The State v Ezra Hiviki (2004) N2548

• Jurisdiction: Papua New Guinea
• Citation: (2004) N2548
• Date: 29 April 2004
• Court: National Court
• Year: 2004

Full Title: The State v Ezra Hiviki (2004) N2548

National Court: Kandakasi J

Judgment Delivered: 29 April 2004

1 CRIMINAL LAW—Sentence—Rape of 10 years old girl by older relative—Breach of trust—Vaginal injuries caused requiring medical repair—Guilty plea—Expression of remorse—Whether sufficient—First time young offender—Criminal Code s347(1) as amended.

2 James Mora Meaoa v The State [1996] PNGLR 280, John Aubuku v The State [1987] PNGLR 267, Thomas Waim v The State (1997) SC519, Lawrence Hindemba v The State (1998) SC593, The State v Eddie Peter (No 2) (2001) N2297, Ian Napoleon Setep v The State (2001) SC666, The State v Kunija Osake (2003) N2380, The State v Pais Steven Sow (2004) N2588, The State v Junior Apen Sibu (No 2) (2004) N2567 referred to

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Kandakasi J: You pleaded guilty to a charge of rape of your own cousin sister (identified only as victim for her protection) during the night of 4 October 2003, at the Second Police Barracks here in Popondetta. The victim was 10 years old.

Relevant Facts

You committed the offence against the victim who was then fast a sleep in the night. You entered her room and locked it from the inside. You then reached the victim, removed her trousers and proceeded to forcefully, have sexual intercourse with her. Your actions caused pains to the victim and she called out for her mother three times. When her parents enquired as to what was happening, you told them that the victim must have been having a dream and left her in the room and you went to the house wind and sat there. Meanwhile, her mother went to her daughter's aid but by the time she got there, the victim had gone to the toilet. As the victim came out of the toilet, she noticed that there was blood on her trousers. Thereafter, the mother with the help of a Mathew took the victim to the hospital.

At the hospital, the doctor found that the victim's hymen was torn as well as her vaginal wall. This led to the bleeding in her vagina. She received a suturing of her torn vaginal wall and some antibiotics. The hospital discharged her on the following day.

Allocutus and Submissions

The Court administered your right to address the Court on sentence. In exercise of that right, you said sorry without more to the victim, her parents, the Court and God. Then you asked for leniency in terms of a suspended sentence with probation.

Your lawyer then made submissions on your behalf adding that you and the victim are close relatives, in fact cousins. You were sixteen (16) years old, while your victim was ten (10) years old. Therefore, there was an age difference of about six (6) years. You come from Hojavahambo village, here in the Oro Province. Grade 4 is the highest level of formal education you have reached. You are single and this is your first ever offence. Your lawyer also added that, you pleaded guilty to the charge, which indicates your acceptance of responsibility and effectively avoid the calling of the victim to testify against you and in the process relive your rape of her.

Further, your lawyer added that, you cooperated with police in terms of admitting to the commission of the offence, a position taken all the way up to this Court. He submitted too that, there were no aggravating features but conceded at the same time that, you committed an offence against a relative, thereby amounting to a commission of the other offence of incest. Hence, you breached the trust placed in you by the victim as a relative. In addition, the evidence shows that she suffered a torn vaginal wall that required suturing and medication.

Finally, you informed the Court that you remain in custody since your arrest on the day of the offence. So you have been in custody for more than 6 months now.

Your lawyer asked for a 6 years, part suspended and part...