State v Wii (No 1) [2024] PGNC 241; N10908 (11 July 2024)

N10908

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 568 OF 2022

THE STATE

V

JUNIOR WII
(No 1)

Minj : Miviri J
2024: 10^th & 11^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Trial – Sexual penetration Minor 12 years old – 11 years Old – Section 229A (1) (2) CCA – Penial Penetration – Injuries to Vagina – Armed with Bush knife Chased with Other Children In Plantation – Caught & Sexually Penetrated – Accused Security of Plantation Chased Victim & Others – Broad Daylight Allegation – Accused Admission Sexual Penetration Record of Interview – Unsworn Statement From Dock – Sexual Penetration – 11 year Old Girl – Evidence Beyond All Reasonable Doubt – Guilty of Sexual Penetration of a Minor under 12 Section 229A (1)(2) CCA – Remanded For Sentence.

Facts
Accused was in the plantation and saw complainant with other children collecting firewood. He chased them with a bush knife. The others escaped. He caught the complainant removed her trousers and his, then penetrated her vagina with his penis and had sexual intercourse with her. She was 11 years old.

Held
Sexual penetration.
11-year-old Girl.
Complainants Evidence.
Medical Evidence.
ROI Admission penetration.
Unsworn Statement from Dock.
Born 12^th Sept. 2011.
Guilty of Sexual Penetration Section 229A (1)(2) CCA.
Remanded.

Cases Cited:
Hagena v State [2017] PGSC 55; SC1659 (11 December 2017).
Balbal v State [2007] PGSC 16; SC860 (22 February 2007).

Counsel:
F. Popeu, for the State
D. Pepson, for the Defendant

VERDICT

11^th July 2024

1. MIVIRI J: This is the verdict of a Junior Wii of Kimil, Banz, Jiwaka Province who pleaded not guilty to having sexual penetration of 11-year-old Magret Danny.
   
2. He was indicted under section 229A of Criminal Code, Sexual Penetration of a Child which read: -
   

(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 Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

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

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

3. The Accused denied the allegation that he on the 29^th day of December 2021 around 2.00pm at Kimil in Banz had sexual penetration of Magret Danny who was 11 eleven years old having been born on the 12^th September 2011 at Kimil. It was alleged on arraignment that he was armed with a bush knife that he used to chase other children who were accompanying the complainant as they looked for firewood in that plantation. After they successfully escaped, he apprehended the complainant put her to the ground, removed her shorts, and his own, then opened her legs inserted his penis into her vagina and proceeded to have sexual intercourse with her. After he had done, he ran away leaving her in pain and with blood to her vagina.
   
4. The other children came and took the complainant to the village where the matter was reported and the accused was arrested and charged, now appearing in court. Accused explained that it was company policy that persons within the plantation illegally would be charged K200. The complainant did not have that money so submitted to him to do as he pleased hence the offence upon her.
   
5. His record of interview Exhibit P1(a) pidgin, English P1(b), contained these admissions that were corroborative of the sworn evidence of the complainant who gave sworn evidence, that they were looking for firewood in the plantation Division 2 Kimil Coffee Plantation. She named the others with her as Paul Johnny, Jacob George, and Philemon Steven. She described him particularizing with the clothes that he wore. He took off her clothes his own and then inserted his penis into her vagina to have sexual intercourse with her. Which was after he had successfully chased the other children away. He was armed with a bush knife that he used in chasing them away. She felt pain and there was blood.
   
6. Medical report exhibit P2 from the Nazarene General Hospital of the 30^th December 2021 confirms that Hymen was ruptured. There was bleeding and scratches, and semen was seen. These were the findings after examination of her vagina. And that is consistent with the admissions of the Accused in his record of interview questions and answers 13, 18, 20 that he did sexually penetrate her. He put his penis into her vagina and did have sexual intercourse with her presumably on agreement that she had no money for the policy of the company to pay K200 upon unlawful entry.
   
7. Together with his admissions and the medical report corroborate her independently: Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). There can be no doubt that she was penetrated vaginally by his penis, Balbal v State [2007] PGSC 16; SC860 (22 February 2007). And she is under 12 years old having been born per the evidence of her mother Exhibit P3 and P3(a) 12^th September 2011. So, on the 29^th December 2021 She was 11 years old and therefore under 12 years old. She has given sworn evidence. He has given an unsworn statement from the Dock not on the same level as her sworn evidence. He evidence with all set out above establish beyond all reasonable doubt that the Accused is guilty of sexual penetration under section 229A (1) (2) set out above.
   
8. I find Junior Wiil guilty on the Indictment dated 10^th July 2024 that he on the 29^th December 2021 at Kimil in Banz sexually penetrated Magret Danny who was 11 years old and therefore under 12 years old. I return a guilty verdict pursuant to section 229A (1)(2) Criminal Code Act.
   
9. I remand the prisoner to await sentence.
   

Orders Accordingly

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant