State v Kennedy [2021] PGNC 617; N9456 (16 April 2021)

N9456

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 389 OF 2019

THE STATE

V

JAPHET KENNEDY

Alotau: Koeget, J
2021: 12^th &16^th April

CRIMINAL LAW – sentencing – prisoner pleaded guilty to offence of sexual penetration of a minor – offence contrary to s229A(1)& (2) Criminal Code Act – victim related to prisoner as her maternal grandfather – mitigating and aggravating factors considered – prisoner is a threat to young girls in the community – prisoner sentenced to 25 years in hard labour

Facts

The accused is charged with one count of Sexual Penetration of a minor pursuant to Section 229A (1)(2) of the Criminal Code Act (as amended).
Held:

Prisoner is sentenced to twenty-five (25) years in hard labour

Cases cited:

Nil

Counsel:

A. Kupmain, for the State
N. Wallis, for the accused

16^th April, 2021

1. KOEGET J: INTRODUCTION: On Saturday 19^th September 2018 at about ten o’clock in the morning the accused said to the victim Vicky Tani to go with him to Magaru coconut plantation on Sanaroa Island, Esa’ala District for a picnic.

2. The victim trusted him as he is her maternal grandfather. While they were at the coconut plantation, the accused approached her to have sex but she refused. The accused pushed the victim down to the ground and removed her clothes. He proceeded to insert his penis into her vagina. The victim sustained injuries to her vagina and bled. She received medical treatment to the injuries and has recovered. The victim was 13 years old and a virgin. The State alleges that the accused’s actions contravene Section 229A(1)(2) of the Criminal Code Act (as amended).

3. The accused pleaded guilty to the charge on arraignment.

Issue

4. What is the appropriate sentence the Court should impose upon him.

Personal Particulars

5. He is 64 years old and is married with children and grandchildren. He completed Grade 4 at Dobu Primary School in 1968 and returned home to live as a subsistence gardener in the village.

Aggravating Factors

6. The prisoner is the maternal grandfather of the victim and the victim was thirteen years old and she was in Grade 6 at Sanaroa Primary School.

7. The age gap between the accused and the victim is 60 years. The prisoner was convicted by the Esa’ala National Court in 2008 for incest and sentenced him to be imprisoned for two years and seven months in hard labour. He has served that term and was released from goal when he committed the subsequent offence.

8. He breached the relationship of trust, dependency and authority when he committed the offence on the granddaughter. Such offence is prevalent in the Esa’ala District and in the country.

Mitigating Factors

9. The prisoner pleaded guilty to the charge and was convicted accordingly. No weapon was used in the commission of the offence.

10. He has been in custody for one month, two weeks before being released on cash bail of K300.00. He is now in custody as he failed to appear in Court on the first day of the court sitting in Esa’ala. No orders for forfeiture of his court bail was made.

Sentence

11. The National Court in Esa’ala convicted the prisoner on the charge of incest. The victim in that case was a relative of a tender age. He was sentenced to be imprisoned for two years and seven months in hard labour. He served that term and was released from prison when he committed the subsequent offence.

12. Although the prisoner was charged with one count of sexual penetration of a minor, the victim’s statement in the committal depositions dated 26^th December 2018 and the medical report stated that the victim in this case was treated by him as a girl friend or a wife. He restricted her from associating with other children of the same age nor to participate in sporting activities in the village. The prisoner has had sex with her on eight different occasions and so she was tired and went and hid. That night the parents searched and found her hiding so they enquired the reason why she hid that day till night. It is then that she told her parents of what the prisoner had done to her.

13. The victim, a young school girl must be protected from such sex predators as the prisoner. The prisoner should be sentenced to a higher period so that he does not abuse the victim anymore.

14. The prisoner is sentenced to be imprisoned for a period of twenty-five years in hard labour.

15. The pre-trial custodial period of one month, 2 weeks is ordered to be deducted. The balance of twenty-four years, ten months and one week is ordered to be served at Giligili Jail.

Orders

1. The prisoner is sentenced to be imprisoned for a period of twenty-five years.
   
2. The pre-trial custodial period of one month and two weeks are ordered to be deducted. He is to serve the balance of twenty-four years, ten months and one week are to be served at Giligili Jail.
   
3. The cash bail of K300.00 is to be refunded to him.
   

According Sentenced.
______________________________________________________________________
The Public Solicitor: Lawyer for the Accused
The Public Prosecutor: Lawyer for the State