State v Wowora [2017] PGNC 159; N6824 (21 June 2017)

N6824

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 702 of 2008

THE STATE

V

CROMWELL WOWORA

Popondetta: Koeget, AJ
2017 :10^th & 21^st June

CRIMINAL LAW - Indictable offence – guilty plea – maximum sentence under section 229A (1), (3) of the Criminal Code Act – Exercise of court’s discretionary powers under section 19 of the Criminal Code Act

FACTS:

The accused married the victim’s mother when she was four years old and so he raised her and she is his adopted daughter. The accused on many occasions mistreated the victim and treated her in the village as if she was his wife.

On an unknown date between 1^st of March and 31^st March 2004, the accused threatened the victim with a bush knife and he sexually penetrated the victim’s vagina with his penis in their family house in the village. The incident was reported to the aunt who assisted her to report it to the police.

The victim became pregnant and gave birth to the accused’s child. The State allege, that there existed between the victim and the accused a relationship of trust, authority and dependency and the trust was breached by the accused when he had sex with her.

Cases Cited:

The State v Hurai Sefere (2016) N6489
The State v Kuyaps Toki Jonathan (2008) N 3315
The State v Rodney Kawau (2010) (CR 531 – unreported judgement)

Counsel:

L. Toke, for the State
E. Yavisa and C. Namono, for the Accused

21^st June, 2017

1. KOEGET AJ: Introduction: The accused is charged that on an unknown date between 1^st of March and 31^st March 2004 at Kopure village in the Oro Province of Papua New Guinea, sexually penetrated one Sabina Weroura, a child under the age of sixteen years by inserting his penis into the victim’s vagina. The victim at that time was 14 years old.

2. The charge is brought under section 229A (1) and (3) of the Criminal Code Act.

ARRAIGNMENT:

3. The accused pleaded guilty to the charge so he was convicted accordingly.

ISSUE:

4. The issue for the Court to determine is what is the appropriate sentence the Court should impose upon the prisoner.

LAW:

5. The law in relation to sexual offences against children is in the following terms:

“Division 2A – Sexual offence against children.

229A: Sexual Penetration of a child.

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

Penalty: subject sub sections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) 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 sub section (1) is guilty of a crime, and is liable, subjection to section 19, to imprisonment for life.”

PERSONAL PARTICULARS:

6. The prisoner was 35 years old when he committed the offence. He is now 44 years old. He was arrested recently on bench warrant and now appears from custody.

AGGRAVATING FACTORS:

7. The victim was the step daughter of the prisoner and he raised her up when he married the mother. A weapon was used by the prisoner when he committed the offence. She now has a child from the prisoner.

The actions of the prisoner breached the trust, authority and dependency. This type of offence is prevalent in the country these days.

The reputation and dignity of the victim are tarnished and she fears no decent man will marry her in the future.

MITIGATING FACTORS:

8. The prisoner admitted the commission of the offence and saved valuable time of the Court. He co-operated well with the police when he admitted commission of the offence in the record of interview. He is a first time offender. The prisoner has been in custody for 3 months awaiting disposal of this case.

SENTENCE:

9. The learned counsel referred the court to previous similar case of State –v- Kuyapes Toki Jonathan (2008) N3315, The State –v- Rodney Kawan (2010) CR 531 (unreported judgment) and The State –v- Ben Sakias (2011) N4238 and submitted that the court should impose sentence between 12 – 16 years.

10. In this case the prisoner mistreated and abused the victim on several occasions and as a result she gave birth to a child of the prisoner. These factors make this case very serious and a deterrent sentence must be imposed upon him.

11. In my opinion the appropriate sentence to impose is an imprisonment term of sixteen years in hard labour.

ORDERS:

12. The Orders of the Court are:

(1) The prisoner is sentenced to be imprisoned for sixteen years in hard labour. The pre-trial custodial period of 3 months is deducted and he is to serve the balance of 15 years 9 months at Biru Corrective Institute Services.

(2) The prisoner’s bail money set aside by orders of Toliken, AJ (as he then was) dated 30^th October 2012 is to be refunded to him.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused