The State v Kambi Sipris (2003) N2453

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 01 August 2003
• Court: National Court
• Citation: (2003) N2453
• Year: 2003
• Judgement Number: N2453

Full Title: The State v Kambi Sipris (2003) N2453

National Court: Jalina J

Judgment Delivered: 1 August 2003

N2453

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 1318 of 2002

THE STATE

-V-

KAMBI SIPRIS

Mt. Hagen: Jalina J

2003: 1st August

Criminal Law – Carnal Knowledge of girl under 12 years of age – Girl aged 6 years - Conviction following trial – Prisoner aged 18 years – First Offender – No major physical or mental harm to victim – Victim and prisoner from extended family – Need for protection of young girls – Criminal Code s. 213.

Cases cited:

The State –v- Thomas Pipon [1988 – 89] PNGLR 179

Counsel:

J. Waine for the State

P. Kumo for the Prisoner

SENTENCE

1st August 2003

JALINA J: You have been found guilty following a trial on a charge that on 15th April 2002 at Avi Block, outside Mt. Hagen, you had unlawful carnal knowledge of the victim who was under the age of 12 years. She was actually aged about 5 years and 6 months having been born on 25th October 1996. The facts surrounding the commission of this crime are set out in my judgment on the verdict which I delivered yesterday so there is no need for me to repeat them here suffice only to say that even though the victim sustained a torn hymen and her vagina was discharging mild yellowish puss with foul smell 5 days after the incident, there is no visible sign nor there is medical evidence that she is presently suffering from some major mental or physical harm.

Another aspect of this case which has been pointed out by defence counsel is that you and the victim are from the same extended family which confirms the fact that your family and the victim’s family live in the same neighbourhood. This to my mind brings this case into the category of sexual offences where breach of trust is involved and in such cases such breach of trust have been considered to be an aggravating factor.

The maximum penalty for this offence is life imprisonment under s. 213 of the Criminal Code although, by the same section, the court is given a discretion to impose a lesser sentence under s. 19 of the Code.

The prescription of penalty of life imprisonment reflects the seriousness with which the legislature viewed this crime. By prescribing such a high penalty the legislature no doubt considered the protection of young girls to be of paramount importance.

Whilst I am certain from the number of years I have been on the bench that quite a lot of cases have been heard by the National Court and then by the Supreme Court on appeal, very few cases involving the violation sexually of very young female children have been publicized let alone reported in the law reports and text books on criminal law is Papua New Guinea. One of the few cases arising out of a charge under s. 213 which have been reported and also commented upon by academic writers is The State –v- Thomas Pipon [1988 – 89] PNGLR 179 where Brunton AJ (as he then was) set some sentencing guidelines when sentencing an 18-year old young first offender who pleaded guilty to sexually molesting an 18-month old baby girl and infecting her with gonorrhea. His Honour said at p185 – 186 “If the starting point for a contested defilement case, where the accused is mature and there are not other mitigating or aggravating circumstances, is fixed at about five years imprisonment, then there may be seen to be some parity with rape cases. It matters not that a girl under 12 years of age consents to a sex act with a mature man, in my view, because generally the immaturity, the lack of discretion and the dependency of a child negate a true act of free will. That apart, the offence is cast in terms of strict liability, although precociousness may be a mitigating factor when the accused is either young himself, under some physical or mental disability, or very old, but not otherwise.

Defilement is generally an offence of the middle-aged or the old, but occasionally it occurs with the young. When the age-gap between the victim and accused is narrow (victim 11 – 12, and accused 13 – 16) then a sentence appropriate to a juvenile offender is in order. Young first offenders should be treated with leniency whenever possible, and those between the ages of 18 and 22 may well be considered for non-custodial, or partial non-custodial treatment. This may also apply to offenders who are disabled mentally or physically but not otherwise a threat to the public.

The middle of the tariff, four to seven years or so, appears to me to be appropriate for older offenders. The actual sentence imposed may vary depending on the facts – the frequency of the acts, the duration of the relationship, and whether or not...