The State v Luke Toyana Gisigesi and Joseph Mwaisiga (2010) N4124

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 12 August 2010
• Citation: (2010) N4124
• Docket Number: CR 436 OF 2007
• Year: 2010

Full Title: CR 436 OF 2007; The State v Luke Toyana Gisigesi and Joseph Mwaisiga (2010) N4124

National Court: Hartshorn J

Judgment Delivered: 12 August 2010

CRIMINAL LAW—s229A (1) Criminal Code—Sexual Penetration of child under the age of 16 years—Conviction after trial—Penalty to be imposed

Facts:

The two accused were convicted after a trial for the offence of sexual penetration contrary to s229A (1) of the Criminal Code Act. The victim was

14 year old at the time of the offence. She is believed to have been the girlfriend of one of the co-accused.

Held:

1. An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered (The State v. Lucas Yovura (2003) N2366, per Kandakasi J)

2. The sentence imposed upon Luke Gisigesi is 9 years imprisonment with hard labour.

3. The sentence imposed upon Joseph Mwaisiga is 11 years imprisonment with hard labour.

4. Time spent in pre-trial custody shall be deducted

Cases cited:

The State v Lucas Yovura (2003) N2366; The State v Eddie Trosty (2004) N2681; Stanley Sabiu v The State (2007) SC866; The State v Philip Soni (2008) N3694; The State v Brown Kawage (2009) N3696; The State v Simam July Melly (No 2) (2009) N3779

12th August, 2010

1. HARTSHORN J. The two accused have been convicted of the charge of sexually penetrating a child under the age of 16 years pursuant to s229A (1) Criminal Code. The crime occurred on 5th July 2006 at Bwekwau, Losuia, Milne Bay Province. The child was aged 14 years 8 months at the time.

2. The brief facts are that at about 7pm on 5th July 2006 the accused Luke Toyana Gisigesi (Gisigesi), had sex with the complainant. When Gisigesi had finished, the accused Joseph Mwaisiga (Mwaisiga) appeared, grabbed the legs of the complainant and also had sex with her. Both accused sexually penetrated the victim contrary to s229A (1) Criminal Code.

3. The penalty is prescribed in s. 229A (1) as subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years. As the victim was not under the age of 12 years and there was no existing relationship of trust, authority or dependency contained in the indictment, the maximum penalty of life imprisonment does not apply.

Circumstances of the offenders

4. Gisigesi is now about 23 years of age being 19 years of age at the time of the incident. He is single. His parents are alive, he is the oldest of three children and a member of the United Church. He does not have any previous convictions. He...