State v Thomas [2018] PGNC 582; N7746 (24 October 2018)

N7746

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 943 OF 2018

THE STATE

V

MAIK THOMAS

Kiunga: Koeget, J
2018: 17^th, 24^th October.

CRIMINAL LAW- Indictable offence – Sexual Penetration of a female child under the age of 16 years – section 229A (1), (3) of the Criminal Code Act (as amended) – conviction and sentence on guilty plea – abuse of trust, authority and dependency are aggravating factors.

Cases Cited:

Nil

Counsel:

Ms. T. Aihi, for the State
J. Kolowe, for the Accuseds

24^th October, 2018

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Sexual Penetration of a child under the age of 16 years pursuant to section 229A (1), (3) of the Criminal Code Act chapter 262.
   
2. The State alleges that there existed a relationship of trust, authority and dependency between the accused and the victim as the accused is the step father of the victim.
   

FACT

3. On the morning of 3^rd of February 2018 between 9 o’clock and 10 o’clock, the victim in company of her mother and a younger brother went to harvest their garden at Bultem village, Tabubil in the Western Province.
   
4. Whilst in the garden, the victim told the mother that she was going into the bush to collect some green leaves to cook. She followed a bush track and found the plants and began collecting them. The accused followed the victim to the location in the bush and when he located her, he pushed her down to the ground from the rear. The victim was surprised and asked what he was doing, she was harassed and she became frightened. The accused forced the victim to remove her clothes and he inserted his penis into the victim’s vagina. The victim struggled to free herself but the accused was too strong for her and he continued to have sex and stopped when he saw that the victim was bleeding from her vagina. The victim stood up, wore her clothes and ran to the village and reported the incident to aunt Lina. The incident was reported to the police resulting in the arrest of the accused. The State alleges that the actions of the accused amounted to an offence of Sexual Penetration of a child thereby contravening section 229A (1) (3) of the Criminal Code Act (as amended).
   

ARRAIGNMENT

5. The accused pleaded guilty to the charge so he was convicted accordingly. His guilty plea is confirmed by admissions in the record of interview so he was convicted accordingly.
   

LAW

Section 229A – Sexual Penetration of a child.

“229A. Sexual Penetration of a child.

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

(1) if the child is under the age of 12, an offender under sub section (1) is guilty of a crime and is liable, subject to section 19, to imprisonment for life.

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

PERSONAL PARTICULARS

6. The prisoner is 24 years of age and is married. He married the mother of the victim and took custody of her when she was aged five years. So he raised her up as his step daughter.
   
7. The prisoner attended Tabubil Primary school and completed grade 7 in 2011.
   

AGGRAVATING FACTORS

8. The actions of the prisoner abused the trust, authority and dependency and such offence is prevalent in the country.
   

MITIGATING FACTORS

9. The prisoner is a first time offender. He cooperated well with the police and pleaded guilty in court. He saved valuable time of court when he pleaded guilty to the charge.
   
10. He is remorseful and pleads for leniency of court. No weapons were used in the commission of the offence.
    
11. He has been in custody for 9 months and 2 weeks awaiting disposal of the case.
    

SENTENCE

12. The victim was 5 years old when the prisoner took custody of her after he married the mother. She regarded him as father and was dependent on him for her living including personal security. The prisoner has abused all the trust the victim had on him. She now lives in fear of him and she does not know who will protect her from such man these days.
    
13. The age gap between the prisoner and the victim is 10 years. The fact that the victim now lives in fear of the prisoner makes it a serious factor in this case. The prisoner is sentenced to be imprisoned for 15 years in hard labour. The pre trial custodial period of 9 months 2 weeks is ordered to be deducted and the prisoner is to serve the balance of 14 years, 2 months and 2 weeks at Ningerum Corrective Institution.
    

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused