The State v Ndrakum Pu–Uh (2005) N2949

• Jurisdiction: Papua New Guinea
• Date: 24 November 2005
• Citation: (2005) N2949
• Docket Number: Cr1551/2005
• Court: National Court
• Year: 2005

Full Title: Cr1551/2005; The State v Ndrakum Pu–Uh (2005) N2949

National Court: Lay J

Judgment Delivered: 24 November 2005

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—sentence on plea of guilty—first offender—defendant 34–38 years of age—victim 12 years of age—penetration with finger—torn hymen—victim virgin—existing relationship of trust—victim defendant's niece—no consent—apology not genuine—isolated incident—co–operation with police—offer but no actual compensation—pre–sentence report—sentence 4 years IHL.

2 The State v Peter Lare (2004) N2557, The State v Pennias Mokei (No 2), (2004) N2635, The State v Eddie Trosty (2004) N2681, The State v Kemai Lumou (2004) N2684, The State v Biason Benson Samson (2005) N2799, CR 236/2005 The State v Mathias Alois, (21/04/05), State v Thomas Angup (2005) N2830, State v Binga Thomas (2005) N2828, The State v Titus Soumi (2004) N2809, State v Tobby Tani N2063, R v Gobai Vagi [1973] PNGLR 30, Public Prosecutor v Tom Ake [1978] PNGLR 469, Law v Deed [1970] SASR 377, Koniel Alar and Hosea Biu v State [1979] PNGLR 300, Imiyo Wamelav The State [1982] PNGLR 269 referred to

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Lay J: On a plea of guilty the defendant, aged 38 years, has been convicted of one count of sexual penetration in breach of trust contrary to the provisions of s229A(1) and (3).

The facts put to the defendant on his arraignment were that on 2 July 2005 at night at Katen Tingau village the defendant met his victim on the road. The accused took the victim to a dark spot and inserted his finger into the victim's vagina. The victim was just beyond 12 years of age at the time. The victim was taken to the hospital and the medical report describes a torn hymen. The defendant is an uncle to the victim.

On his allocutus the defendant said: "I want to apologise for what I have done and ask for mercy. I want the court to allow me to go back and do something such as compensation seeing we are relatives. I am married, I have 4 children. 2 are in school and 2 in the village. I am working with TSL Construction."

The Defendants lawyer submitted that the defendant is 34 years old, ( in the record of interview the defendant says he is 38 years of age) his first child is aged 16 years in grade 7, 2nd child in elementary school. His mother is alive his father deceased. He is 4th in a family of 8. He attends the Evangelical Lutheran Church. He was educated to grade 6 then as a mechanic at vocational school. He was employed by Department of Works as a mechanic from 1983–1991. He had employment 1998–2001 as a security guard and from 2004 as a mechanic with TSC Construction.

The defendant was granted bail after 2 months pre trial custody.

It was submitted that I should take into account the following in mitigation:

The guilty plea, its consistency with the general admissions made in the defendant's record of interview, his apology to the court, his request to be allowed to make compensation, he is a first offender, an industrious man who left school at grade 6, became a mechanic and has had employment most of the time since 1983.

It was further submitted that I should note that there was no detail of the relationship of trust provided by the State that the offence took place close to a residence and I should accept, from allegations in the record of interview that the victim instigated sexual touching, that there was some element of consent.

I was urged to disregard the allegations of force in the depositions. I should draw the conclusion that the blood on the medical officers examination glove after vaginal examination was from the tearing of the victim's hymen.

I was referred to State v Titus Soumi N2809 (22/09/05) (Cannings J); The State v Peter Lare (2004) N2557 (Kandakasi J); State v Pennias Mokei (No 2) N2635 (Cannings J) and State v Eddie Trosty (10/9/04) (Kandakasi J).

At the request of counsel for the defendant a pre sentence report was requested.

The Law

It is now over 2 years since Parliament amended the Criminal Code to provide a large number of new offences to protect children, of which s229A is one. A person who sexual penetrates a child under 16 years of age commits a crime and if there was an existing relationship of trust between defendant and victim the maximum penalty for the crime is life imprisonment. Thus it is in the same category of crime as aggravated rape or murder. As a number of judges have observed, this is an indication that the people of Papua New Guinea want...