State v Medako [2025] PGNC 231; N11391 (3 July 2025)

N11391

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 230 OF 2024

THE STATE

V

JOHN MEDAKO

Bomana: Miviri J
2025 : 12^th 19^th 25^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – S229A (1) (3) CCA Plea Count 1 Digital Penetration – Count 2 Penial Penetration – Same Victim & Time, & date – One Transaction – Concurrent Sentence – Large Age Gap 42-year-old & 14-year-old Stepdaughter – Repeated Offences – Well Planned – Stepfather /Daughter – Pregnancy – Very Serious Breach of Trust – Strong Deterrent & Punitive Sentence.

Facts
Accused sexually penetrated his stepdaughter with his fingers and then followed with his penis over a period. She became pregnant and delivered a female child whilst still a pupil in primary School. He was her stepfather aged 42 years old, having raised her from 5-year-old to 14 years old.

Held
Guilty plea two counts sexual penetration digital and penial.
Serious abuse of trust Authority & Dependency
Stepdaughter aged 14 years old.
Protection of the young
Stepfather 42-year-old man.
Pregnancy
One Transaction Rule.
Same time same victim.
Concurrent Sentence
Strong Deterrent & Punitive Sentence.

Cases:
Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006).
State v Fego [2024] PGNC 14; N10663 (21 February 2024).
State v Peter Lare [2004] PGNC 218; N2557 (20^th May 2014)
State v Kutetoa [2005] PGNC 137; N2814 (22 March 2005)
State v JB [2007] PGNC 66; N3224 (20 September 2007)
State v Jonathan [2008] PGNC 31; N3315 (12 March 2008).
Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008).
Koribiseni v State [2022] PGSC 90; SC2296 (25 August 2022).
Paul v State [2017] PGSC 33; SC1630 (3 November 2017).
Wartovo v State [2019] PGSC 11; SC1775 (1 March 2019).
Sabiu v State [2007] PGSC 24; SC866 (27 June 2007).
Kerua and Kerua, Public Prosecutor v [1985] PGSC 8; [1985] PNGLR 85 (1 April 1985).
State v Talibe [2025] PGNC 21; N11151 (10 February 2025).
Kalabus v The State [1988] PGSC 17; [1988-89] PNGLR 193 (27 October 1988).
Tardrew, Public Prosecutor v [1986] PGSC 10; [1986] PNGLR 91 (2 April 1986).

Counsel:
S. Patatie & J. Tugaha, for the State
K. Watakapura, for the Defendant

SENTENCE

03^rd July 2025.

1. MIVIRI, J: This is the sentence upon John Medako of Nanau village, Karkar Island, Sumkar District, Madang Province who pleaded guilty to two counts of sexual penetration. The first was digital and the second was penial both committed on the 1^st day of March 2022 to the 31^st March 2023 at Talapia Street Morata, National Capital District.
   
2. He was her 42-year-old stepfather having raised her as a 5-year-old when he married her mother. She was his 14-year-old stepdaughter who because of the sexual penetration became pregnant and delivered a female child in 2023. He started the relationship during that period on a Saturday date unknown. He initially started by sucking her breasts as she lay asleep during the day. He had already removed her trousers. She struggled but He with one hand closed her mouth and with the other removed her trousers and then sexually penetrated her by inserting his fingers into her vagina. Further he inserted his penis into her vagina and sexually penetrated her again. When done he cleaned himself up and left.
   
3. Around late November to December 2022 complainant felt sick and kept on vomiting. When she was brought to the hospital on 29^th March 2023, she was told that she was 6 months pregnant. Accused told her to tell her mother that a boy at the school did that to her. Matter was reported to the Police he was arrested and charged with the offences. This is now the two counts that have been laid against him pursuant to section 229A (1) and (3) of the criminal Code, pleading circumstances of aggravation in that he was in a position of authority dependency and trust because he was her stepfather.
   
4. 229A (1) (3) of criminal code, Sexual Penetration of a Child reads; -
   

(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.

5. Prisoner is liable by the conviction to be sentenced to life imprisonment because by application of subsection (3) he is her stepfather. There is existing relationship of trust authority and dependency given that she is his stepdaughter. His case is a very serious offence, but not the worst case to draw that sentence. He will be sentenced to a determinate term of years for his crime. But it remains grave that it is a very serious abuse of trust authority and dependency. His facts to which he has pleaded guilty will draw that sentence, Yalibakut v State [2006] PGSC 27; SC 890 (27 April 2006). One fact that comes out is the age gap with the complainant 28 years difference, she being only 14 years, and he 42 years old. She is now a mother at that age by his action having delivered a female child now looked after by the mother as her last-born child. Because of that fact her education has been ruined. Her future has been lost by his selfish action. He had no excuse to do what he did. Her mother his wife was there for him to satisfy his sexual urges. His selfish conduct has imposed a stigma that will remain for the rest of her life. The family life has been dented; trust is no longer there. It is a serious breach of trust that his wife the mother of the child had in him.
   
6. An adult a grown man to whom she looked up to as her father he took advantage of her vulnerability. This is the trust that is always there between parent and child. Here breached in the most intimate way by he, stepfather upon her stepdaughter. I take due account of the presentence report that has now being submitted before me. Seriously against the prisoner is the view in there that he lured her into the offence with promises of a mobile telephone with headset. She confirms that she submitted not of her voluntary consensual action. And he wasn’t content with the mother who did not give in to his sexual urges. She ignored him hence the offence. I do not find this as mitigating the offence against his conduct. She will live for the rest of her life that she was impregnated at that early age by her own stepfather. Then he told her to say that she was impregnated by a boy at the school. This is preplanning attempt to avoid the seriousness of his conduct. It is serious aggravation coupled and does not lower the impact of the offence even in the face of the guilty plea that he has entered. I do not consider that the views of the mother wife and the victim are on par with the sentencing trend to lower. Particularly when the facts are as grave set out above. And the class and head teachers of the school see the offence as very serious. Yes, she has returned to school but with that stigma of being pregnant and a mother of a female child at that age.
   
7. I am assisted by the submissions of both counsel for and against. Common is that the offence is a very serious offence. It is aggravated seriously and time in jail is warranted for each offence charged convicted. Defence counsel urged that it be 17 years IHL for each offence concurrent. He will be served accordingly as time is not differentiated nor is it an offence quite apart from each other. One leads to the other. But the fact remains that its own facts will draw sentence appropriate. I do not doubt that it is a crime of abhorrence, repulsion and should not be tolerated. It would not be erroneous to impose a stern deterrent and punitive sentence are in view. Because the Legislature has affirmed by the penalty it prescribes. And it’s very prevalent nature has seen instances before the court landing very stern penalties, State v Fego [2024] PGNC 14; N10663 (21 February 2024) is an example 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.
   
8. It is my view that time has not stopped nor deterred this offence. And I am fortified with views that this court has expressed repeatedly. This is clear that where there are series of offences committed the penalty will be reflected. In State v Peter Lare [ 2004] PGNC 218; N2557 (20^th May 2014)12 years IHL was imposed upon a 40-year-old prisoner who pleaded guilty to sexual penetration of a 10-year-old girl repeatedly over time. In State v Kutetoa [2005] PGNC 137; N2814 (22 March 2005) a 39-year-old prisoner was sentenced to 17 years in jail for sexual penetration of a 10-year-old girl. He had pleaded guilty to the charge under section 229A of the code. In yet another case before this court in kokopo 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. Penalties imposed will be considered comparable with the facts before me. They do not tie my hands down in considering but are guides helpful to work out the sum for the prisoner. And this regard I am swayed by the prosecution submission that 25 to 30 years is called for given my facts and circumstances here. Comparably this is not remote given the precedence that his court has seen set out above. I will not be falling into error to exercise direction that way given. I have the facts here warranting that sentence due the prisoner. But not cumulative but concurrent given the reasons set out above.
   
9. It remains fundamental that the sentencing discretion is never fettered or dictated in a certain direction or position. Because all matters raised in a case must be considered to the full extent due in law relevant with all other matters that are before it to arrive at a just sentence. The wishes expression of the victim are part and parcel of and together with all other matters that are placed before court will be given due weight according to law to arrive at a just sentence in law. Sentencing is not dictated or tied down by tariff or range but dependent on the facts and circumstances and tariff or range will be part of the process and will be considered on the level due to it, 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 principles of 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. Consent is not an element of both convictions but is a very relevant factor to account for trust authority and dependency as is the case here, Paul v State [2017] PGSC 33; SC1630 (3 November 2017). Which is an aggravating feature that will see sentence parallel for seriousness evidenced. Twenty-two (22) years for persistent sexual abuse contrary to section 229D (1) and (6) at first instance was confirmed by the Supreme Court and the appeal dismissed in Wartovo v State [2019] PGSC 11; SC1775 (1 March 2019).
   
10. And 17 years imprisonment was confirmed and the appeal against dismissed in Sabiu v State [2007] PGSC 24; SC866 (27 June 2007) 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 guilty plea, and the offender is 42 years old. But he was apt enough to commit the offence upon his 14-year-old stepdaughter. This is 2025 and the offence is ever prevalent. It must be stopped with punitive and deterrent sentences.
    
11. Here there are two separate counts drawing respective sentences. One was committed in proximity to the other. Digital penetration was followed by penial penetration. One gave effect to the other. Both are not separated in time and date and the complainant. A concurrent sentence will be imposed here given Kerua and Kerua, Public Prosecutor v [1985] PGSC 8; [1985] PNGLR 85 (1 April 1985). I consider that his case is similar to that of State v Talibe [2025] PGNC 21; N11151 (10 February 2025), that was an 8-year-old girl who was digitally and then penial penetrated by her 50-year-old biological father. He secured 25 years imprisonment 10 years for the digital penetration built into the penial penetration of 25 years.
    
12. Pregnancy has been imposed with delivery of a female child on a 14-year-old school pupil stepdaughter. The sacred family unit has once again seen the tentacles of lust coming from the supposed head of the family upon a child of the family. It is not a light matter when the stigma of that offence is a life sentence itself on the young 14-year-old. It has been imposed that she becomes a mother of a child. No child should be treated in this way in their family home. They are supposed to be protected free and enjoying life there to grow into woman hood. Fathers and male members of the immediate family who do this have no place in that family and in an orderly society. They belong to a place where they will not carry out their evil upon the family and society again. If the extreme is Kalabus v The State [1988] PGSC 17; [1988-89] PNGLR 193 (27 October 1988), here are facts circumstances that would be mid-range. Particularly drawn out by the persistent acts over time and pregnancy at 14 years old, and only a pupil in primary school.
    
13. I have had the privilege of the presentence report filed before me ordered of the Prisoner and the views of the victim and mother. The balance from that report lies not in favour of the prisoner, but towards the young girl and mother. She like any other same must not be a sex object tentacled by the lust of the father over a year in that home leading to pregnancy. I find no extenuating circumstances within this presentence other than to impose a very strong and immediate penal sentence reflecting. It is drawn out by the facts here. It is therefore very well planned and executed living out a life of one year in the home right under the nose of the mother. Pregnancy raised the alarm. It is not a light matter. And the allocutus does not align in favour of the prisoner. He ignites rather than quells the flame already burning against his evil conduct. No child should be subjected to like treatment be it stepfather, biological father, or any other male relative for the same. Man is different from all other animals and cannot behave in this manner without sanction of the law.
    
14. I do not find any material within the terms apparent or identifiable to warrant the footholds seen in Tardrew, Public Prosecutor v [1986] PGSC 10; [1986] PNGLR 91 (2 April 1986) for suspension of sentence. He is 42 years old grown man who had no excuse to do what he did because his wife the mother was there for him to satisfy his sexual urges. Her body comparably was apt for his sexual urges not this child, now forever stigmatized with the scares of pregnancy forever life long. He has apologised in his allocutus and asked for leniency. He has pleaded guilty and is a first offender. He has no formal employment record is self-employed. Having been educated to University of Technology 2000 to 2004 originally from Namau on Karkar, Madang Province. He has no prior criminal conviction. Weighed with the gravity aggravating they fall by the wayside as insignificant. He saved her giving evidence but forced her to become a mother at 14 years old. It will remain until she passes from this world. No amount of sentence would take the slate clean given. I am not bound by other national Court sentences that have been cited by counsel but will consider them as guides. I will follow what the supreme Court has voiced particulars set out above. This is a very serious offence that must draw a stern deterrent and punitive sentence.
    
15. I consider and determine in view of all above that the fair and proportionate sentence for the first count is 17 years imprisonment in hard labour given all set out above. In respect of count number two, he is sentenced to 25 years IHL. Because of the reasons I have expounded above I order that both sentences will be served concurrently.
    
16. Effectively he is sentenced to 25 years imprisonment in hard labour minus the time he has spent on remand. He will serve the balance in jail forthwith. And I so impose that upon the prisoner. Yes, he has pleaded guilty and is a first offender. But the young 14-year-old girl has been forced into motherhood at that age. That is her lifelong imprisonment nothing can take that away. He must bear that fact in the sentence due. In my view the guilty plea withers into nothing substantive compared to weigh against. I order that to be served minus the time on remand. He will serve the balance in jail forthwith.
    

Orders Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the defendant