State v Kenny (No 2) [2024] PGNC 201; N10848 (22 May 2024)

N10848

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1412 OF 2024

THE STATE

V

MANUEL KENNY
(No 2)

Kokopo: Miviri J
2024: 21^st & 22^nd May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 229D CCA sexual Penetration of Child under 16 years old – 12 years old victim – Trial – Breach of Trust – Repeated Sexual Penetration – Underaged Pregnancy – Prevalent Offence – 41-year-Old Married Man – First Offender – Protection of Children – Strong Deterrent & Punitive Sentence.

Facts
Prisoner more than family accommodated Complainant who had run away from her mother who had assaulted her because she was chewing betel nut in school uniform with friends. He sexually penetrated her repeatedly, and she became pregnant. She was 12 years old at that time and delivered a male child.

Held
Trial.
Pregnant 12-year-old girl.
Serious Breach of Trust.
Prevalent offence.
Repeated acts of sexual penetration.
Protection of Children.
Strong Deterrrent Sentence.

Cases Cited:
Kumbamong v State [2008] PGSC 51; SC1017
Koribiseni v State [2022] PGSC 90; SC2296
State v Hagei [2005] PGNC 60; N2913
Sabiu v State [2007] PGSC 24; SC866
Hindemba v The State [1998] PGSC 48; SC593
Aubuku v The State [1987] PNGLR 267
John Elipa Kalabus v The State [1988] PGNC 120; N604
Golu v The State [1979] PNGLR 653
State v Fego [2024] PGNC 14; N10663
State v JB [2007] PGNC 66; N3224
State v Jonathan [2008] PGNC 31; N3315
Wartovo v State [2019] PGSC 11; SC1775
Lawrence Simbe v The State [1994] PNGLR 38
Tardrew, Public Prosecutor v [1986] PNGLR 91

Counsel:
J. Sausoruo & D. Mark, for the State
N. Loloma, for the Defendant

SENTENCE

22^nd May 2024

1. MIVIRI J: This is the sentence of a 41-year-old man who sexually penetrated the Complainant, a 12-year-old girl who sought refuge in his house and became pregnant as a result.
   
2. Between 1^st April 2022 and the 31^st May 2022 at Vudal- PNG UNRE campus, Gazelle District East New Britain Province, Abbiegail Malot who was 12 years old of Komoria village, Karkar, Madang Province went to stay with Manuel Kenny originally of Bali Island Talasea West New Britain. She regarded them as more than family and together with the three daughters of the Accused slept in the Kitchen house. The Accused and his wife slept in the main house.
   
3. The first incident of sexual penetration occurred in the middle of the night inside the girl’s room, when the accused entered and went straight to where the complainant was sleeping inside a mosquito net. He lifted it entered inside and sat between the legs of the complainant. Then removed her trousers and pants and his own trousers. Then forced the victim to touch his penis with her hand but she pulled away. He then held her legs upright, spread them and inserted his penis into her vagina. Complainant fell pain but he continued.
   
4. On the second occasion, the complainant was sleeping inside the kitchen house whilst everyone was away. The Accused went inside went to where she was sleeping and removed her clothes and his clothes. Then he inserted his penis into her vagina had sexual intercourse and ejaculated in her. This was continued consecutively for four (4) to five (5) days of the week when she was residing with the accused and his family. And by so doing by inserting his penis into her vagina when she was under 16 years, the accused contravened section 229D of the Criminal Code Act. He persistently abused her sexually.
   
5. That section Persistent Sexual Abuse of a child is in the following terms: -

“(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and
(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and
(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.”

6. As the title to the section denotes, this is persistent sexual abuse as opposed to a one of situation, where penetration takes place without any further sexual actions directed at the victim. It means continuing, or not a one of situation, but repeated, so that the complainant is subdued at the worse to a multiple or different sexual actions not necessarily with penetration associated. Which draws time at the highest 15 years imprisonment. It is life imprisonment where there is penetration as is the case here. He could be sentenced to a maximum of life imprisonment subject to section 19, because there is penetration here persistently, that has culminated in pregnancy forced upon her with delivery of a male child on the 29^th January 2023. It beckons the seriousness of the offence. And that is depicted out by the will of the legislature set out above. His facts will time out what is proportionate and due in law for the wrong he has committed: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). Being proportionate is not by mathematical formular but due consideration in law including consideration of the other principles of sentencing for instance totality to arrive: Koribiseni v State [2022] PGSC 90; SC2296 (25 August 2022). Supreme Court upheld the appeal on sentence and overturned the initial warrants issued pursuant because of excessive exercise of discretion against the sexual penetration and touching convictions. It is therefore a delicate balancing act between the aggravating, mitigating and any extenuating circumstances: State v Hagei [2005] PGNC 60; N2913 (21 September 2005).
   
7. Sexual penetration as here is the invasion of the privacy of the young girl who is 12 years old here. Who will protect her from what the Prisoner has exerted on her now with dire consequences that have entailed in an unwanted pregnancy? What was the purpose and the intent of the amendments Criminal Code (Sexual Offences and Crimes Against Childrens Act 2002? Surely the legislature saw injustice that was perpetrated which needed immediate reprieve and remedy dispensed. And no doubt it was prompted because of serious offences against children which the law did not adequately address, for example for reasons of corroboration in law therefore the amendments to the code must bring forth Justice comfort for the aggrieved: Sabiu v State [2007] PGSC 24; SC866 (27 June 2007), 17 years imprisonment was confirmed on appeal dismissed. He had pleaded guilty to sexual penetration of a 6-year-old boy anally who suffered bruising, bleeding and pain consequently like in this case. He was the nephew of the prisoner, mother of the victim his sister. He explained that he committed the offence because he was not paid part of the bride price. In dismissing his appeal against sentence, the court remarked that the sentence was not out of reasonable proportion to the crime of sexual penetration of a minor under 12 years old. I hold the same view particularly considering that this is a trial of persistent sexual abuse pursuant to section 229D, and the offender is 41 years old. The pinnacle of his illegality is now the pregnancy and the child dawned on this 12-year-old for the rest of her life.
   
8. This is illustrated well in Hindemba v The State [1998] PGSC 48; SC593 (27 October 1998). Ten (10) years IHL was increased by the Supreme court to 15 years on the appeal against sentence by the appellant/prisoner. That was a crime of rape. She was a young schoolgirl who was with others in her age separated from the others by his violence and despite her sister standing up for her, he persisted and committed the offence in broad day light. Which are very serious and aggravating features viewed within Aubuku v The State [1987] PNGLR 267. A policeman committed rape of the female suspect in police custody at the police station. It is my view that the factors to be considered in the determination of an appropriate sentence set out in that case are relevant here. I am mindful also that this is a case of sexual offences against Children, not adults and therefore in that regard have special status to be considered because of the specific amendment that was targeted at these offences. Unto it is the fact that it is a specific code that addresses all manner of sexual conduct that is directed at Children who in my view, have special standing because of their youthfulness and innocence. They must be protected from men, boys, and other persons, and from themselves. I will do that in the sentence that I now pronounce and pass upon the offender.
   
9. She trusted the prisoner who she referred to as Daddy, because he had looked after her mother whilst She was in School, presumably at Vudal Agricultural University. She is from Komoria village, Karkar, Madang Province but because of that long existing relationship regarded the prisoner as Daddy having been born out of wedlock and raised by her mother as a single parent. It is disaster for the mother Beverely Malot who was mother and father to the complainant to see her pregnant with a fatherless child at 12 years old. It is stiff and bearing responsibility upon her a very young age. No child should be treated in this manner by an adult.
   
10. The trust of mother and daughter upon the prisoner has been paid back with this sickening behaviour from him. Not once but persistently over that period 1^st April 2022 to the 31^st May 2022 culminating in pregnancy. It is very crushing on the young girl of tender age of 12 years to be forced to under the agony of childbirth at that tender age. No child should be subjected to this agony at the pleasure of men like the prisoner. Innocent children must be allowed their innocence to flourish into women of the future. The innocence cannot be taken away in this manner by men who take advantage of them as if they were objects to be used for their pleasure. He was at his leisure and pleasure to do as he pleased no threat to his life except his pleasure. At the initial point She was no match for his strength to prevent his urges. The rest is at his pleasure because she sustained blood which was transformed to her bedsheets for which she spent the day away from school to clean and wash. He did not see his actions as threatening her life or putting her to what she has endured. It must be weeded out and this Court will be failing in its duty if sentence does not address.
    
11. He is a mature married man with a wife from which he has four children ages ranging from 15, 13, 10, and 6 years of age. These children with his wife will suffer because he chose to be selfish and concerned on his pleasure than their lives. He really had no excuse because he had a wife to which he could easily turn to for his sexual urges with out any consequences. His wife has trusted him and abided in that trust even to the extent of this proceedings where she sought to give evidence in his defence. That is her love for him returned in this way. Now the children will miss what he provided as their father in his employment as a field attendant at the Vudal university campus where he worked earning livelihood to support them. They will suffer because of his weakness to sexual impulses that were not right in law. Men must always learn to respect the family they have come to create. And it would be no cause because of the family that penalties prescribed would come down. The fact that he is a first offender is to nothing compared to the gravity of the offence. There is really nothing to tilt the balance his way in the sentence.
    
12. He is a man who has tried all in vain to hide the fact that he breached the trust of the mother and child who saw him as a fatherly figure. He himself says this out in the record of interview at question 24 and 25. That relationship was not honoured and returned but abused persistently to a pregnancy of this young 12-year-old child. Who will for the rest of her natural life live with that fact that he unceremoniously cursed her into early motherhood at that tender age. The child conceived now born will remind of that fact. She has now been denied education among her peers to reward the inspiration of her single mother. It is no light matter because persistent penetration draws life imprisonment as the maximum that can be dished out for his crime. It is unlikely that would be the case upon the prisoner because it is not the worst case of such an offence John Elipa Kalabus v The State [1988] PGNC 120; N604 (27 October 1988). Instead, he will draw a determinate term befitting his crime Golu v The State [1979] PNGLR 653.
    
13. It was a trial which made the child relive that in a court before strangers to intimacy that was forced upon her. In State v Fego [2024] PGNC 14; N10663 (21 February 2024), where four counts, firstly of persistent sexual abuse pursuant to section 229D (1) and (6), sexual penetration with a finger section 229A (1) (2) of the Criminal Code. And sexual touching pursuant to section 229B (1)(b)(4) of the Criminal Code. And indecent act pursuant to section 229C (1) (2) of the Criminal Code. He had pleaded guilty to the four counts and was sentenced to 40 years IHL but reduced on totality to 30 years IHL. It would equate here given there were multiple actions of sexual penetration persistent undeterred. He has one single charge drawn out over a period of time upon the complainant. The age of children is material in the determination of an appropriate penalty. She is 12 years of age turned into a mother still barely a child.
    
14. This fact is always underlying sentences that have been imposed before this Court as here in State v JB [2007] PGNC 66; N3224 (20 September 2007) he had persistently abused his 13- and 15-year-old daughters he was sentenced to 26 years IHL but reduced to 20 years on the totality principle. In the State v Jonathan [2008] PGNC 31; N3315 (12 March 2008) persistent sexual abuse of a 13-year-old girl who became pregnant drew 18 years IHL for persistent sexual abuse contrary to section 229D the penalty provision had the maximum sentence of life years similar to section 229A. The Supreme Court confirmed the sentence of 22 years imprisonment IHL for persistent sexual abuse in Wartovo v State [2019] PGSC 11; SC1775 (1 March 2019), holding that there was no error in the sentence passed at first instance. That was three separate acts of sexual penetration of a 13-year adopted daughter by the father. This is a 12-year-old child who has because of the persistent sexual abuse been imposed with pregnancy and delivery of a male child.
    
15. It is relevant to stress the seriousness of the offence here when the Court made the following determination, and I find as a fact that he had sexual intercourse with her repeatedly over that period. He penetrated his penis into her vagina with ejaculation over a number of occasions which I deduce from her evidence. And I find as a fact the initiating beginning was when he one time in the night when she was sleeping with the two girls between 4.00am to 5.00am, Manuel came into the room. He lifted the mosquito net and came to where she was sleeping. And then had sex with me. Two nights later he came looking for her. That establishes the acts of sexual penetration, and it was persistent given the number of times he had sexual intercourse over that period with her. Which is consistent and falls square with the definition set out under section 229D (5) of the Act, there is more than one act of sexual penetration and the like in the hands of the accused against the victim complainant.
    
16. When an adult grown man as here takes advantage of the vulnerability of young innocent tender aged children here, 12-year-old girl, it is a crime of abhorrence, repulsion and should not be tolerated beyond necessity. Quite clearly it must and ought to be stamped out with stern deterrent and punitive sentences. And in this regard no one case is the same and must draw its own sentence given its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    
17. Abbiegail Malot was a child in primary School, notably at Kerevat Primary School. She left unceremonious trusting the prisoner between the 1^st April 2022 to 31^st May 2022 with an offence satisfying section 229D on all frontiers by it, subsections (1) (2) (3) (4) and (5). The indictment with its own facts and circumstances in my view draw out the sentence of 22 years imprisonment IHL. Because I do not see anything apparent or identifiable to follow the footsteps set out by Tardrew, Public Prosecutor v [1986] PNGLR 91 for suspension of sentence which will have conditions for the same. No material has been placed before me to that effect. And I so impose that upon the prisoner. I deduct time on remand. He will serve the balance in jail. A warrant will issue accordingly.
    

Orders Accordingly

______________________________________________________________
Office of the Prosecutor : Lawyer for the State

Office of the Public Solicitor : Lawyer for the Defendant