The State v Joseph Minjihau (2002) N2243

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 24 May 2002
• Citation: (2002) N2243
• Court: National Court
• Year: 2002
• Judgement Number: N2243

Full Title: The State v Joseph Minjihau (2002) N2243

National Court: Kandakasi J

Judgment Delivered: 24 May 2002

N2243

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 531 of 2001

THE STATE

-V-

JOSEPH MINJIHAU

WEWAK: KANDAKASI, J.

2002: 22nd and 24th May

CRIMINAL LAW - Sentence – Unlawful carnal knowledge of a girl under the age of 16 – Obtaining sexual intercourse with victim on number of occasion in return for cash – Need to protect children against abuse paramount – Introducing victim to sex for cash trade considered very serious - Prisoner age 47 married with children – No Prior convictions – Aggravating factors outweighing mitigating factors – Maximum prescribed sentence of 5 years imposed – Criminal Code ss.216 and 19

Cases cited:

The State v. Sottie Apusa [1988-89] PNGLR 170.

The State v. Peter Yawoma (19/01/01) N2032.

Counsel

Mr. M. Ruarri for the State

Mr. D. Kari for the Accused

DECISION ON SENTENCE

24th May, 2002

KANDAKASI J: You pleaded guilty to one charge of unlawful carnal knowledge of a girl (named but mentioned only as the victim for her protection) under the age of 16 years. That was here in Wewak on 3rd November 2001, at the Labu camp Kreer area. What you did is prohibited by s. 348 of the Criminal Code.

Facts

The facts as they appear from the depositions are these. Prior to the 3rd of November 2001, you have had about 4 sexual intercourses with the victim. Each time you had sex with the victim you paid varying amounts of K20.00 and K10.00. It seems you started all of these off with offering her a K20.00. When she showed an interest in receiving it, you asked her to follow you into your house and then into the bedroom of your house. Once in the bedroom, you told her that, if she wanted to get the K20.00, she must have sexual intercourse with you. As she wanted the money, she agreed to you having sex with you. After satisfying your sexual desire, you let her go with the K20.00. You secured the other sex affairs in much the same way. On the fifth occasion, you had sex with her in a sago palm area. That was on the 3rd of November 2001 and you were finally caught.

The victim’s adopted mother came in at you request and confirmed that the victim was born on 28th August 1988. The victim also came into court for the Courts observation as to her appearance and that confirmed that she is in fact an under age girl. She did not appear to be a grown up by any means. I could not tell how she could give the impression to you that she was of a mature age and ready for sex with such a person like you.

Both your family and that of the victim live in the same area here in the township of Wewak, particular at Labu camp in Kreer. Hence you are not total strangers but know to each other. From the evidence on file, it is clear that the people in the area do some things together, such as watching Videos and TV. The Children also played together which usually happens in most communities in the country.

Address on sentence

In your address on sentence, you told the Court that you are married with six children, with two of them in high school while two of them are in primary school. You said you were sorry for what you have done and asked the Court to exercise mercy toward you. I asked why was it that you did not turn to your wife to satisfy your sexual desires and you said she was with a new baby.

You lawyer added a few more details about you. He submitted and I note that you are about 42 years old and married with 6 children, 5 girls and 1 boy. You are the eldest of your own family of 3. You have been up to grade 8 education and managed to find employment with the Copra Marketing Board up to the position of a foreman. You have no prior convictions and so this is the first time you are before a court.

Your lawyer also drew the Court’s attention to the cases of The State v. Sottie Apusa [1988-89] PNGLR 170, and asked me to be guided by the guidelines suggested in that case. He then submitted that your case falls into the third category where circumstances of aggravation exist and asked this Court to give you a sentence less then the prescribe sentence of 5 years.

The Offence and Sentencing trend.

The offence with which you have been charge is created and the penalty is prescribed by s.216 of the Code. It carries a maximum sentence of 5 years subject to section 19 also of the Code. The only reported case on point is the case of The State v. Sottie Apusa (supra) referred to by your lawyer. The only addition to that, as far as I am aware is my judgement in The State v. Peter Yawoma (19/01/01) N2032.

In The State v. Sottie Apusa (supra) the offender, a stepfather had sexual intercourse with his stepdaughter six times over four months. He pleaded guilty to a charge under s. 216 (1)(a) of the Code. A sentence of 3 years and two months was imposed. At the same time the Court in my view ably set out the relevant guidelines for sentencing in unlawful carnal knowledge cases. Those guidelines are best summarised in the following terms, which appear in the head note to the judgement:

(1) a lower range from discharge up to 20 months, for cases where the accused and the victim are of similar age, where the accused is a young offender and the victim between 14 and 16 years and where the offender is disabled, or physically or mentally handicapped and the victim a consenting party;

(2) a middle range from 20 months to 40 months, for cases where the accused is a mature man and there are no circumstances of aggravation;

(3) an upper range from 40 months to the maximum of five years, for cases where there are circumstances of aggravation, such as, cases where there is a relationship of trust and dependency between the accused and the victim, for example, teacher and pupil, medical career and patient, and step-father/uncle relationships.

I referred to these guidelines in my judgement in The State v. Peter Yawoma (supra). I then noted that there were other cases on unlawful carnal knowledge but they involved girls under the age of 12 or the offences have been committed against the course of nature or that they have been committed in association with other offences. I therefore said in that case that, strictly speaking, those other cases couldn’t be of any help. Up to...