The State v Kemai Lumou (2004) N2684

• Jurisdiction: Papua New Guinea
• Citation: (2004) N2684
• Date: 23 September 2004
• Court: National Court
• Year: 2004

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 (2004) N2557, The State v Peter Yawoma (2001) N2032, The State v Nivi Araba [1999] PNGLR 131, The State v Damien Mangawi (2003) N2419, The State v Dii Gideon (2002) N2335, Secretary for Law v Kwauga [1974] PNGLR 135, The State v Bernard Konombo (1997) N1742, The State v Louise Paraka (2002) N2317, James Mora Meaoa v The State [1996] PNGLR 280, The State v Eddie Peter (No 2) (2001) N2297, Gimble v The State [1988–89] PNGLR 271, The State v Paul Maima Yogol (2004) N2583, Rudy Yekat v The State [2000] PNGLR 225, Allan Peter Utieng v The State (2000) SCR15 of 2000 (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on 23 November 2000), The State v Lucas Yovura (2003) N2366, The State v Kenneth Penias [1994] PNGLR 48, Seo Ross v The State (1999) SC605, The State v Donald Poni (2004) N2663 referred to

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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 2 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...