The State v Brown Kawage (2009) N3696

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 10 June 2009
• Citation: (2009) N3696
• Docket Number: CR. NO. 812 OF 2008
• Court: National Court
• Year: 2009
• Judgement Number: N3696

Full Title: CR. NO. 812 OF 2008; The State v Brown Kawage (2009) N3696

National Court: David, J

Judgment Delivered: 10 June 2009

N3696

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 812 OF 2008

THE STATE

v

BROWN KAWAGE

Prisoner

Kundiawa: David, J

2009: 04th & 10th June

CRIMINAL LAW – Indictable offence – Criminal Code, Division IV.2A. Sexual Offences Against Children – S.229A, engaging in act of sexual penetration with a child under the age of 16 years – sentence on plea of guilty – prisoner aged 24 years, child aged 14 years – penetration of vagina with penis - lack of consent – isolated incident - existing relationship of trust, authority or dependency - victim prisoner’s niece – victim sleeping in prisoner’s house - aggravated physical violence – confinement before and after incident – wife chased away - premeditation inferred – trouble caused with victim and relatives since incident - cooperated with police by making early admissions – some compensation paid- expression of remorse genuine – prior conviction for stealing of ballot papers given no weight – effectively first offender - sentence of 14 years IHL.

Cases cited:

James Mora Meaoa v. The State [1996] PNGLR 280

Lawrence Hindemba v. The State (1998) SC593

The State v. Eddie Peter (No 2) (2001) N2297

The State v. Damien Mangawi (2003) N2419

The State v. Ben Simakot Simbu (No.2) (2004) N2546

The State v. Junior Apen Sibu (No.2) (2004) N2567.

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

The State v. Ezra Hiviki (2004) N2548

The State v. Peter Lare (2004) N2557,

The State v. Eddie Trosty (2004) N2681

The State v. Kemai Lumou (2004) N2684

The State v. John Ritsi Kutetoa (2005) N2814

The State v. Thomas Angup (2005) N2830

The State v. Stanely Sabiu, (2005) CR No. 1832 of 2005, Unreported Judgment delivered on 21 December 2005

The State v. Kaminiel Okole (2006) N3052

The State v. Tiama Esrom (2006) N3054

The State v. Siro Waida (2008) N3311

Counsel:

Mr. J. Waine, for the State

Mr. P. Kapi, for the Prisoner

DECISION ON SENTENCE

10 June, 2009

1. DAVID, J: INTRODUCTION: On Thursday, 4th June 2009, the State charged the Prisoner on indictment with one count of sexual penetration of a child under the age of sixteen (16) years pursuant to s.229A (1) of the Criminal Code as amended.

2. Several circumstances of aggravation were pleaded in the indictment. The State alleged that; the victim was then in a relationship of trust with the Prisoner; immediately before the commission of the offence, the Prisoner assaulted the victim; and that the Prisoner confined the victim before and after the commission of the offence.

3. I gave a brief judgment undertaking to give my detailed reasons later. This I now do.

BRIEF FACTS PRESENTED BY THE STATE

4. The brief facts put to the Prisoner on arraignment were these.

5. At the material time, the victim was aged fourteen (14) years old.

6. The Prisoner was related to the victim as an uncle. They are both from Mondia village.

7. Up until 26th June 2005, the victim and the Prisoner’s wife usually went around together and slept in one house. The house belonged to the Prisoner and his wife.

8. On 26th June 2005, sometime in the afternoon at about 6:00 pm or thereabouts, the Prisoner’s wife and the victim returned after being away for a couple of days and were in the house together with the Prisoner. He then left them for sometime to attend to some business. When he returned, he picked an argument with his wife. This led to the Prisoner attempting to assault his wife and chased her away. When he returned, he locked the door of the house. By that time, the victim had already gone to sleep.

9. In the middle of the night between 10:00 pm and 11:00 pm, the Prisoner went over to where the victim was sleeping and tried to take her clothes off and also attempted to sexually penetrate her. However, when the victim shouted, the Prisoner punched her on her face and covered her month preventing her from calling out for help. Because the victim was scared for her personal safety, the Prisoner took her clothes off and sexually penetrated her. After the Prisoner finished, he went to bed.

10. The victim could not escape because the door was locked and the key kept away. Next morning, the victim discovered that the key was attached to the lock. She was then able to escape and report the matter to relatives.

11. The victim received serious injuries to her vaginal area and suffered trauma as a result of the Prisoner sexually penetrating her.

GUILTY PLEA AND CONVICTION

12. Upon arraignment, the Prisoner pleaded guilty to the charge. Mr. Kapi of counsel for the Prisoner entered his appearance and informed the Court that he had no application to make in relation to the plea because it was consistent with his instructions. I then recorded a provisional guilty plea subject to my reading of the District Court Committal depositions. State Prosecutor, Mr. Waine of Counsel for the State then formally tendered the depositions which I read. I was satisfied that the evidence contained in the depositions supported the charge and therefore accepted the Prisoner’s guilty plea and convicted him of the charge.

EVIDENCE

13. The Record of Interview conducted between Detective First Constable Dokta Turumb and the Prisoner on 2nd August 2005 at the Kerowagi Police Station (the Record of Interview) which was attended by Senior Constable James Pohien as corroborator contains admissions by the Prisoner to committing the crime on Sunday, 26th June 2005 as alleged by the State in the brief facts. The Prisoner admits to; locking the victim in the house after she had been called into the house at about 06:00 pm; chasing his wife, Penny away after that; returning and assaulting the victim and covering her mouth with his hands; having sexual intercourse with the victim against her will which occurred at about 10:00 pm; and letting the victim out of the house at about 06:00 o’clock in the morning the next day.

14. In the Record of Interview, the Prisoner also admits assaulting the victim’s grandfather and his brother that day when they went to enquire with the Prisoner about the incident; and of assaulting the victim one (1) week later with a bush knife.

15. In the victim’s Affidavit sworn on 4th October 2005; she corroborates the admissions made by the Prisoner about the incident which occurred during the night after 06.00 pm on 26th June 2005; that she was aged fourteen (14) years; that she usually slept at the Prisoner’s house; and that the Prisoner was her uncle.

16. In the Affidavit of Eripui Degba sworn on 4th October 2005, he deposes that:-

· he was awakened by the victim early in the morning on Monday, 27th June 2005 at about 06:00 am and she told him about the incident.

· he then left his house, went and told his elder brother about the incident and they both went to the Prisoner’s house to enquire about the incident.

· at the Prisoner’s house, he assaulted both of them badly using a coffee stick and an axe. He sustained injuries to one of his arms while his brother sustained a cut on his face and a swollen back.

· The Prisoner was the victim’s uncle.

17. The Medical Report dated 8th August 2005 issued by Alua Bre of the Kerowagi District Health Services (the Medical Report) confirms that the victim attended the Kerowagi Health Centre on 27th June 2005 at about 03.00 pm complaining about being raped at about 10.00 pm on Sunday, 26th June 2005 and was given treatment. A vaginal examination was conducted which showed bleeding from the perineum caused by the tearing of the fourchette and bruising of the cervix. A swab taken for sperm count proved negative which was due to the delay in reporting the matter, but bacteria causing gonorrhea were discovered.

SETTLEMENT ORDER

18. Settlement Order No.A13572 dated 10th July 2005 (the Settlement Order) was tendered by consent. It was issued by the Dagle Mitna Village Court when it sat at Kewamugl. The terms of settlement were recorded in Tok Pisin and read as follows:-

“Long ai bilong Dagle Mitna Villis Kot, Brown Kawage I bin orait long olgeta kompensesen kot ibin makim long en. Brown Kawage kompensesenim K300.00 plas wanpela bikpela pik value K1,000.00. na olgeta lidas na komuniti I witnessim Irpui Degemba (Komplainent) i wanbel na kisim dispela kompensesen.” (sic)

ANTECEDENTS

19. According to the undated Antecedent Report, the Prisoner has a prior conviction. It reports that the Prisoner was convicted by the District Court in 1997 for stealing ballot papers and was convicted and sentenced to two (2) months imprisonment.

20. Other details contained in the report are that; the Prisoner is aged twenty three (23) years; he was born at Mondia in the Kerowagi District of Simbu Province and that is where he has resided since birth; his parents have lived in Mondia for the rest of their lives; he has been baptised into the Lutheran faith; he has received formal Grade 6 education; and that he was married to one Penny aged twenty (20) years and have no children.

ALLOCATUS

21. The Prisoner expressed remorse and then proceeded to ask the Court to take into account in his favour that; he was a young offender at the time; he was married and had children; he will not re-offend; he paid compensation to solve the problem between the victim and himself which is confirmed by the...