The State v Damien Mangawi (2003) N2419

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 13 June 2003
• Citation: (2003) N2419
• Court: National Court
• Year: 2003
• Judgement Number: N2419

Full Title: The State v Damien Mangawi (2003) N2419

National Court: Kandakasi J

Judgment Delivered: 13 June 2003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1119 of 2001

THE STATE

-V-

DAMIEN MANGAWI

WEWAK: KANDAKASI, J.

2003: 6th and 13th June

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Unlawful carnal knowledge of girl under 12 years – Guilty plea – Offender with no prior convictions - Substantial age difference between prisoner and victim – Offences committed in breach of trust situation – No expression of remorse – Need and call for stiffer penalties against persons offending against children considered - A punitive and deterrent sentence called for – Sentence of 12 years imprisonment imposed - Criminal Code ss. 213 and 19.

Cases cited:

The State v. Peter Yawoma (Unreported judgement) N2032.

The State v. Joseph Minjihau (unreported judgement) N2243.

The State v. Moki Lepi (No. 2) (22/07/02) N2278.

The State v. Bernard Konombo (21/11/97) N1742.

John Aubuku -v- The State [1987] PNGLR 267.

The State -v- Sotie Apusa [1989] PNGLR 170.

James Mora Meaoa v. The State [1996] PNGLR 280.

Thomas Waim v. The State (02/05/97) SC519.

Eddie Peter v. The State (2) N2297.

The State v. Edward Toude & Ors (2) N2299 .

The State v. Otto Paulus (21/05/02) CR NO. 51 of 2002.

Grayson Andowa -v- The State (01/10/98) SC 576.

Counsels:

Mr. P. Kaluwin for the State

Mr. G. Korei for the Accused

13th June, 2003

KANDAKASI J: On Friday last week you pleaded guilty to one charge of unlawful carnal knowledge of a girl under twelve (12) years. After having heard you and your lawyer’s address on sentence, as well as that of the State, I reserved a ruling on your sentence to today. The adjournment was to enable me to consider the submissions and the relevant law on this kind of cases before arriving at a sentence for you. This is now the Court’s decision on sentence.

Relevant Facts

The relevant facts are simply these. On Tuesday 17th of August 2001, you took your little niece, DD to a nearby creek at your village, Andra, Kubalia, East Sepik Province. Whilst there, you took off her underwear and pushed her down on the ground. She landed face up. You then opened her legs, put your penis into her vagina and had sex with her. Your victim felt a lot of pain and cried. Her cry was heard back in the village. After having satisfied yourself, you told her not to tell her mother and took her back into the village.

The victim did not tell anyone about what you did to her the same day. But the next day, she had difficulty urinating because of your forceful sexual intercourse with her caused some injuries that hurt. Her mother asked her as to the cause of that and she told her mother about what you did to her. Medical evidence confirms that the victim had a torn hymen at 9:00 o’clock position and a minor right labia majora bruise. It also confirms that there was a vaginal penetration.

You told the Police, in your record of interview, that you were the victim’s paternal uncle. At the time of the offence and your record of interview, you told the Police you were 16 years old whilst the victim was only 3 years old. So therefore, there was a big difference in your age between her and you. You were much older than she was. You also told the Police that you did what you did because you had a strong desire to have sex.

There is no evidence of you saying sorry and making it right with the victim and her parents, especially the mother and her side. You neither expressed any remorse in Court nor did you promise not to repeat the offence or any other offence in future. There is also no evidence that the victim is now functioning well without any psychological set back.

The offence

Section 213 of the Criminal Code creates and prescribes the offence and the penalty in these terms:

“(1) A person who has unlawful carnal knowledge of a girl under the age of 12 years is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.”

Parliament considered then and even now that, sexual offences against young children very serious. This is mainly because this category of our population is very vulnerable and defenseless. Yet they are the country’s leaders and people of tomorrow. It is an accepted medical or scientific fact that whatever happens in a person’s earlier life remains long in their memories. Further, as I noted in The State v. Peter Yawoma (Unreported judgement) N2032, even though there might be no evidence of any physical harm, numerous sexual and other violent offence cases clearly show that, victims of such offences continue to suffer ongoing psychological problems. In countries like Australia and elsewhere, there are readily available appropriate medical services to assist victims to overcome such problems. But the situation is not the same here. Such specialist medical services are almost non-existent. This means, victims of such offences are left with no assistance at all. Hence the need to protect the young against any bad experience. Offences against young children are prevalent these days. That means past sentences have failed to deter offenders like you from offending against them.

Parliament has therefore prescribed the maximum sentence of life imprisonment and very recently it passed a new law to make it easier to convict and punish those who offend against young children. This is the highest institution of the land responding to this serious crime against our young people. It is also in response not only to a national but international call for greater protection of our children.

Bearing this in mind, (except for the passing of the new law), in The State v. Joseph Minjihau (unreported judgement) N2243, I sentenced an elderly married man with children to 5 years imprisonment in hard labour here in Wewak. His offence was committing unlawful carnal knowledge of a girl under the age of 16 years contrary to s.216 of the Criminal Code, where the maximum prescribed penalty is 5 years imprisonment.

Earlier on in The State v. Moki Lepi (No. 2) (22/07/02) N2278, I decided to impose a term of 8 years for attempted unlawful carnal knowledge of a girl under 10 years and a further 3 years for indecently dealing with a girl under 16 years. I ordered these sentences to be served cumulatively. That was in a case of a breach of a trust relationship where there was a distance relationship between the victim and the offender through the offender’s marriage to the victim’s aunt. The victim was about 5 years old and her offender was a married man with children of his own.

Much earlier on in The State v. Peter Yawoma (supra), I imposed a sentence of 6 years against the offender. In that case, the prisoner was charged with attempted rape of a 3 years and 4 months old girl. The prisoner was the victim’s paternal uncle. He had taken the victim out of her parents’ house where she was sleeping. He attempted to forcefully have sexual intercourse with the victim but was not able to succeed because of the tender age of the victim. The victim suffered some lacerations and bruises. The prisoner also pleaded guilty and was a first time offender. He expressed genuine remorse over his conduct and acknowledged that he was wrong.

Your lawyer referred me to the case of The State v. Bernard Konombo (21/11/97) N1742. In that case, the prisoner was charged under s. 213 for having unlawful carnal knowledge then aged 9 years and 4 months. The prisoner had a prior conviction for the same offence a few months before and that he had infected the victim with a sexually transmitted decease, gonorrhea. He was given a sentence of 4 years.

This is the only judgement on point for an offence under s.213 of the Code. In my view, it correctly states that an offence under s.213 is similar to rape, an offence under s. 347 of the Code. The only distinction between the two is that in the case of rape, consent is a defence, whilst it does not matter whether there was consent of the victim for an offence under s.213. Accordingly, in the absence of any sentencing guideline, those set by John Aubuku -v- The State [1987] PNGLR 267 should serve as the relevant guidelines with the necessary modification.

Given this, I do not accept with respect that it is appropriate to have any regard to the guidelines suggested by the National Court in The State -v- Sotie Apusa [1989] PNGLR 170, as did the Court in that judgement. In any case, the guidelines suggested are in relation to a case of a charge...