The State v Pennias Mokei (No 2) (2004) N2635

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 August 2004
• Citation: (2004) N2635
• Court: National Court
• Year: 2004
• Judgement Number: N2635

Full Title: The State v Pennias Mokei (No 2) (2004) N2635

National Court: Cannings J

Judgment Delivered: 26 August 2004

1 Criminal Law—indictable offence—Criminal Code, Division IV.2A—Sexual Offences Against Children—s229A, engaging in act of sexual penetration with a child under the age of 16 years—maximum penalty of imprisonment for life—decision–making process—significance of new law—factors relevant to sentence—application of factors—assessment of sentence—decision on sentence.

2 Simon Kama v The State (2004) SC740, The State v Luke Sitban (2004) N2572 referred to

___________________________

N2635

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 459 0F 2004

THE STATE

V

PENNIAS MOKEI (NO 2)

WEWAK : CANNINGS J

23, 26 AUGUST 2004

Criminal Law – indictable offence – Criminal Code, Division IV.2A – Sexual Offences Against Children – Section 229A, engaging in act of sexual penetration with a child under the age of 16 years – maximum penalty of imprisonment for life – decision-making process – significance of new law – factors relevant to sentence – application of factors – assessment of sentence – decision on sentence.

Mr J Wala for the State

Mr L Siminji for the accused

Cases cited

Simon Kama v The State (2004) SC740

The State v Luke Sitban (2004) N2572

CANNINGS J:

INTRODUCTION

This is a decision on sentence. The prisoner, Pennias Mokei, was convicted on 23 August 2004 of the offence of sexual penetration of a child under the age of 16 years. This is an offence under Section 229A(1) of the Criminal Code.

PENALTY REGIME

To determine the appropriate penalty it is necessary to have regard to Sections 229A, 6A and 19 of the Criminal Code.

Starting point

Section 229A is the starting point. It states:

(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.

The penalty regime therefore is:

·if, at the time of the offence, the child was aged 12 years or more AND there was not an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to 25 years imprisonment; but

·if, at the time of the offence, either the child was under the age of 12 years OR there was an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to life imprisonment.

Relationship of trust, authority or dependency

This term is defined by Section 6A of the Criminal Code, which states:

(1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where—

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care and control.

Discretion as to penalty

Though Section 229A makes an offender liable for 25 years or life imprisonment, depending on the circumstances, Sections 19(1)(a), 19(1)(d) and 19(6) confer a discretion on the Court to sentence the offender to a lesser term or to suspend part or all of the sentence.

MAXIMUM PENALTY IN THE PRESENT CASE

In this case the child who was sexually penetrated by the prisoner was over the age of 12 years. So the important matter to determine at the outset is whether, at the time of the offence, there was an existing relationship of trust, authority or dependency between them.

The offence was committed on 25 June 2003. The evidence revealed that at that time the prisoner was a member of the extended family of the Wani household at Masandanai Camp, Wewak. He was regarded as an uncle by the child in question. He was treated by other members of the family as if he was a member of their family. So for all intents and purposes the offender, Pennias Mokei, was an uncle to the child involved, the complainant. In his submissions on penalty Mr Siminji, for the prisoner, conceded this point. Accordingly the Court finds that there was an existing relationship of trust, authority or dependency by virtue of Section 6A(2)(c).

This means that the prisoner is liable to imprisonment for life, under Section 229A(3).

DECISION-MAKING PROCESS

In making a decision on sentence I adopted the following decision-making process:

1 general observations are made on the significance of the new law and the seriousness of the offence;

2 the prisoner’s antecedents are set out;

3 the prisoner’s statement on allocutus is set out;

4 the submissions of counsel for the prisoner and counsel for the State are set out;

5 the factors that, in my assessment, need to be taken into account in this type of case when deciding on sentence are set out;

6 those factors are applied to this case;

7 a head sentence is assessed;

8 consideration is given to whether part or all of the sentence should be suspended; and

9 the formal decision on sentence is summarised.

SIGNIFICANCE OF NEW LAW

In Papua New Guinea today the abuse, in particular sexual abuse, of children has become a burning issue. This came to the fore two years ago when the Parliament made significant amendments to the Criminal Code. Two new divisions were added.

Division IV.2A – sexual offences against children

This contains the following sections:

229A – sexual penetration of a child [the offence of which the prisoner has been convicted]

229B – sexual touching

229C – indecent act directed at a child

229D – persistent sexual abuse of a child

229E – abuse of trust, authority or dependency

229F – consent no defence

229G – defence – marriage

229H – corroboration not required

229I – rule of evidence.

Division IV.2B – commercial sexual exploitation of children

This contains the following sections:

229J – interpretation

229K – obtaining the services of a child prostitute

229L – offering or engaging a child for prostitution

229M – facilitating or allowing child prostitution

229N – receiving a benefit from child prostitution

229O – permitting premises to be used for child prostitution

229P – mistake as to age

229Q – child not to be charged

229R – children not to be used for pornographic purposes

229S – producing and distributing child pornography

229T – possession of child pornography

229U – defence of innocent purpose

229V – defence of official use.

Purpose and policy of new law

The number of new provisions that have been added to the Criminal Code and their subject matter indicate the purpose of these provisions: to protect children against sexual exploitation and abuse. This has been done by creating new, more specific offences and by making offenders liable to stronger penalties.

Two years ago the People of Papua New Guinea decided through their duly elected representatives in the National Parliament to change the law and express their abhorrence of this sort of conduct. The People have indicated that they will not tolerate children being abused, particularly by those in a position of trust. This is recognition of the central role that children play in all societies and cultures in Papua New Guinea. In Papua New Guinea children are treated like kings and queens. They are the future of Papua New Guinea and the People depend on them and their upbringing.

The...