State v Konombo [1997] PGNC 152; N1742 (21 November 1997)

Unreported National Court Decisions

N1742

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 1214/97
THE STATE
V
BERNARD KONOMBO

Madang

Bidar AJ
19 November 1997
21 November 1997

CRIMINAL LAW - Unlawful Carnal Knowledge - Plea of guilty - Victim nine (9) years and three (3) months old - repeated acts of sexual intercourse - Features of aggravation - Hymen torn - Presence of gonococci.

CRIMINAL LAW - Sentence - Prior Conviction for similar offence - absence of proper guidelines - guidelines analogous to rape - Principles in rape appropriate - Four years imprisonment.

Cases Cited

John Aubuku -v- The State [1987] PNGLR 267

The State -v- Sotie Apusa [1988-89] PNGLR 170

The State -v- Komai Airi CR. 1290/96

Counsel

Mr M Ruarri for the State

Mr D Sakumai for the Accused

JUDGEMENT ON SENTENCE

21 November 1997

BIDAR AJ: BERNARD KONOMBO, you have pleaded guilty to the charge that, on the 14th June 1997, you had sexual intercourse with a girl called, LYDIA PHILIP, a girl under the age of twelve years old. This is an offence under s. 213 of the Criminal Code Act (Ch. 262).

The circumstances of the offence are fairly simple. On Saturday 14 June 1997, at Silibob village, you approached victim’s parents and asked them if you could take the victim, Lydia Philip, to visit M.V. DOULOS at the town main wharf. The victim’s parents agreed and so you took her away. Instead of visiting M.V. Doulos you took her to a friend’s house at the ‘public tank’ area, Sissiak. You spent the night of Saturday 14th and Sunday 15th June, where you slept with victim in the same room and on same bed and had sexual intercourse with her. You had sexual intercourse with her on two previous occasions. Once by the creek in the village and second time was in Suckling’s house at Silibob village. Suckling is your wantok from Oro Province, married to a Silibob woman. On Monday 15 June 1997 after you returned from work, you took victim back to her parents at Silibob village. There at the village, she reported to her parents of what you did to her. Subsequently, the matter was reported to Police and you were arrested and charged for this offence. On the facts it seems to me, you should have been charged with at least three acts of unlawful carnal knowledge of the same victim.

Section 213 of the Criminal Code prescribes the offence you are charged with. It is in these terms:

“(1) a p who nas uulawful carnacarnal knowledge of a girl under the age of 12 years is guilty of a crime.

Penalty: Subject to section 19, imprisonment for life.

(2) ټ .>

160; <;&160; In ; In the case oofan derender whose age does not exceed 16 years, the Court, instead of sentg himny te imprent, may order him to be sent to an industrial or reformatoryatory scho school fool for a pr a period not exceeding three years.”

I am not sure whether there are industrial or reformatory schools and whether Boys Towns in Wewak, Erap and other places are classified as such.

It is a serious offence as the penalty reflects it’s seriousness. Under the Code, three sexual offences attract life imprisonment. The offence of rape under s. 347, offence of unlawful carnal knowledge of a girl under 12 years old under s. 213 and incest by man under s. 223.

It is unlawful to have sexual intercourse with girls under the age of twelve years old, because they are immature and incapable of appreciating such acts.

On your allocutus, you say it was your first time to commit such an offence. But I find this is not so. You were convicted by this Court of similar offence committed on the 31st March 1997 on a girl under the age of 16 years old. The victim according to the photostat copy of the page of her clinic book was born on 7th March 1988. On my calculation she was nine years, three months and one week old at the time of the offence. A medical reported dated 24th June 1997 by Doctor J. AMBAN show there was whitish discharge from victim’s vagina, laceration located on left labia minor a measuring 2 cm, although it seems an old laceration, but appeared red and visible. Hymen was torn jaggedly. Examination of genitalia suggested forceful penetration tearing hymen and lacerating labia. Traces of sexually transmitted disease, gonorrhoea was found. You said something about your mother who suffers from leprosy. At the time of the offence you were employed by Lae Builders as a plumber. You have assured everybody in Court that you will not re-offend and asks for Court’s mercy on you.

Your Counsel submitted on sentence that in October this year, you were convicted by this Court on a similar offence, and was given two years suspended sentence. In that case, I find from the transcript that, you were convicted for unlawful carnal knowledge of a girl, Nellie Suckling, then aged 14 years old. You were given one and half year suspended sentence. That offence was committed on 31st March 1997, two months before this offence. Thus the offence dealt with in October was the first offence and this one is the second offence. Counsel’s submission was that, the offence dealt with in October was second offence and this one is first. Thus any sentence imposed in this case may affect the sentence imposed in October.

As I have found, the offence for which suspended sentence was imposed in October was the first offence. The instant case is the second offence committed two months later in June 1997. The only way suspended sentence can be affected is, if the prisoner in this case is given immediate custodial sentence. I see no problems with that. The present offence is a separate and distinct one and a sentence to be imposed should fit the circumstances of the offence.

As I alluded to, the penalty for this offence is life imprisonment subject to section 19 discretion. It is an offence analogous to rape under s. 347. In the absence sentencing guidelines by Supreme Court for this offence, I consider, guidelines for rape enunciated in John Aubuku -v- The State [1987] PNGLR 267 are applicable. Both offences involve act of sexual intercourse, except that consent is a complete defence in rape and it is immaterial in unlawful carnal knowledge. And they both carry maximum penalty of life imprisonment.

Defilement of a girl under twelve years old as this, is a serious offence. The victim Lydia Philip in this case, was nine years, three months and one week old when she was carnally known. A girl of very tender age. There were instances of sexual intercourse previously, which I accept. The offence is far too common place here and elsewhere in the country. Courts, in my view should tailor appropriate sentences for protection and welfare of our young children and to deter others with similar dispositions.

Fixing an appropriate sentence is never an easy task, as each case is different. This case has caused me some concern. It is not case of one single act of sexual intercourse but rather repetitive acts on the same victim. You are much older than the victim, who was at the time, 30 years or so younger than you. Doctors report suggest that victim had traces of sexually transmitted disease - but it is unclear when she contracted it.

In considering sentence I take due regard to case of State -v- Sotie Apusa [1989] PNGLR 170 and a recent case of State -v- Komai Airi CR. 1290/96.

In former case, Brunton AJ. (as he then was) set out certain factors to be taken into account and range of sentences appropriate in his view. It was an offence under s. 216 which carried maximum sentence of five years. I consider it is of some assistance, particularly the factors to be taken into account.

In a latter case, Her Honour Doherty J. (as she then was) dealt with prisoner who was 21 years old and victim 9 years old. It was a plea case. Some violence was used and there was severe injuries and much bleeding. Prisoner was sentenced to four years imprisonment.

This case lacks features of violence but features of aggravation, clearly are present. In short it is a case of paedophilia.

Having considered various factors and the danger of disparity of sentences, I maintain that this is separate and distinct offence, for which an appropriate sentence be imposed. In all the circumstances, the sentence of the Court is four (4) years imprisonment in hard labour. In my view the latter sentence supersedes earlier one.

Sentence accordingly.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Acting Public Solicitor