The State v Kemai Lumou (2004) N2684

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 23 September 2004
• Citation: (2004) N2684
• Court: National Court
• Year: 2004
• Judgement Number: N2684

Full Title: The State v Kemai Lumou (2004) N2684

National Court: Kandakasi J

Judgment Delivered: 23 September 2004

1 CRIMINAL LAW—Sentence—Sexual penetration of a girl under 16 years—No physical injuries—Facts disclose case of rape—Offence committed in breach of trust as uncle—Conviction after trial—First time offender—Aggravating factors outweighing those in mitigation—17 years imposed—s229A of Criminal Code.

2 The State v Peter Lare (20/05/04) N2557, The State v Peter Yawoma N2032, The State v Nivi Araba (22/04/99) N1849, The State v Damien Mangawi (13/06/03) N2419, The State v Dii Gideon (05/03/02) N2335, The Secretary for Law v Kwauga [1974] PNGLR 135, The State v Bernard Konombo (21/11/97) N1742, The State v Louise Paraka (24/01/02) N2317, James Mora Meaoa v The State [1996] PNGLR 280, The State v Eddie Peter (No 2) (12/10/01) N2297, Gimble v The State [1988–89] PNGLR 271, The State v Paul Maima Yogol & Anor (21/05/04) N2583, Rudy Yekat v The State (22/11/01) SC665, Allan Peter Utieng v The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000, The State v Lucas Yovura (29/04/03) N2366, The State v Kenneth Penias [1994] PNGLR 48, Seo Ross v The State (30/04/99) SC605, The State v Donald Poni (32/09/04) CR 552 of 2001 referred to

___________________________

N2684

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1642 of 2003

THE STATE

-V-

KEMAI LUMOU

LORENGAU: KANDAKASI, J.

2004: 17th and 23rd September

CRIMINAL LAW –Sentence – Sexual penetration of a girl under 16 years – No physical injuries - Facts disclose case of rape – Offence committed in breach of trust as uncle – Conviction after trial – First time offender – Aggravating factors outweighing those in mitigation – 17 years imposed - Sections 229A of Criminal Code.

Cases cited:

The State v. Peter Lare (20/05/04) N2557.

The State v. Peter Yawoma N2032.

The State v. Nivi Araba (22/04/99) N1849.

The State v. Damien Mangawi (13/06/03) N2419.

The State v. Dii Gideon (05/03/02) N2335.

The Secretary for Law v. Kwauga [1974] PNGLR 135.

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

The State v. Louise Paraka (24/01/02) N2317.

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

The State v. Eddie Peter (No 2) (12/10/01) N2297.

Gimble v The State [1988-89] PNGLR 271.

The State v. Paul Maima Yogol & Anor (21/05/04) N2583.

Rudy Yekat v. The State (22/11/01) SC665.

Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.

The State v. Lucas Yovura (29/04/03) N2366.

The State v. Kenneth Penias [1994] PNGLR 48.

Seo Ross v. The State (30/04/99) SC605.

The State v. Donald Poni (32/09/04) CR 552 of 2001.

Counsels:

A. Kupmain the State.

A. Raymond for the Prisoner.

23rd September 2004

KANDAKASI J: On Friday 17th last week, this Court found you guilty on one charge of sexual penetration of a girl under the age of 16 years. You committed the offence against the victim (named) a niece to you on 02nd June 2003 at your village of Karun, Lorengau, Manus Province.

According to the evidence, the Court decided to accept following the trial, the victim was heading for her school, then, doing grade 6 primary school at the village school. You had gone ahead of her and hid amongst some bamboo until the victim got to where you were. When she turned up, you jumped on her, grabbed her, and tried to take her into the nearby bushes. As you did that, she tried to shout for help but you threatened to cut her with a bush knife and shut her month, thereby effectively preventing her from calling for help. You then proceeded to hold onto her breasts and asked her to remove her clothes, which she did not do. Therefore, you removed her short and pushed her onto the ground. As she was on the ground, you pulled your short up, pulled your penis out, inserted it into her vagina, and proceeded to have sexual intercourse with her until you satisfied yourself.

After having helped yourself, you told the victim to go to her school and come back to you later after school and you will tell her a secret. The victim instead, cried to her aunt who asked her to follow her to the school. However, because of what you did to her, she told her aunt that she could not go to school. So, her aunt took the victim to her younger aunt who took her to the hospital.

The victim identified you as an uncle on her mother’s side. You tried to demonstrate that that relationship was remote, when you went into evidence. However, in your address before sentence, you spoke of looking after the victim’s grandmother who is very sick and depends on you for her survival. You also tried to show that, the victim was 17 years old at the time of the offence despite her doing grade 6 primary school and other evidence including her physical appearance showing her as a girl of very tender age and well below the age of 16. The Court found that the victim was indeed under the age of 16 and accepted her evidence that she was 14 years old at the time of the offence.

On these facts, I found that, you in fact committed the offence of rape upon the victim who was a very close relative of yours. I also found that, of the two of you, you were much older than the victim was, with an age difference of 8 years.

The State however, had you charged with sexual penetration of a girl under the age of 16 years contrary to s. 229A (1) of the Criminal Code instead of rape under s. 347 of the Code. Accordingly, you were convicted on the charge actually presented against you.

The Offence and Sentencing Tariff

Section 229A of the Code creates and prescribes the penalty for the offence of sexual penetration of a girl under the age of 16 years in the following terms:

“229A. Sexual penetration of a child.

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) If, at 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, subject to Section 19, to imprisonment for life.”

This was a new provision introduced by s. 15 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No.27 of 2002) by way of an amendment to the Code. As I noted in The State v. Peter Lare (20/05/04) N2557, this change in the law came about out of a growing concern over an ever increasing and prevalent sexual offences and crimes against children. That concern is both PNG and a worldwide one because the victims of such offences are vulnerable and are not able to defend themselves. I noted also that, in enacting this provision and its penalty in this way, Parliament considered that a sexual offence against a female child under the age of 16 years very serious. They are the country’s future leaders and people of tomorrow. In that context, I noted further that, it is an accepted medical or scientific fact that whatever happens in a person’s earlier life remains long in their memories even though there might be no obvious physical injury. This is a serious factor in PNG because, unlike countries like Australia, there is no readily available specialized medical services to help the victims to recover from the effects of such crimes against them: The State v. Peter Yawoma N2032 and The State v. Nivi Araba (22/04/99) N1849.

At the same time, I noted that these changes in the legislation also represent an action by Parliament against past sentences not deterring offenders like you and other would be offenders. Many judgments have acknowledged this failure of the past sentences: see for example The State v. Damien Mangawi (13/06/03) N2419 and The State v. Dii Gideon (05/03/02) N2335.

I then reviewed the kind of sentences imposed prior to...