The State v Ndrakum Pu–Uh (2005) N2949

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 24 November 2005
• Citation: (2005) N2949
• Docket Number: Cr1551/2005
• Court: National Court
• Year: 2005
• Judgement Number: N2949

Full Title: Cr1551/2005; The State v Ndrakum Pu–Uh (2005) N2949

National Court: Lay J

Judgment Delivered: 24 November 2005

N2949

PAPUA NEW GUINEA

NATIONAL COURT OF JUSTICE

CR1551/2005

THE STATE

AND

NDRAKUM PU-UH

LAY J: LORENGAU

2005: 8TH AND 24TH NOVEMBER

CRIMINAL LAW– Indictable offence-Criminal Code, Division IV.2A. Sexual Offences Against Children-Section 229A, engaging in act of sexual penetration with a child under the age of 16 years-sentence on plea of guilty-first offender-defendant 34-38 years of age-victim 12 years of age-penetration with finger-torn hymen-victim virgin-existing relationship of trust-victim defendant’s niece-no consent-apology not genuine-isolated incident-co-operation with police-offer but no actual compensation-pre-sentence report-sentence 4 years IHL.

Cases Cited:

1. The State v Peter Lare (2004) N2557

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

3. The State v Eddie Trosty, (2004) N2681;

4. The State v Kemai Lumou, (2004) N2684;

5. The State v Biason Benson Samson (2005) N2799;

6. CR 236/2005 The State V Mathias Alois, (21/04/05);

7. State v Thomas Angup (2005) N2830;

8. State v Binga Thomas (2005) N2828;

9. The State v Titus Soumi (2004) N2809;

10. State v Tobby Tani N2063;

11. R v Gobai Vagi [1973] PNGLR 30;

12. Public Prosecutor v Tom Ake [1978] PNGLR 469;

13. Law v Deed [1970] SASR 377;

14. Koniel Alar and Hosea Biu v State [1979] PNGLR 300;

15. Imiyo Wamelav The State [1982] PNGLR 269.

Counsel

Mr. Kaluwin for the State

Mr. L. Siminji for the Defendant

LAY J: On a plea of guilty the defendant, aged 38 years, has been convicted of one count of sexual penetration in breach of trust contrary to the provisions of s229A(1) and (3).

The facts put to the defendant on his arraignment were that on 2nd July 2005 at night at Katen Tingau village the defendant met his victim on the road. The accused took the victim to a dark spot and inserted his finger into the victim’s vagina. The victim was just beyond 12 years of age at the time. The victim was taken to the hospital and the medical report describes a torn hymen. The defendant is an uncle to the victim.

On his allocutus the defendant said: “I want to apologise for what I have done and ask for mercy. I want the court to allow me to go back and do something such as compensation seeing we are relatives. I am married, I have 4 children. 2 are in school and 2 in the village. I am working with TSL Construction.”

The Defendants lawyer submitted that the defendant is 34 years old, ( in the record of interview the defendant says he is 38 years of age) his first child is aged 16 years in grade 7, 2nd child in elementary school. His mother is alive his father deceased. He is 4th in a family of 8. He attends the Evangelical Lutheran Church. He was educated to grade 6 then as a mechanic at vocational school. He was employed by Department of Works as a mechanic from 1983-1991. He had employment 1998-2001 as a security guard and from 2004 as a mechanic with TSC Construction.

The defendant was granted bail after 2 months pre trial custody.

It was submitted that I should take into account the following in mitigation:

The guilty plea, its consistency with the general admissions made in the defendant’s record of interview, his apology to the court, his request to be allowed to make compensation, he is a first offender, an industrious man who left school at grade 6, became a mechanic and has had employment most of the time since 1983.

It was further submitted that I should note that there was no detail of the relationship of trust provided by the State that the offence took place close to a residence and I should accept, from allegations in the record of interview that the victim instigated sexual touching, that there was some element of consent.

I was urged to disregard the allegations of force in the depositions. I should draw the conclusion that the blood on the medical officers examination glove after vaginal examination was from the tearing of the victim’s hymen.

I was referred to State v Titus Soumi N2809 (22/09/05)(Cannings J) ; The State v Pete Lare N2557 (Kandakasi J); State v Pennias Mokei (No 2) N2635 (Cannings J) and State v Eddie Trosty (10/9/04) (Kandakasi J).

At the request of counsel for the defendant a pre sentence report was requested.

The Law

It is now over 2 years since Parliament amended the Criminal Code to provide a large number of new offences to protect children, of which s229A is one. A person who sexual penetrates a child under 16 years of age commits a crime and if there was an existing relationship of trust between defendant and victim the maximum penalty for the crime is life imprisonment. Thus it is in the same category of crime as aggravated rape or murder. As a number of judges have observed, this is an indication that the people of Papua New Guinea want the Court to treat the violation of children seriously.

Section 6 of the Criminal Code provides:

“ When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.”

It is clear therefore that the introduction of a finger into the vagina of a child, is, within the meaning of s6(b) and the Code “sexual penetration” unless for medical or hygene purposes.

In The State v Biason Benson Samson (2005) N2799 (Cannings J) some of the sentencing decisions under s229A were digested as follows:

Case Details Sentence

The State v Peter Lare Offender aged 40 charged with one count of 20 years
(2004) N2557, Kandakasi J, sexual penetration – victim, a girl, aged 12 –
Goroka offender was the girl’s adopted father – no
consent – no ggravated physical violence, but
offender passed sexually transmitted disease to
victim – part of pattern of persistent abuse over
a period of 2 years – serious betrayal of trust –
offender cooperated with police –Goroka
pleaded guilty – expressed remorse – no
compensation attempted – first offender –
offender labelled a sexual predator.

The State v Pennias Offender aged 33 charged with one count of 15 years
Mokei(No 2), (2004) sexual penetration – victim, a girl, aged 13 –
N2635, – Cannings J, offender was the girl’s uncle – no consent – no
aggravated physical violence – isolated
incident – serious betrayal of trust offender
cooperated with police – pleaded not guilty –
expressed remorse – no compensation
attempted –first offender – no trouble caused
with victim or Wewak family since
commission of offence.

The State v Eddie Trosty, Offender aged 21 at time of offence charged 6 years
(2004) N2681, Kandakasi J, with one count of sexual penetration – victim,
Lorengau a girl, aged 15 –victim was the offender’s
girlfriend – consensual sex –no aggravated
physical violence – part of a pattern of
persistent consensual sex – offender
cooperated with police – pleaded guilty –
expressed remorse – no compensation
attempted – first offender.

The State v Kemai Lumou, Offender aged 22 charged with one count of 17 years
(2004) N2684, Kandakasi sexual 17 years penetration – victim, a girl,
J, Lorengau aged 14 – offender was thegirl’s uncle – no
consent – aggravated physical violence: used
bushknife to threaten victim and sexual
penetration was forceful – no evidence of
physical injuries or infection of victim with
sexually transmitted disease – isolated incident
– serious betrayal of trust – offence committed
against a small pupil on her way to school –
offender did not cooperate with police: tried to
cover up his actions by claiming that victim
was his girlfriend, aged 17 and sex was
consensual – pleaded not guilty: victim forced
to relive crime – no evidence of offender
saying sorry to victim and her relatives – no
compensation attempted – first offender.

I add to those cases those decided since and my own numbered and unnumbered decisions:

The State v Biason Benson Samson (2005) N2799 (Cannings J)

sentence on plea of guilty – offender aged 17 years, child aged 13 years – lack of consent
– offender acted alone – no weapons used or aggravated physical violence – no physical
injury – no existing relationship of trust, authority or dependency – isolated incident –
offender did not surrender – cooperated with police – no trouble caused with victim since
the incident – nothing tangible done towards repairing his wrong – determination of
maximum penalty – expression of remorse – first offender – youthful offender – limited
educational background – starting point for head sentence – new law – few precedents –
identification of relevant considerations – application of relevant considerations –
whether appropriate to suspend whole or part of sentence – need for properly documented
pre-sentence report –

sentence of 5 years – 2 years must be served – balance of 3 years may be suspended on
application to the National Court.

CR 236/2005 The State V Mathias Alois, (21/04/05), Lay J, Kokopo

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