State v Napoleon [2022] PGNC 126; N9556 (18 February 2022)

N9556

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1430 of 2021

STATE

v

NASON NAPOLEON

Alotau: Salika CJ
2022: 15^th & 18^th February

CRIMINAL LAW – Practice and Procedure – Charge of sexual penetration and engaging in persistent sexual abuse of a girl child under 18 years of age – Charge under Section 229 E of the Criminal Code as amended.

Cases Cited:

Goli v The State (1979) PNGLR 653

Counsel:
Mr D Mark, for the State
Mr C Namono, for the Prisoner

18^th February, 2022

1. SALIKA CJ: INTRODUCTION: Nathaniel Bobby pleaded guilty to one count of sexual penetration of engaging in persistent sexual abuse of Shantel Tatau, a female child under the age of 18 years. At the time of the offence, he had an existing trust and dependency relationship of being an uncle to Shantel Tatau. The prisoner was married to Shantel’s mother’s sister. The charge was laid under Section 229E of the Criminal Code Act as amended.
   

BRIEF FACTS

2. The following facts were put to the prisoner on arraignment to which he pleaded guilty to:
   

“Accused, Nason Napoleon is married to Victim Shantel Tatau’s mother’s sister and they reside at Lelegwagwa village, Huhu LLG in Alotau. On 9^th of February, 2020, at night, Victim was asleep in her room when Accused entered the room and sexually penetrated her vagina with his penis after promising to give her money.

The act of sexual penetration continued on for four or five occasions at the house. Again on 9^th May 2020, Accused approached Victim in the house promising to give her money and as a result, he sexually penetrated Victim’s vagina with his penis.

And at all material times when Accused sexually penetrated Victim, her parents were residing away at the father’s village. Sometime after, Victim fell pregnant and was questioned by her parents and she gave Accused name as being responsible. She delivered the child on 2^nd July 2021 as a result.”

ISSUE

3. The issue for the Court to determine is the appropriate sentence to impose on the prisoner.
   

THE LAW

4. Section 229E of the Criminal Code Act provides:
   

“229E

(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 with whom the person has an existing relationship of trust, authority or dependency, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years.”

5. The maximum penalty the Court can impose in this case is 15 years imprisonment. The maximum penalty is usually reserved for the worst type of persistent sexual abuse cases. See Goli v The State (1979) PNGLR 653. Is this the worst type of persistent sexual abuse case? Not in my view, but still serious because of the circumstances of the case. The prisoner was 53 years old and the victim was 16 years old; an age gap of 37 years.
   
6. The prisoner is married to Shantel’s mother’s sister. He is therefore an uncle to the victim. He lured the victim by giving her money as gifts and as payments for sex. This went on for a while until the victim fell pregnant.
   

PERSONAL PARTICULARS

7. The following personal particulars are noted.
   
   • He is 53 years old.
   • He is from Koluwen village.
   • He is married and has 6 children.
   • Was educated up to Grade 10 at Hagita High School.
   • Villager.
     

MITIGATING FACTORS

8. The following mitigating factors are noted:
   
   • (a) He pleaded guilty
   • (b) First time offender.
   • (c) Expressed remorse for his actions.
     

AGGRAVATING FACTORS

9. The following aggravating factors are noted:
   
   • (a) Abused of trust, authority and dependency.
   • (b) Offence is prevalent.
     
10. The maximum sentence under Section 229E is a term of imprisonment not exceeding 15 years. The victim was a niece to the prisoner. The prisoner is married to the victim’s mother’s sister. The Courts duty is to deal with persons who offend against the laws and to give effect to the intentions of Parliament. The intention of Parliament are intentions of the people. The Courts duty is to consider the circumstances of the commission of the offence and to impose appropriate penalties on the offenders. It is equally important for offenders to understand that they will be punished severely for such crimes. The Courts have an obligation, legal and moral, to protect our vulnerables, more so in this case our children. As fathers, uncles, aunties, brothers, cousins, we have a collective obligation to protect them.
    
11. In this case, the uncle decided that it was not his obligation to protect his niece. He abused her.
    
12. I take into account all the mitigating factors and the aggravating factors and the circumstances of the offence in determining the sentence.
    
13. Considering all those factors, I impose a term of 13 years imprisonment in hard labour. He spent pre-trial period of 12 months in custody. That is taken off from the head sentence of 13 years. The balance he is to serve is 12 years in hard labour.

______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner