The State v Manfred Paina

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ.
• Judgment Date: 23 May 2014
• Docket Number: CR 54 OF 2013
• Citation: (2014) N5621
• Court: National Court
• Year: 2014
• Judgement Number: N5621

Full Title: CR 54 OF 2013; The State v Manfred Paina (2014) N5621

National Court: Toliken, AJ.

Judgment Delivered: 23 May 2014

N5621

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 54 OF 2013

THE STATE

-V-

MANFRED PAINA

Alotau: Toliken, AJ.

2014: 23rd May

CRIMINAL LAW – Sentence – Sexual Penetration – Stepfather/step daughter – Mitigating factors – Early guilty – First time offender – Remorse - Extenuating factor – Open and persistent hostility by victim towards prisoner for marrying victim’s mother – Aggravating factors – Close relationship of trust, authority and dependency – Prevalent offence – Appropriate sentence – 11years less pre-sentence custody period – Suspension inappropriate- Criminal Code act Ch. 262, s 229A (1)(3).

Cases Cited:

Yalibakut v The State (2006) SC 890

Stanley Sabiu v The State (2007) SC 866

The State v Peter Lare (2004) N2557

The State v Kemai Lumou (2004) N2684

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

The State v George Taunde (2005) N2807

The State v Binga Thomas (2005) N2828

The State v. John Ritsi Kutetoa (2005) N2814

The State v Tiama Esrom (2006) N3054

The State v Brown Kawage (2009) N3696

The State v Roy Lisenia; CR 645 of 2011(unreported and unnumbered

judgment dated 20th September 2011)

Counsel:

R. Luman, for the State

P. Palek, for the prisoner

JUDGMENT ON SENTENCE

23rd May, 2013

1. TOLIKEN, AJ: Manfred Paina, you pleaded guilty to the charge that:

“...On a date unknown in June 2012 at GADOVISU, RABARABA in Papua New Guinea [you] engaged in an act of sexual penetration with a child under the age of sixteen years, namely STELISA PAINA SIROPODI then aged 15 years old, by inserting his penis into her vagina.

AND AT THE TIME AFORESAID there was an existing relationship trust, authority and dependency between the said MANFRED PAINA and the said STELISA PAINA SIROPODI namely step father and step daughter.

2. This is an offence under Section 229A (1)(3) of the Criminal Code Act (as amended) (the Code) .

FACTS

3. The brief facts which you admitted and upon which I am about to sentence you are as follows:

The victim Stelisa Paina is your step daughter in that you are married to her biological mother. On an unknown date in June 2012 her mother was away at Dogura doing her market. At about midnight the victim was sleeping in her corner of your family home at Gadovisu when you went up to her and removed her cloths. She felt your presence and woke up. She told you that she would report you to her mother, however, you threatened her saying that you will stab her with a knife and then you proceeded to insert your penis into her vagina and then sexually penetrated her. Stelisa was then 15 years old. The State also said that as step father you were in a position of trust.

4. I entered a provisional plea of guilty plea. I confirmed it only after I had read the committal depositions and having satisfied myself that evidence supported the charge and your plea. I then convicted you.

ANTECEDENTS

5. You are 39 years old and come from Gadovisu village, Rabaraba, here in Milne Bay. You are married with 3 children and come from a large family of 4 brothers and 2 sisters. Your father is still alive but your mother is deceased. You are an Anglican but during custody awaiting trial you converted to Seventh Day Adventist Faith. You are a simple villager and were educated up to Grade 6 only. You have no prior convictions and you had been in custody for 1 year 9 nine months and 1 week awaiting your trial/sentence.

ALLOCUTUS

6. In your address to the Court, you said you were sorry for breaking God’s law and Papua New Guinea Law and for dishonouring the flag. You apologised for dishonouring the victim, your family, the community of Alotau District and the people of Milne Bay. You said that you acted out of frustration because of the disrespect the victim had shown you. You said she would get angry and try to stop you from sleeping with her mother and often asked you to leave her. You tried to appease her by giving her and her mother’s people a pig according to custom. That did not stop her and she continued to disrespect you even publicly. This is your first offence asked for forgiveness and you asked to be placed on good behaviour bond or probation.

SUBMISSIONS

7. Your lawyer submitted that yours is not a worst case. He said you committed the offence out of frustration because of victim’s disrespect towards you despite your having killed a pig for her line for you to accept you. He cited several mitigating factors in your favour. These are that you’re a simple villager having dropped out of Grade 6, are a first time offender, you entered an early plea and that you have shown remorse for your offence. Further more you co-operated with the police by making early admissions to them and you maintained that during the committal hearing. The victim did not contract any Sexually Transmitted Infections or fall pregnant.

8. Mr. Palek conceded, though, that you were in a position of trust, authority and dependency and that this is a very prevalent offence.

Counsel cited several cases to me which he said are similar to yours, three of the more relevant ones being The State v Tiama Esrom (2006) N3054, The State v. John Ritsi Kutetoa (2005) N2814 and The State –v- Pennias Mokei (No.2) (2004) N2635. I will presently discuss these cases. Counsel therefore submitted that an appropriate sentence for you should be between 8 – 12 years.

9. Mr. Luman on behalf of the State agreed that yours is not the worst kind. However, he said it was aggravated by the fact that you were in a position of trust – a very close one - that of step-father/step-daughter. The offence is also very prevalent and counsel said that frustration was not an excuse for your action. He said you had no right to do what you did and therefore the Court should not place any weight at all on your claim of frustration.

10. Counsel also cited a few cases which he said are cases in point that should assist the Court in deciding an appropriate sentence for you. These includes The State v Kemai Lumou (2004) N2684; The State v. John Ritsi Kutetoa (supra) and The State v Tiama Esrom (supra) which I will discuss further down in this judgment. The State therefore asked for a sentence between 10 – 17 years.

THE OFFENCE

11. Section 229A of the Code provides for the offence under consideration. It provides:-

“229A Sexual penetration of a child

(1) A person who engages in an act of sexual penetration of a child under the age of 16 is guilty of a crime.

Penalty: Subject to subsection (2) and (3) imprisonment for a term not exceeding 25 years.

(2) ....

(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 Section 19, to imprisonment for life”.

12. In The State v Roy Lisenia; CR 645 of 2011(unreported and unnumbered

Judgment dated 20th September 2011) a case of an uncle/niece relationship I said:

“... it has been said in numerous times and cases by this court, and I say it again, that Parliament, in response to an escalating rate of sexual abuse of children, mostly of the most vulnerable and of the weaker sex, changed the law and imposed very stiff penalties to discourage the perpetration of this hideous crime against our children.

“The penalty under Subsection (3) of Section 229A of life imprisonment for cases involving existing relationships of trust, authority or dependency is the people’s expression through Parliament of their disapproval and abhorrence of this deviant behaviour which in itself sentences victims to a life time of guilt, worthlessness, despondency and loss of dignity and self respect not to mention the emotional stress that may keep recurring throughout life.

“To my mind, the primary purpose of such penalties for this offence must be to deter and punish offenders, so that our children are fully protected from selfish and inconsiderate members of society and more importantly, those who are expected to care, nurture, provide for and guide them during this most vulnerable phase in their young lives who abuse the trust reposed in them. ...”

SENTENCING TREND

13 Let me consider a few cases to see the kind of sentences that this court has been imposing for this offence.

1. The State v Pennias Mokei (No. 2) (supra): There the 33 year old

prisoner was convicted after trial for sexually penetrating his 13 year old niece. The act was non-consensual, no violence was used, no compensation was paid but he co-operated with the police. He was sentenced to 15 years.

2. The State v Tiama Esrom (supra): There a grandfather of between 50 -60 years old sexually penetrated his 9 year old daughter. He was sentenced to 12 years, two of which were suspended with conditions.

3. The State v Kemai Lumou (supra). There, the Court imposed a...