State v Araba [1999] PGNC 156; [1999] PNGLR 131 (22 April 1999)

[1999] PNGLR 131

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

NIVI ARABA

LAE: SAKORA J
13 March, 22 April 1999

Facts

The accused pleaded guilty to the charge of unlawful carnal knowledge of a girl under the age of 12 years under s 213(1) of the Criminal Code Act. In mitigation, he pleaded that his guilty plea and the fact that he is a first time offender and well advanced in age (about 55 years old) should be taken into consideration in his favour.

Held

1. This is a very serious offence – in fact so serious that the law prescribes the maximum penalty of life imprisonment. The law here is intended to protect women and girls from men such as the prisoner who are sexual predators.
   
2. The circumstances concerning the commission of this offence warrants a custodial sentence to be imposed. Hence sentenced to 2 years imprisonment in hard labour – less the 1½ months period spent in custody awaiting trial.
   

Counsel

M Peter, for the State.
C Inkisopo, for the defence.

22 April 1999

SAKORA J. You have pleaded guilty to the charge that on 24 July 1998 at Situm in the Morobe province, you had unlawful carnal knowledge of Jobeb Labo, a girl under the age of 12 years. Upon my independently satisfying myself that you indeed committed the offence as charged and as admitted in Court by yourself, I then convicted you and reserved sentencing until today.

The agreed facts upon which you pleaded demonstrate the following circumstances. On the day in question, between the hours of 10:00 and 11 am; the girl victim went to the creek near her village of Amua, in the Situm area, to have her wash. She came across you having your bath at the creek. She was by herself. Upon seeing her you approached her and carried her into the nearby bushes, lay her down on the ground, removed her clothes and proceeded to have sexual intercourse with her.

It was the State's case that you knew then that she was a little girl and under the age of 12 years. This child victim was no stranger to you, both of you being from the same village and you knowing each other. And this familiarity, no doubt, would have been the reason for her not feeling alarmed in any way when you first approached her.

Whilst you were assaulting her sexually, other women from the village arrived on the scene, the area being popular for bathing by the villagers. As a consequence you left the girl and ran away.

To assist me in this very serious and important task of determining an appropriate sentence for your offence, I have had the benefit of hearing both yourself and your lawyer as well as the lawyer for the State.

For your own part, you apologised and expressed remorse for what you did. You indicated that back at the village you have been affected by this offence. As a direct result of your shame for what you did to this little girl, you left home, and have been living with your two grown-up daughters here in Lae since. Your wife left you, but not because of this incident; she left before the incident for another man.

From what you put before the Court yourself, it would appear that your age would be somewhere between the late 50s and early 60s. In this respect you noted with some pride that because of your physical exercises you are fit and younger looking compared with your contemporaries.

Your lawyer urged the Court to take account of the following factors in your favour. These are that; you have pleaded guilty to a very serious offence, and this has had two immediate effects; (i) it has made it unnecessary for this child victim to come to Court and re-live her traumatic experience in front of complete strangers, and (ii) the State has been spared time and expense in proving this case against you; and that, though of advanced age, this is your first offence - your first "brush with the law." Finally it was noted that there has been no evidence of any physical injury suffered.

After apprehension and arrest by the police, you spent 1½ month in custody before being released on K100 cash bail awaiting your trial.

As adverted to earlier, this is a very serious offence; in fact so serious that the law prescribes the maximum penalty of life imprisonment. The law considers with very serious concern sexual offences against women and girls. Therefore, the laws on these are intended to protect women and girls from men such as yourself, sexual predators such as yourself. And such men seem to have nothing better or useful to do than prey upon innocent women and children.

Contrary to the assertions of learned counsel for the prisoner, there is a medical report before me for the examination of the girl victim. Vaginal examination resulted in the following findings:

Bleeding from OSS; Bruises and lacerations around the vaginal wall Hymen perforated; Swellings and oedematous of labia majora/minora

For a layperson such as myself in matters medical, the above physical descriptions are suggestive or demonstrative of high physical activity or contact/impact in the pubic and vaginal region of the body. Thus, there can never be any doubt that the victim was subjected to and did suffer injury as a direct result of the unlawful sexual intercourse.

The very fact of sexual contact and penetration of an unwilling and unconsenting woman and an under-age girl involves physical harm and injury. It is a physical assault as defined by both the law of torts and criminal law, as well as a sexual offence. And the psychological harm, more particularly to a younger victim, can be immeasurable. There can never be a proper and accurate determination of this, even with the best and available professional facilities. So many imponderables, so many ifs and buts in the world of the mind and the psyche. But some degree of psychological harm, either long-term or of short duration, is inflicted and suffered cannot be disputed.

Finally, it has to be noted and taken due account of in my decision the fact of the age difference between yourself and your young victim. There is this vast difference. And this was, undoubtedly, one of the operating factors in your finding the girl an easy prey.

In deciding upon what I consider to be an appropriate punishment for your offence, I have been involved in a balancing act of sorts. And this has entailed comparing and contrasting those matters or factors in your favour with those of seriousness and aggravation. I have also been assisted by the fact that whilst the law's maximum penalty here is life imprisonment, the law itself extends to the Court the power and discretion to impose a sentence less severe than the maximum, in appropriate cases.

And I have availed myself of this discretion after having determined that the circumstances of the commission of this offence call for a custodial sentence to be imposed.

The judgment of the Court, therefore, is that you be sentenced to a term of imprisonment for 2 years in hard labour. From this term is deducted the time spent in custody, awaiting trial, which is 1½ month. You were to be sentenced on 17 March 1999. Through no fault of yours, the sentencing has been deferred several times until today. I take account of this and order that your effective sentence to be served be 1 year 9½ months IHL from today’s date.

Lawyer for the State: Public Prosecutor.
Lawyer for the defence: Public Solicitor.