State v Paliako [2019] PGNC 292; N8016 (23 August 2019)

N8016

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 990 OF 2018

THE STATE

V

FREDDY PALIAKO

Waigani: Koeget, J
2019: 23^rd August.

CRIMINAL LAW- Indictable offence – Sexual Penetration of a child under the age of 12 years pursuant to section 229A of the Criminal Code Act – guilty plea – Maximum sentence – Exercise of Discretionary powers of court under section 19 of the code.

Counsel:

E. Yaiigi, for the State
A. Peter, for the Accused

23^rd, August, 2019

1. KOEGET, J: INTRODUCTION: The accused is charged with one count of Sexual Penetration pursuant to section 229A of the Criminal Code Act chapter 262.

FACT

2. The accused Freddy Paliako is a close family friend of the victim M.R and they reside at Erima Settlement in the National Capital District. The victim M.R was aged 12 years and was in grade 5 at New Erima Primary school at the time of the offence. The accused had known the victim since birth.

3. On 28^th February, 2018 the victim was at home doing laundry when the accused approached her and insisted that she goes to the back of the family house so he will meet and talk to her. She refused and continued to do her laundry.

4. At about 12 midday when the victim went to the back of the house, the accused followed and grabbed her in the kitchen and he used one hand to close her mouth and used the other hand to hold the victim to prevent her from struggling. The accused forced the victim onto the kitchen bench and threaten her with a bush knife. The accused held her down and forcefully remove her trousers and inserted his penis into the victim’s vagina and sexually penetrated her.

5. The incident was reported to the police resulting in the arrest of the accused.

ISSUE

6. The accused pleaded guilty to the charge and was convicted accordingly. So the issue for the court is what is the appropriate sentence the court should impose upon him.

LAW

“Section 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 to subsections (2) and (3), an imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, a offender against subsection (1) is guilty of a crime and is liable, subject to section 19, to imprisonment for life.”

7. In this case the prisoner is 28 years of age and the victim aged 12 years 8 months so the age gap between them is 16 years.

PERSONAL PARTICULARS

8. The prisoner is 28 years of age and is a bachelor. He is unemployed. He attended Tokarara High school and completed grade 9 in 2009.

AGGRAVITING FACTORS

9. The prisoner is known to the victim. He has been a family friend for over 12 years and is regarded as a family member. He abused and breached the relationship when he committed the offence upon the victim. A bush knife was used to threaten the victim to submit to the intercourse.

10. The victim was infected with sexually transmitted disease (STD) after the intercourse with the prisoner.

11. Such offence is prevalent in the country particularly with females of tender age such as the victim in this case who are vulnerable.

MITIGATING FACTORS

12. The prisoner admitted commission of offence to the police and pleaded guilty before me so save valuable time of court. He also saved the victim from embarrassments should she give evidence in court and be subject to cross–examination by counsel and trial judge.

SENTENCE

13. The prisoner had known the victim since birth. He is a family friend and regarded as member of the family. He abused the trust placed upon him by the victim and the family.

14 A knife was used in the commission of the offence and the victim was infected with STD at such a young age. The age gap between the prisoner and the victim is 16 years and is a serious factor in this case.

15. Although the prisoner is a first time offender and pleaded guilty to the charge, saved valuable time of the court, the aggravating factors outweighing those mitigating Factors. So, in my view, a deterrent sentence is to be imposed to deter other would-be offenders.

16. The prisoner is sentenced to be imprisoned for 12 years in hard labour. The pre-trial custodial period of 1 year and 4 months is deducted. The balance of 10 years and 9 months is to be served at Bomana Corrective Institution Servers.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused