The State v Peter Lare (2004) N2557

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 20 May 2004
• Citation: (2004) N2557
• Court: National Court
• Year: 2004
• Judgement Number: N2557

Full Title: The State v Peter Lare (2004) N2557

National Court: Kandakasi J

Judgment Delivered: 20 May 2004

1 CRIMINAL LAW—Sentence—Unlawful carnal knowledge of girl under 12 years—Guilty plea—Offender with no prior convictions—Substantial age difference between prisoner and victim—Offences committed in breach of trust situation—No expression of remorse—Need and call for stiffer penalties against persons offending against children considered—A punitive and deterrent sentence called for—Sentence of 12 years imprisonment imposed—Criminal Code s213 and s19.

2 The State v Peter Yawoma (2001) N2032, The State v Bernard Konombo (1997) N1742, James Mora Meaoa v The State [1996] PNGLR 280, The State v Eddie Peter (No 2) (2001) N2297, The State v Edward Toude (No 2) (2001) N2299, Mary Bomai Michael v The State (2004) SC737, The State v Louise Paraka (2002) N2317, The State v Amos Kiap (2003) N2452, The State v Julius Ombi (No 2) (2004) N2552, The State v Garry Sasoropa (No 2) (2004) N2569, The State v Dii Gideon (2002) N2335, The State v Nivi Araba (1999) N1849 referred to

Decision on Sentence

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 384 of 2004

THE STATE

-V-

PETER LARE

GOROKA: KANDAKASI, J.

2004: 10th and 20th May

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Unlawful carnal knowledge of girl under 12 years – Guilty plea – Offender with no prior convictions - Substantial age difference between prisoner and victim – Offences committed in breach of trust situation – No expression of remorse – Need and call for stiffer penalties against persons offending against children considered - A punitive and deterrent sentence called for – Sentence of 12 years imprisonment imposed - Criminal Code ss. 213 and 19.

Cases cited:

The State v. Peter Yawoma (Unreported judgment) N2032.

The State v. Joseph Minjihau (unreported judgment) N2243.

The State v. Moki Lepi (No. 2) (22/07/02) N2278.

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

John Aubuku -v- The State [1987] PNGLR 267.

The State -v- Sotie Apusa [1989] PNGLR 170.

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

Thomas Waim v. The State (02/05/97) SC519.

Eddie Peter v. The State (2) N2297.

The State v. Edward Toude & Ors (2) N2299 .

The State v. Otto Paulus (21/05/02) CR NO. 51 of 2002.

Grayson Andowa -v- The State (01/10/98) SC 576.

Counsels:

N. Miviri for the State

M. Apie’e for the Accused

20th May, 2004

KANDAKASI J: You pleaded guilty to one charge of sexual penetration of a girl (named but identified in this judgment only as the victim) under the age of sixteen (16) years. After having satisfied myself that it was save to accept you guilty following admission with your consent, the District Court depositions and a consideration of the same, I had you convicted of that charge. I then heard you in your allocutus and your lawyer and that of the State and reserved a decision on your sentence. This is now the Court’s decision on your sentence.

Relevant Facts

The facts supporting the charge and your conviction are these. Between 1st January 2001 and 29th January 2004, you had various sexual intercourses with a small girl then ten (10) years old. The background to these acts of your sexual intercourse is this. Both of the victim’s parents passed away when she was a baby. Following that, you and your wife, who is the victim’s aunt, adopted her. She thus grew up in your home.

In 2001, you started and continued to take her to the river for fishing and into the bushes looking for mushrooms, on journeys along the roadside. Witnesses confirm that you spent more time with the victim and not your wife. During these outings and even in the house, you started to play around with her vagina using your finger and kiss her. Around this time, when the victim tried to be with her peer group playing children’s games you used to call be back and would not allow her out of your sight.

The victim wanted to report what you were doing to her to her aunt but you prevented her by giving her K2.00s and K1.00 from time to time and told her that if she did report you, they will take you to the Court. If that happened the victim was fearful, of losing you as the only person would was supporting her could turn to for her care and up keep.

In January 2003, your playing with the victim’s vagina and kissing her turned into sexual intercourses with her. These sexual intercourses took place in the bushes, riverside, on the side of the road, and even in the house when your wife and her aunt was sleeping. You continued to have sexual intercourses with her for the whole of the year 2003 and carried over into January 2004.

On the 31st of January 2004, early in the morning, the victim went with her elder sister to their village. There, they stayed and after they had cooked some food and had eaten them, you called out for the victim several times. The uncle in whose house she was in got angry over the way you called and argued with you. In the course of the argument, her uncle made the point that the victim had every right to stay with him. Immediately after the argument with you, the uncle asked the victim as to what was going on between you and her as he had been suspicious of an intimate relationship based on your movements and the way you had behaved. That is well the victim everything that you had been doing to her up until the sexual intercourse in January of 2004.

You eventually learned of the victim reporting your acts to her uncles and tried to escape back into your own village Kafetisu, in the Henganofi District. But the relatives of the victim could see what you were trying to do and stopped you and took you to the police station. Thereafter the police had you charged and brought to Court.

Meanwhile, the relatives of the victim took her to the hospital for a medical examination. A doctor carried out a medical examination of the victim. This revealed no physical injury to her vagina or any part of her body. However, the examination did reveal a sexually transmitted decease evidenced by the presence of a greenish purulent discharge and found that her hymen was missing.

The Offence

The charge against you is under s. 229A of the Criminal Code. This provision reads:

“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.”

Section 15 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No.27 of 2002) inserted this provision in the Criminal Code by way of an amendment to the Code. This amending legislation came about out of a growing concern over an ever increasing and prevalent sexual offences and crimes against the children. This concern was not only a local PNG concern but a world wide concern to protect the victims of such crimes particularly women, girls and children because of their vulnerability and therefore not able to defend themselves. The amendment also represents 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. Examples of such judgments to name only a few are: The State v. Damien Mangawi (Unreported judgment delivered on 13/06/03) N2419; The State v. Dii Gideon (Unreported judgment delivered on 05/03/02) N2335;

Given this, the question that necessarily arises is what kind or sorts of sentences were in the past that caused Parliament to enact the provisions of s. 229? Section 213 of the Code created and prescribed the penalty for the offence under consideration. That provision in relevant parts read:

“(1) A person who has unlawful carnal knowledge of a girl under the age of 12 years is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.”

In enacting this provision and its penalty in this way, Parliament considered then that a sexual offence against a female child under the age of 12...