The State v David Awi

• Jurisdiction: Papua New Guinea
• Judge: Liosi, AJ
• Judgment Date: 17 June 2016
• Citation: (2016) N6563
• Court: National Court
• Year: 2016
• Judgement Number: N6563

Full : CR No 960 of 2014; The State v David Awi (2016) N6563

National Court: Liosi, AJ

Judgment Delivered: 17 June 2016

N6563

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

CR No 960 of 2014;

BETWEEN

THE STATE

AND

DAVID AWI

Kundiawa: Liosi, AJ.

2016: 26thApril, 17th June

CRIMINAL LAW – Sentence – Sexual penetration of a child 6 years old – Criminal Code Act, Chp262 – Section 229A(1)& (3) – Factors in mitigation – guilty plea – Prisoner now crippled – Isolated and one off incident – first time offender – no use of force or violence – Aggravating factors – Existence of trust – Age difference – Sentence of 10 years imposed

Cases cited:

Goli Golu -v- The State [1979] PNGLR 653
Sabiu -v- The State (2007) SC866
State -v- Biason Benson Samson N2799 to
State -v- John Ritsi Kutetoa (2005) N2814
State -v- Pennias Mokei (No.2) 2004 N2635
State -v-Tiama Esrom (2006) N3054
The State -v- Ben Sakias (2011) N4238
The State -v- Billy Paulo N5286
The State -v- Ereman Kepas (2007) N3192
The State -v- Joe Mui CR 1495 of 2010
The State -v- Kawage [2009] PGNC 87
The State -v- Martin Willie CR 541 of 2010 (Unreported and unpublished judgment dated 12th December)
The State -v- Peter Lare (2004) N2557
Yalibakut -v- The State [2006] PGSC 27 SC890

Counsel:
K. Umpake, for the State
M. Yawip & B. Popeu, for the Prisoner

Ruling

17th June, 2016

1. LIOSI AJ: The Prisoner David Awi pleaded guilty to 1 count of sexual penetration of one Marian Ulka a 6 year old female pursuant to s.229A(1)(2) & (3) of the Criminal Code.

2. The State alleged that the prisoner on the 25th day of April 2012, at Goglme Village in Kerowagi in Papua New Guinea engaged in an act of sexual penetration with one Marian Ulka a female child under the age of 12 years, then aged 6 years by inserting his penis into her vagina.

And at this time the said David Awi had an existing relationship of trust with the said Marian Ulka.

Facts

3. The alleged facts upon which the prisoner is sentenced is as follows. At about 2 pm on the 25th April 2012 at Goglme Village in the Kerowagi District, the victim a 6 year old female child was with her mother at a neighbour’s house where people were gambling. The prisoner then 22 years old had returned from school and was alone in the victim’s house. He called the victim over to the house. Whilst playing with her, he got tempted. He lifted the victim onto the bed and had sexual intercourse with her by inserting his erect penis into her vagina. The victim did not reveal the incident to anyone in fear of harm by the prisoner.

4. She developed vaginal infections and became ill from time to time. On 3rd May 2014 she complained of abdominal and back pains. Upon persistent questioning by the mother and a medical staff from Kerowagi Health Centre she eventually reported the incident. She was then medically examined and treated.

5. The State further alleged a relationship of trust with the victim because he lived at the victims house and was been looked after by the victims parents.

6. I entered a plea of guilty and convicted him after reading the depositions and satisfying myself.

Antecedent

7. The prisoner is 24 years old and completed grade 10 at Kerowagi Secondary School in 2013. He was unable to continue due to poor academic performance. Both his biological parents are deceased and he was being maintained and supported by the victim’s parents who are his uncle and the wife. He has no prior convictions.

Allocatus

8. On allocatus, the prisoner said whilst he was in the Police cells, there were two breakouts. He did not escape as he respected the Court. After been committed to stand trial, he was transferred to Barawagi Correctional Institution Services. Whilst awaiting his trial, his mother passed away. The village Councillor and his family requested if he could attend the funeral but the Correctional Institution Services refused the request. This prompted him to escape from custody. He surrendered after the escape but after been taken back to the cellblock he was shot on the leg four (4) times from which he is now crippled.

9. He says sometimes he is fed but most times he goes without food. Barawagi Jail is now over crowded as it is serving two provinces. Sometimes he excretes in the cellblock causing unhygienic conditions for other remandees. His family will assist him if he lived outside. He is sorry to the Court, to God the father and family of the victim for the crime.

Submission on Sentence

10. Mr. Popeu for the prisoner submits that since the State has pleaded circumstances of aggravation under s.229 (2)&(3) in the indictment the maximum imprisonment term would be life imprisonment but subject to s.19 of the Criminal code Act. The relevant provisions of s. 19 of the Criminal code Act would be s.19(1)(a)&(d)&19(6)(a)&(b) which deals with the construction of provisions of the Code as to punishments.

11. He submits the other relevant applicable principle of law is to be found in the Supreme Court case of Yalibakut -v- The State [2006] PGSC 27; SC 890. The Supreme Court in that case held that “as to the facts which the offender has not pleaded guilty, the offender must be given the benefit of a reasonable doubt”. In such circumstances the Supreme Court also held that the Court should act on version of facts which within the bounds of possibility is most favourable to the accused.

12. In mitigation he submitted the following;

1) Prisoner has no prior convictions and is a first time offender.

2) He co-operated with the Police at the outset as admitted in his Record of interview.

3) He pleaded guilty to the offence.

4) The prisoner expressed genuine remorse as evidenced in his allocatus where he apologised to the Court, the victim and her family.

5) No weapon was used in the commission of the offence.

6) The victim did not suffer any serious or permanent physical injury. According to the medical report dated 5th May 2014 that was tendered into evidence the victim was in stable and satisfactory condition.

7) The Prisoner is now a cripple as evidenced in his allocatus and Pre-Sentence Report.

8) The Prisoner is a young offender. He is now 24 years old; he was 22 years old when he was charged (see antecedent report of 2014), and was 18 years old during the commission of the offence in 2012.

9) Isolated incident with no pre-planning.

10) The defence submits that there was consent in this case and that it is a relevant mitigating factor in this case.

13. The evidence before the Court is sufficient for the Court to draw an inference that sexual intercourse was consensual in this case. The accused stated in his Record of Interview (questions 23 and 25) that the victim consented to sexual intercourse. According to the victim’s statement she did not scream and further there is no evidence of force. The incident was not reported until 2 years later when the mother enquired. The victim stated that she was threatened by the Prisoner not to tell anyone but the Prisoner denies issuing any threats to the victim.

14. Applying the principles in the case of Yalibakut -v-The State (supra), the Prisoner in this case must be given the benefit of a reasonable doubt to facts which he has not pleaded guilty to. They include the issue of consent and threat to the victim not to tell anyone. These facts are in contention and the Prisoner must be given the benefit of a reasonable doubt as to this issues. The Record of Interview is in line with the victim’s statement which does not attest to any screaming or force and the very late revelation by the victim establishes a reasonable doubt as to whether there was consent or not. Therefore the Prisoner should be given the benefit of that doubt based upon this evidence.

15. Counsel also cited several cases to assist the Court in determining the penalty. He cited the cases of The State -v- Kawage [2009]PGNC 87; N3696 and the Supreme Court case of Yalibakut -v- The State (supra)

16. In the case of State -v- Kawage, the offender pleaded guilty to the charge of Sexual Penetration of a Child under the age of 16 under section 229 A (1) of the Criminal Code Act. The age difference between the offender and the victim was 10 years as the prisoner was 24 years old and the victim was 14 years old at the time of the offence. There was lack of consent in that case and there was an existing relationship of trust as the prisoner was the victim’s uncle. In that case there existed the factor of aggravated violence as the prisoner punched the victim’s face and covered her mouth before and during the sexual encounter. The prisoner was sentenced to 14 years in hard labour at Barawagi Correctional Services.

17. In Yalibakut -v- The State (supra), there was an appeal against conviction and sentence. The relevance of that case is the appeal against the sentence. The offender in that case pleaded guilty to a charge of Sexual Penetration of a Child under the age of 16 under section 229A(1) of the Criminal Code Act. The age difference between the offender and victim was 29 years as the prisoner was 40 years old and the victim was...