The State v Siro Waida (2008) N3311

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 12 March 2008
• Citation: (2008) N3311
• Docket Number: CR NO. 257 of 2008
• Court: National Court
• Year: 2008
• Judgement Number: N3311

Full Title: CR NO. 257 of 2008; The State v Siro Waida (2008) N3311

National Court: Kandakasi, J

Judgment Delivered: 12 March 2008

N3311

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 257 of 2008

�

� THE STATE

-V-

SIRO WAIDA

Tabubil: Kandakasi, J.

2008: 7 and 12 March

� DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Particular offence – Sexual penetration of child under 16 – Breach of existing trust as first biological cousin – Use of threat and force – Victim becoming pregnant – No compensation paid – Guilty plea – First time offender – Prevalent offence – Sentence of 17 years imposed – Criminal Code s. 229A(1).

Papua New Guinea Cases Cited:

The State v. Eddie Trosty (10/09/04) N2681

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

The State v. Kemai Lumou (23/09/04) N2684

The State v. Thomas Angu (21/04/05) N2830

The State v. John Ritsi Kutetoa, (22/03/05) N2814

The State v Paul Nelson, (25/05/05) N2844

l Counsel:

J. Kesan, for the State.

P. Kapi, for the Prisoner.

12 March, 2007

1. KANDAKASI J: You pleaded guilty to a charge of sexual penetration contrary to s. 229A (1) and (3) of the Criminal Code. After receiving your address on sentence together with your lawyer and that of the State’s submissions, I adjourned to today for a decision on your sentence.

Issue Before the Court

2. The issue for the Court to decide is, what is an appropriate sentence for you? In order to properly determine that issue, I need to take into account the relevant facts and the circumstances in which you committed the offence, the offence and the sentencing trend, your personal and family backgrounds and the factors operating both in your favour as well as those operating against you.

Relevant Facts

3 Turning firstly to the relevant facts, I note that, sometime in February 2004, you met the victim (named) of your offence, who is your blood or biological first cousin. She was 14 years old at the time. You asked to have sexual intercourse with her, which she refused because of the close blood relationship. You did not accept that and persisted with your request. She did not give in. You did not respect and accept her response and the reasons she gave and went onto using a knife to threaten and force her into the nearby bushes and had sexual intercourse with her without her free consent. Evidence on the Court file shows that, you had repeated acts of sexual inter course with her in the same way until she became pregnant in January 2005 and she revealed that you were responsible. However, the State did not include the other sexual attacks of the victim, so I will not take that part of the facts into account and treat this as only one instance of sexual attack on the victim.

The Offence and Sentencing Trend

4 With the above facts in mind, I turn to a consideration of the offence and its sentencing trend and tariffs. When you did what you did, you broke the laws of our land. In particular, s. 229A of the Criminal Code which creates and prescribes the offence of sexual penetration of a child under 16 years of age as follows:

“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.”

5. As I have observed in one of the decisions I handed down during this circuit, this was an improvement and upgrading in terms of the penalty by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 by way of an amendment to the then existing law. Prior to the amendment, the prescribed maximum penalty for this offence was as low as 5 years. The amendment thus, increased the penalty to 25 years and where there is a breach of trust, up to a maximum of life imprisonment and made it apply irrespective of the sex of the victim.

6. I have expressed the view in a number of cases as in the case of The State v. Eddie Trosty,

1 (10/09/04) N2681.

1that in view of the reasons for the amendments to the law, sentences for the offence of sexual penetration of girls under the age of 16 must be beyond the maximum prescribed under the old law. I then decided to impose a sentence of 6 years on a guilty plea. The prisoner and his victim in that case, had a boyfriend and girlfriend relationship. The victim was 15 years old whilst the prisoner was 21 years old at the time of the offence. They had prior several consensual sexual intercourses. The prisoner did not cause any injuries to the victim. He also did not introduce the victim to any sexually transmitted disease or impregnated her. These factors influenced me to arrive at the sentence of 6 years.

7 Before that however, in The State v. Peter Lare,

2 (20/05/04) N2557.

2 I imposed a sentence of 20 years on an indictment presented under s. 229A (1). There, the prisoner was an uncle to the victim and he had several and or repeated acts of sexual penetration of the victim over a four year period. There was a substantial age difference between them. The prisoner was 40 years old whilst the victim was under 12 years of age. The prisoner did not express any genuine remorse, evidenced by a lack of payment of any form of compensation to the victim and her side. Further, the prisoner infected the victim with a sexually transmitted decease.

8 In arriving at that sentence, I noted that the:

“… amending legislation came about out of a growing concern over an ever increasing and prevalent sexual offences and crimes against 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.

No doubt, Parliament [was] …aware of the kind of sentences the Courts were imposing and more importantly those sentences failing to deter other men and older boys who were intent on committing this offence against small girls. Some of the cases that went before the Courts were actually rape and others were cases of incest in blatant breach of trust placed in the older offenders by the victims as close relatives. Parliament therefore felt the need, in my view, to re-emphasis the seriousness of the offence and re-enacted the offence and in terms of the particular wording in s. 229A. This enactment has come at a time when past sentences have certainly not deterred people like you from committing the offence despite all the concerns raised publicly both within our country and in the international arena”.

9 Later, in The State v Kemai Lumou,

3 (23/09/04) N2684.

3 I had regard to the above decision and the particular circumstances in which the prisoner committed the offence in the above case and then imposed a sentence of 17 years. There, the Court convicted the prisoner after a trial. The facts disclosed a rape of a niece by an uncle using a bush knife. The victim was much younger than the offender was. Despite this, the State charged him with sexual penetration and not rape under s.229A (1).

10 Sometime later, Mr. Justice Lay had regard to my decision in The State v. Peter Lare,

4 Supra note 2.

4 and imposed a sentence of 20 years for one out of a number of sexual offence charges in the case of The State v. Thomas Angup.

5 (21/04/05) N2830.

5 From the head note to that case, I note that, the defendant was convicted on his guilty plea to 1 count of sexual touching of a child under 12 years in 1998, 1 count of sexual penetration of a child under 12 years in 1998, 2 counts of sexual penetration of a child under 16 years, in 2000 and another one in 2003, on unspecified dates. The prisoner committed these offences in breach of an existing trust relationship. Clearly, the charges arose out of a pattern of sexual abuse of the victim over a period of 6 years. The victim became pregnant and bore a son before she reached age 16. Due to her pregnancy, the victim’s schooling got terminated prematurely.

11 Later on, Cannings J, in his judgment in The State v. John Ritsi Kutetoa,

6 (22/03/05) N2814.

6 cited the judgments in The State v. Peter Lare,

7 Supra note 2.

7 and The State v Kemai Lumou

8 Supra note 3.

8 and imposed a sentence of 17 years. There, the prisoner got his stepdaughter into a room in their house, where he sexually penetrated her. The victim was about 11...