The State v Saperus Yalibakut (2005) N2957

• Jurisdiction: Papua New Guinea
• Date: 26 September 2005
• Citation: (2005) N2957
• Docket Number: CR No 1476 of 2005
• Court: National Court
• Year: 2005

Full Title: CR No 1476 of 2005; The State v Saperus Yalibakut (2005) N2957

National Court: Kandakasi J

Judgment Delivered: 23 and 26 September 2005

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—Guilty plea—First time offender—Aggravating factors outweighing those in mitigation—17 years imposed—s229A of Criminal Code.

2 The State v Nason Samban (2004) N2598, The State v Peter Yawoma (2001) N2032, The State v Attiock Ishmel (2001) N2294, Sakarowa Koe v The State (2004) SC739, The State v Jason Dongoia (13/12/00) N2038, The State v Eddie Trosty (2004) N2681, The State v Peter Lare (2004) N2557, The State v Kemai Lumou (2004) N2684, State v Thomas Angup (2005) N2830, The State v John Ritsi Kutetoa (2005) N2814, The State v Eki Kondi & Ors. (No 2) (25/03/04) N2543, The State v Garry Sasoropa & 2 Ors (No 2) (29/04/04) N2569, Ian Napoleon Setep v The State (18/05/01) SC666, The State v Joseph Minjihau (24/05/02) N2243, James Mora Meaoa v The State [1996] PNGLR 280, The State v Eddie Peter (No 2) (2001) N2297, The State v Kenneth Penias [1994] PNGLR 48, Seo Ross v The State (1999) SC605 referred to

DECISION ON SENTENCE

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Kandakasi J: You pleaded guilty to one charge of sexual penetration of a girl under the age of 16 years, contrary to s229A of the Criminal Code.

The facts to which you pleaded guilty are these, on Saturday 16 April 2005, at Kuminimbus village, Maprik, East Sepik Province, around 11:00am, you met the victim (named) who was returning from a visit to her aunt at the Amaku river. You asked the victim to go to your house, who initially refused but you eventually managed to persuade her to do so and she did.

When at your house you asked her to get into the house and into your bedroom. Again, she initially refused but you managed to persuade her to get into your house and then into your bedroom. Once in the bedroom, you caused the victim to lie down on your bed after you removed her clothes forcefully and slapped her with your hand when she refused to comply. Thereafter, you proceeded to have sexual intercourse with her. As you were in the process of having sexual intercourse with the victim, you heard your wife coming, so you quickly put on your trousers and went and sat at the doorway after having directed the victim to pretend to attend to sorting out your vanilla beans. Your wife however, managed to find your underwear sticking out of your pocket which was wet with sperm. Your wife proceeded to enquire of the victim as to what you did with her and she told her that you raped her.

Your wife eventually reported you to the authorities. This led to your arrest and being charged with the offence of sexual penetration. These facts and other evidence on file, disclose a possible case of rape of the victim. However, these facts were omitted and were not included in your arraignment and charge for the purposes of securing, I believe your guilty plea to the charge presented against you.

I had a similar situation in a number of cases before. A more recent one was in the case of The State v Nason Samban N2598. There, I turned to my judgment in The State v Peter Yawoma (2001) N2032, where I said:

" . . . [W]here the facts of a case disclose a more serious offence such as rape but for a plea bargain as in the present case, the maximum prescribed term of 5 years should be imposed."

In The State v Attiock Ishmel (2001) N2294, I provided the reasons for taking that view as follows:

"No...