The State v Kilala Makile

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 01 November 2016
• Citation: (2016) N6507
• Court: National Court
• Year: 2016
• Judgement Number: N6507

Full : CR No 1166 of 2014; The State v Kilala Makile (2016) N6507

National Court: Anis AJ

Judgment Delivered: 1 November 2016

N6507

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1166 OF 2014

THE STATE

V

KILALA MAKILE

Kokopo: Anis AJ

2016: 10 October & 1st November

CRIMINAL LAW – Sentencing - sexual offence - persistent sexual abuse of a child - section 229D of the Criminal Code Act Chapter No. 262 - prisoner pleaded not guilty - prisoner found guilty of two (2) instances of persistent sexual abuse of a child below the age of 16 years old - prisoner maintained denial and showed no remorse - fitting punishment discussed and applied

Cases Cited:

State v. Alois Pidik (No.3) (2016) N6296

State v. Danny Tutuvo (2011) N4400

State v. Joe Ngotngot (2016) N6364

State v. Kuyaps Toki Jonathan (2008) N3315

State v. Lui Nicky, Giri Kivovon, Darius Vokina, Benjamin Pidik and Tommy Noah (2016) N6499

State v. Steven Makai (2010) N3914

Thress Kumbamong v. The State (2008) SC1017

Counsel:

M r L. Rangan, for the State

Ms J. Ainui, for the Prisoner

SENTENCE

1st November, 2016

1. ANIS AJ: Prisoner Kilalala Makile, on 23 September 2016, this Court convicted you for the offence of persistent sexual abuse of a child under the age of 16 years old, under section 229D of the Criminal Code Act Chapter No. 262 (Criminal Code Act).

2. The Court conducted your sentence hearing at 1:41pm on 10 October 2016. After that, the Court reserved its ruling to a date to be advised.

3. This is my ruling on your sentence.

FACTS

4. To protect the identity of the child, I will use the initials EV. The Court found you guilty of two instances. The first was in 2012 when EV was 12 years old. The Court found that in the evening on an unspecified date in 2012, at Rapitok village in East New Britain Province, you used a knife to threaten EV. The Court found that you ordered EV into a cocoa patch. There the Court found that you ordered EV to suck your penis and you later penetrated her vagina with your penis. The Court found that after the incident, you warned EV not to inform anyone or else you would cut her with a knife.

5. The second occasion occurred in 2013. The Court found that in the evening on an un-specified date at Rapitok village in East New Britain Province, EV and her niece went out to fetch water at a creek. EV was 13 years old at that time. The Court found that you appeared from the cocoa patch and you used a knife to threaten EV. You forced EV into the cocoa patch. Again, you force EV to suck your penis. You then pushed EV to the ground and the Court found that you penetrated her vagina with your penis. The Court found that you issued similar threats to EV that if she reported you that you would cut her with a knife. The Court found that upon fear of her life, EV did not report the incidents earlier to anyone.

ISSUES

6. The issues before this Court are:

(i) Whether this Court should impose upon you the maximum sentence of life imprisonment?

(ii) If not, what would be the fitting punishment for you?

(iii) Whether you are a suitable person for probation and if so what sort of probationary terms should the Court impose on you.

DETAILS, ANTECENDENT REPORT & ALLOCATUS

7. You are 49 years old. You are from Rapitok village in Kokopo, East New Britain Province. You are married and you have seven (7) children. You education attainment is grade 7. You are literate. You were once employed with G4S as a supervisor for 7 years. You left that employment in 2014. Only your mother, who is 80 years old, is alive. You have a brother and a sister but they both passed on.

8. You have no prior convictions.

9. During administration of allocatus, you told the Court and I read:

"I respect the Court and I also respect all of you. My last talk is that from this charge, I am not clear or understand. It is not true. God only knows and is my witness".

MITIGATION/AGGRAVATING FACTORS

10. I have considered the parties' submissions on mitigating and aggravating factors. My findings of them are as follows starting with mitigating factors:

• first time offender

• willingness to pay compensation of K3,000 and 500 fathoms

• the victim did not contract sexual transmitted disease or fall pregnant

11. I list the aggravating circumstances as follows:

• age disparity

• a relative and breach of trust

• force and weapons used

• two (2) occasions of penetrations through mouth and vagina

• evidence of sudden/negative impact on victim's behaviour

SUBMISSIONS ON SENTENCE

12. The defence submits that you should be sentenced to 14 years imprisonment. The defence also submits that the sentence should be partially suspended. And thirdly, the defence submits that compensation should be awarded against you to restore the relationship between the victim and her family with your family.

13. The prosecution submits that the Court should not award compensation since you still maintain that you are innocent. The prosecution submits that if compensation is to be considered, that the principles laid in the case of State v. Joe Ngotngot (2016) N6364 should be observed. I note that in that case, the National Court held amongst others and I read:

3. The Court should not ignore a victim's request or plea in a sentence hearing. In my opinion, before the Court decides for example not to award compensation contrary to the request of the victim, it should firstly rule out all reasonable considerations or possibilities on the subject matter. These include, in my opinion, considering:

(i) whether the victim's request for compensation is a fitting one for the type of offence committed;

(ii) whether the victim's request for compensation is reasonable or fair;

(iii) whether the victim's request for compensation would greatly benefit or assist the victim on matters or issues that have arisen as a direct result of the offence been committed on the victim; and

(iv) whether the prisoner is capable of paying the compensation that is being sought.

CASE AUTHORITIES

14. I will exercise my powers on sentencing pursuant to section 19 of the Criminal Code Act and also following what the Supreme Court has said in the case of Thress Kumbamong v. The State (2008) SC1017. In summary and on point, the Supreme Court therein re-emphasised the National Court's power on sentencing that is provided under section 19 of the Criminal Code Act. The Supreme Court said no tariffs set by a Supreme Court should dictate how a National Court is to or should fully utilise its powers under section 19 of the Criminal Code Act when the National Court is addressing or dealing with sentence.

15. I have considered similar case authorities in this jurisdiction. For this purpose, I have selected four (4) cases that I think are similar and appropriate for consideration. Let me discuss them.

16. The first case is the case of State v. Steven Makai (2010) N3914. The prisoner was charged under section 229D of the Criminal Code Act. He was charged for penile penetration of a minor who was 9 to 10 years old at that time. The prisoner denied the charge. He was tried and convicted of three (3) instances of sexual penetration under section 229D of the Criminal Code Act. The prisoner was about 30 years old at the time when he committed the offence. He was sentenced to 20 years imprisonment less the time he had spent in jail.

17. The second case is the case of State v. Danny Tutuvo (2011) N4400. The prisoner was charged under section 229D of the Criminal Code Act. He was 55 years old at the time when he committed the offence. The victim was 9 years old. The prisoner was not but was regarded as a grandfather to the victim and the family. The prisoner was found guilty of 4 instances of persistent sexual abuse of the victim. The Court found that on two (2) instances, the prisoner used his fingers to penetrate the victim's vagina. And the Court found that on two other instances, he penetrated her vagina with his penis. The Court found that the victim also contracted gonorrhoea and fell seriously ill as a result. The Court sentenced him to 18 years imprisonment less the time he had spent in jail.

18. The third case is the case of State v. Alois Pidik (No.3) (2016) N6296. The prisoner was charged under section 229D of the Criminal Code Act for persistent abuse of a child. The prisoner was the blood uncle of the victim. The prisoner was 53 years old at that time when he committed these offences against the victim. The victim was 11 years old at the time. The Court found that on more than one occasions, the prisoner used force and told the victim to suck his penis before he penetrated the victim's vagina with his penis. The victim said the prisoner forced her into these sexual acts and therefore she wanted the prisoner imprisoned for a long time. The prisoner's mother wanted compensation of K1,000 plus 100 fathoms or shell money. The Court sentenced the prisoner to 20 years imprisonment less the time he had spent in jail.

19. The fourth case is the case of State v. Kuyaps Toki Jonathan (2008) N3315. The prisoner pleaded guilty to...