“(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 Subsections (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.”

3. For purposes of sentence, I just wish to recapitulate on the evidence on which the prisoner was found guilty. On 10th November 2006 at Wakunai beach, Autonomous Region of Bougainville, after the school closed at 12.30 pm, the prisoner allured the two girls who were witnesses on the trial of this case to accompany him to Teokon village. He had spoken to the two of them a number of times before they left the school and even at the beach. He had even sent two different male students with messages to the victim asking if he could accompany her to Teokon village.

4. When he came to the beach where most of the students were swimming in the river with the victim and Delphine Vane (the second witness), he inquired again which track they were going to go through. The victim suggested that they were to follow the main road. The prisoner suggested that they should take the short cut together with him because he wanted to see the school treasurer.

5. After convincing the two girls, the victim’s girl friend Delphine Vane led the way, followed by the accused and the victim was the last person. After walking several hundred metres from the beach and with the feeling that something was to happen to her, JB without telling her friend and the accused made a U-turn and ran back toward the beach. The evidence by Delphine and the accused say that, JB informed them that she was to return to the beach to pick something.

6. When she reached the beach, she stood and looked around not knowing that the accused had caught up with her. He came and stood a couple of metres away from her and asked her to walk up to him. At first the victim was quite reluctant to do as the accused ordered. The victim said, when she did not move, the accused shouted at her and ordered her to come close to him.

7. She obeyed and the two of them walked a few metres into the bushes and there the accused asked her to remove her clothes. When she was naked, he asked her to lie down on the ground. He kneeled down and commenced to push his fingers in and out the victim’s vagina a number of times. JB said, this was done to enlarge the orifice.

8. She said, the accused then laid on top her and tried to sexually penetrate her. When he tried to push his penis into her vagina, he could not penetrate her. He tried the second time, he could not succeed. He tried the third time and it was when he penetrated her. According to JB when the accused reached orgasm, he withdrew his penis out of her vagina and ejaculated on the ground. He told her to get dress, he also got dressed and they walked away into different directions. In the case of JB she walked up the same track and reached the river where her friend was swimming waiting for them. A few minutes latter the accused came up and gave them a piece of paper to give to the school treasurer.

Addresses on sentence

9. When allocutus was administered, the prisoner said he is sorry to the State, his family and his colleague teachers in the school where he was teaching when the allegations arose against him. He said, he has served the nation as a teacher for 27 years. Part of his statement was made about his family whom he has dedicatedly served for the period of his marriage life.

10 He comes from a religion with very strict religious beliefs and would like to say sorry to the fellow church members. Antecedents on the file as well as on the submission by Mr. Latu of counsel for the prisoner show that, the prisoner is a member of the Papua New Guinea Christian Life Centre. He even stated that, despite the court finding him guilty, he maintains his innocence but he accepts the court decision. He asked the court to be lenient with him on sentence.

Defence address on sentence

11. On sentence. Mr. Latu asked that the court should consider the background antecedents of the prisoner. He is now currently teaching at Kieta Primary School. He is the Headmaster of that school. He is married and has 7 children. The oldest child from the present marriage is 21 years with the youngest about 3 years. The pre-sentence report shows that, his family is living in Buin and he is alone in the above school teaching.

12. Counsel submitted that the court should consider the prisoner has served the nation in the teaching profession for 27 years. He is currently teaching and has great responsibility of paying school fees for his children attending various educational institutions. Mr. Latu quoted case law authorities to support his submission for a lenient penalty and some rape cases which do not have any direct application to the nature of the present case.

Prosecution address on sentence

13. Mr. Sambua of counsel for the State addressed the court on the serious nature of the crime of sexual penetration of under aged girls. He cited cases in support of his submission that, the offence of sexual penetration of under age girls is very serious. A serious aspect of Mr. Sumbua’s address relates to the breach of trust which the prisoner committed upon the victim who was his pupil at the time he had sex with her.

Law

14. The accused is charged with the crime of sexual penetration against s.229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. As the prisoner heard at the introduction of this judgment, the court said, the maximum penalty provided for the above offence is 25 years imprisonment but if it is committed with aggravation as defined by s.6A (2) (d) of the Act, an imprisonment term of life is available for such cases.

15. Sexual abuse of our young children in this country is very prevalent. Very young girls are being abused at early ages as was the case in the instant case. A child at the age of 14 years is a child of very tender age and is not capable of having sexual relations with anyone. The courts look at these kinds of abuses to be very serious. There are many forms of child abuse such as physical, mental, emotional and sexual abuse. The law on sexual offences was designed to protect children against sexual abuse.

16. The prisoner’s case was a one off incident. However it was aggravated by two factors. First, the age of the victim was under 16 years. The law protects children and particularly the under aged ones because they are weak and incapable of deciding on what is the difference between good and evil. This is the reason why the new law on sexual offences is very specific.

17. I say specific in the sense that, for instance, if someone is charged for rape, that is because, the victim did not consent to have sex with the man. In the case of sexual penetration of under age children, the element of consent is not an issue. That is to say, as in the present case, even if there was consent on the part of JB as the evidence seems to show, but that is quite irrelevant because s.229A (1) of the Act states that anyone “who engages in an act of sexual penetration with a...