The State v Pennias Mokei (No 2) (2004) N2635

• Jurisdiction: Papua New Guinea
• Citation: (2004) N2635
• Date: 26 August 2004
• Court: National Court
• Year: 2004

Full Title: The State v Pennias Mokei (No 2) (2004) N2635

National Court: Cannings J

Judgment Delivered: 26 August 2004

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—maximum penalty of imprisonment for life—decision–making process—significance of new law—factors relevant to sentence—application of factors—assessment of sentence—decision on sentence.

2 Simon Kama v The State (2004) SC740, The State v Luke Sitban (No 1) (2004) N2572 referred to

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Cannings J:

INTRODUCTION

This is a decision on sentence. The prisoner, Pennias Mokei, was convicted on 23 August 2004 of the offence of sexual penetration of a child under the age of 16 years. This is an offence under s229A(1) of the Criminal Code.

PENALTY REGIME

To determine the appropriate penalty it is necessary to have regard to s229A, s6A and s19 of the Criminal Code.

Starting point

S229A is the starting point. It states:

"(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 s 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 s19, to imprisonment for life."

The penalty regime therefore is:

• if, at the time of the offence, the child was aged 12 years or more AND there was not an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to 25 years imprisonment; but

• if, at the time of the offence, either the child was under the age of 12 years OR there was an existing relationship of trust, authority or dependency between the accused and the child, the offender is liable to life imprisonment.

Relationship of trust, authority or dependency

This term is defined by s6A of the Criminal Code, which states:

"(1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where—

(a) the accused is a parent, step–parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care and control."

Discretion as to penalty

Though s229A makes an offender liable for 25 years or life imprisonment, depending on the circumstances, s19(1)(a), s19(1)(d) and s19(6) confer a discretion on the Court to sentence the offender to a lesser term or to suspend part or all of the sentence.

MAXIMUM PENALTY IN THE PRESENT CASE

In this case the child who was sexually penetrated by the prisoner was over the age of 12 years. So the important matter to determine at the outset is whether, at the time of the offence, there was an existing relationship of trust, authority or dependency between them.

The offence was committed on 25 June 2003. The evidence revealed that at that time the prisoner was a member of the extended family of the Wani household at Masandanai Camp, Wewak. He was regarded as an uncle by the child in question. He was treated by other members of the family as if he was a member of their family. So for all intents and purposes the offender, Pennias Mokei, was an uncle to the child involved, the complainant...