The State v Kagewa Tanang (2005) N2941

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 13 October 2005
• Court: National Court
• Citation: (2005) N2941
• Docket Number: CR 893 of 2005
• Year: 2005
• Judgement Number: N2941

Full Title: CR 893 of 2005; The State Kagewa Tanang (2005) N2941

National Court: Kirriwom J

Judgment Delivered: 13 October 2005

N2941

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 893 OF 2005

THE STATE

-V-

KAGEWA TANANG

FINSCHAFEN & LAE : KIRRIWOM, J

2005 : 2 August & 13th October

Cases cited:

The State v. Kiddi Sorari [2004] N2553 (29/4/04)

The State v. Paul Nelson [2004] N2844

The State v. Thomas Angup [2005] N2830

Counsels:

J. Done for the State

R. Yombon for the Accused

SENTENCE

13th October 2005

KIRRIWOM, J: The prisoner pleaded guilty to sexually touching the victim CR a child under the age of 12 years with his penis for sexual purposes contrary to section 229B of the Code. This offence carries a punishment not exceeding 12 years imprisonment. The indictment states that between 4th and 30th November 2004 at Buang village the prisoner touched the victim’s vagina with his body, namely, his penis, for sexual purposes, the victim was then a child under 12 years. On arraignment the accused admitted the committing the offence but said that he did it only once.

The facts are that on 4th November, 2004 at Buang Village inside a house the prisoner was alone with the victim a child aged 10 years old. She is the daughter of his brother. While alone with the victim the prisoner played with the victim’s vagina with his finger and then laid her on the floor where he used his penis and attempted sexual intercourse but could not penetrate so rubbed it round the vaginal wall.

The victim claimed that the prisoner did the same thing to her on four different occasions but the accused denied all except one. She said on each occasion he gave her K1, K2 or even .50 toea as bribe to prevent her from speaking out.

All these assaults took place in the absence of the mother who was in Lae. She discovered after she returned to the village and took the victim to Braun Memorial Hospital where medical examination confirmed the assaults and she reported the matter to the police.

The prisoner is related to the victim. According to the evidence from the victim’s mother, the record of interview and the victim herself, the prisoner is the victim’s uncle, her father’s brother.

The prisoner is liable to go to prison to 12 years. This penalty is provided under subsection (4) of section 229B. Section 229B states:

(1) A person who, for sexual purposes-

(a) A person who, for sexual purposes-

the age of 16 years; or

(b) compels a child under the age of 16 years, with any part of his or her body, the sexual parts of the accused person’s own body,

is guilty of a crime.

Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.

(2) For the purposes of this section, “sexual parts” include the genital area, groin, buttocks or breasts of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.

(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

(5) If, a 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 to imprisonment for a term not exceeding 12 years.

This section is one of those recent amendments that came into force two years ago giving effect to greater protection of child victims of violent crimes. In offences of sexual nature involving young children being sexually abused by adults, parents and close relatives are the most common law-breakers. This is why the Parliament must be commended for including in the amendments as a separate offence in itself on abuse of trust, authority or dependency under section 229E. Because even at the ages of 16-18 or even 20, a female victim of sexual violence who stands in a special relationship of trust, authority or dependency on her attacker will often find herself helpless to avoid or escape his persistence sexual abuse of her it her entire livelihood was dependent on maintaining the status quo.

This is a classical case where the prisoner took advantage of the special relationship between him and the victim and in an intimate environment he succumbed to his sexual desire and defiled his own niece. The prisoner is not a young man,...