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State v Diki [2025] PGNC 258; N11366 (13 June 2025)

N11366


PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


CR NO. 1059 OF 2024


STATE


V


DICKSON DIKI


ARAWA: TOLIKEN J
4, 12, 13 JUNE 2025


CRIMINAL LAW – sentence – sexual penetration of child under the age of 12 years – guilty plea – objectives of child abuse legislation considered – effects of child abuse considered – special considerations for sentencing offenders under Bougainville Constitution considered and applied – aggravating and mitigating factors considered – appropriate sentence – 9 years less time in pretrial detention – partial suspension appropriate on condition – Bougainville Constitution ss 13, 47; Criminal Code Ch. 262, s 229A (1)(2).


Cases cited
Lawrence Simbe v The State [1994] PNGLR 38
Gimble v The State [1988-89] PNGLR 271
Belawa v The State [1988-89] PNGLR 496
Ure Hane v The State [1984] PNGLR 105
Goli Golu v The State [1979] PNGLR 653
Manu Kovi v The State (2008) SC789
The State v Chandrol (2011) N4648
The State v Lawrence Mattau (2008) N3865
The State v Engi Hendrix: CR No. 385 of 2012


Counsel
Ms. P Matana, for the State
Mr. F Lugabai, for the prisoner


JUDGMENT ON SENTENCE


  1. TOLIKEN J: The prisoner pleaded guilty to one count of sexual penetration of child under the age of 16 years with a circumstance of aggravation – the child was below the age of 12 years, being 6 years old.
  2. This is an offence under Section 229A (1) and (2) of the Criminal Code (the Code). The prisoner is liable to life imprisonment subject to Section 19 of the Code.
  3. The brief supporting facts are that the 6-year-old girl victim (whose name I shall not mention in this judgment to protect her privacy), and the prisoner who was 22 years old at the time of the offence are from Boira Village, Kieta, Autonomous Region of Bougainville.
  4. On 15 January 2024, the victim was playing on a swing outside her family’s kitchen. The prisoner approached her and told her to go in and lie on a bed in the kitchen. The victim did as she was told. The prisoner then followed her in, removed his clothes and the child’s and sexually penetrated her by inserting her penis into her vagina. He, however, hurriedly put on his clothes when he noticed a boy approaching them.
  5. The child reported the accused to her mother who later took her to the hospital for a medical examination. Vaginal examination by a Nursing Officer (Sr. Immaculate Keaito) revealed the following injuries which confirmed that the child was sexually penetrated:

“...no blood stains, no vaginal discharge, some bruising at the perineum, obvious lacerations x 4 at inner lips. (x 2 at the right and x 2 at the left of the labia minora)

  1. Sexual abuse of children is a grave offence for which Parliament had decreed stiff penalties for. Sexual penetration of a child without circumstances of aggravation such as breach of trust or where the child is below 12 years, carries a maximum penalty of 25 years. However, where circumstances of aggravation exist, then an offender may be goaled for life, subject to the Court’s discretion to impose a lighter sentence under section 19 of the Code.
  2. I must therefore determine an appropriate sentence for the prisoner.
  3. At this juncture, it is perhaps instructive to briefly discuss the rationale behind child protection legislation and the purposes and objectives of sentencing child abuse offenders.
  4. The policy underpinnings the creation of sexual offences against children is simple – the protection of these most vulnerable members of society from all forms of sexual abuse and exploitation. Sexual abuse of a child in all its form is an abomination and a scourge against the most vulnerable and defenseless members of society and society at large. The damage done to survivors is immeasurable. While some survivors manage to forget their experiences over time, unfortunately for some, time does not always heal. They are essentially condemned to a life of self-guilt, feelings of worthlessness and emotional and psychological trauma.
  5. To that end I reiterate what I said in The State v Henry Morris (2020) N9220, where I sentenced the offender to 11 years imprisonment for sexually penetrating his 12-year-old sister-in-law. There I said:

[7] ... sexual offences against children are probably the most abhorrent of sexual offences because offenders target the most vulnerable members of society – children - who deserve to be loved, nurtured and guided by parents and guardians so that they grow into stable and morally upright members of society. Homes are supposed to provide security for children. Unfortunately, most of the abuse happen in the safety of the family home. Abusers are usually persons who are known or related to victims, persons who in most cases stand in positions of trust in respect of these children. When abuse happens in the safety and sanctity of the home or other places where children are raised, educated, or offered spiritual guidance for instance, perpetrators must be severely punished for this grave dereliction of moral and legal duty and obligation.


[8] Sexual abuse is a global issue hence the United Nations Convention on the Rights of the Child (CRC) obligates member countries to legislate for the protection of children from sexual abuse, among others. Our Parliament had ratified the Convention and accordingly introduced new offences into the Criminal Code, one of which is offence you pleaded guilty to. (Criminal Code (Sexual Offence and Crimes Against Children Act 2002). This amendment to the Code provided very stiff penalties for sexual abuse that are committed by persons who stand in positions of trust - life imprisonment. This reflects Parliament’s intention, which is clearly that persons who abuse children, more so, those who stand in positions of trust and abuse that trust must be severely punished.


[9] To that end, it is well worth repeating what the Supreme Court said in Stanley Sabiu v The State (2007) SC 866 (Mogish J, Manuhu J, Hartshorn J) when dismissing the appellant’s appeal against a sentence of 17 years for sexually penetrating his 6-year-old nephew. The court said at paragraph 10:

... In our view Parliament has clearly stated that the sexual penetration of children should be severely punished and that the sexual penetration of children under the age of 12 years is the more serious, hence the larger maximum penalty. ... We are of the view that the starting point in a case involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than 15 years imprisonment.

  1. Further down at paragraph [33] I cited an excerpt from the Queensland Government website which I felt aptly summarized the negative effects sexual abuse has on children survivors. It read:

“... while children respond differently to abuse, the effects on them can be very significant and long lasting. And while it should be noted that the impact of abuse will not be noted in some children, most may experience a range of emotional, psychological and physical problems including –

(See www.qld.gov.au/community/getting-support-health-social-issue/support-victims-abuse/child-abuse/what-is-child-abuse/child-abuse-effects)

We can therefore appreciate the devasting effects sexual abuse can have on children, and the intention behind child abuse legislation such as those introduced into our Criminal Justice System and Criminal Law.”

  1. Getting back to the instant case, the prisoner is about 23 years old and comes from Boira Village outside of Arawa. He is a member of the Seventh Day Adventist Church and attends Sabath service occasionally.
  2. Like many young men and women in the Region whose education was disrupted or missed out on education altogether during and immediately after the Crisis, he enrolled in school late in life and is doing Grade 5 at Anamona Primary School. It appears that he is fatherless. His mother died when he was very small, and he was and is presently being raised by his grandfather. He has no criminal record and had spent some time in custody before bail.
  3. He is timid, soft-spoken and lacking in confidence which can be attributed to his upbringing, having grown up mostly in the absence of a father and later without the care of his mother.
  4. He did not say much when asked to address the Court on sentence except to say he was sorry for his offence.
  5. The prisoner’s presentence report (PSR) is a balanced one. It captured the views of the prisoner, his grandfather and guardian Francis Maramo, and the victim’s uncle David Riki.
  6. The prisoner and the victim belong to the same extended family. They are regarded as cousins three times removed. According to local custom, the prisoner had to pay K70.00 to the victim’s family for what is called “pasim iau” (block the ear) which I take to be akin to “bel kol” which is practiced in parts of the country such as up the Highlands provinces.
  7. Messrs Maramo and Riki expressed the common view of the two extended families for reconciliation and restoration of their strained relationship. The victim’s family wants the prisoner to pay compensation which the prisoner and his grandfather are willing to pay. They offered to pay K1500.00 compensation. Mr. Maramo pleaded on behalf of his grandson for a non-custodial sentence so he can continue with his education.
  8. Ms. Matana urged the court to impose a punitive and deterrent sentence as well as give effect to Parliament’s intent to protect children when it passed amendments to the Code. A sentence of 10 – 15 years will achieve that. This, counsel submitted, is justified by several aggravating factors which include the following:
  9. These factors counsel said outweighed the prisoner’s mitigating factors.
  10. Mr. Lugabai submitted for a sentence of 9 to 12 years. Counsel referred me to the guidelines enunciated by Cannings J in The State v Penias Mokei (No. 2) (2004) N2635 and The State v Biason Benson Samson (2005) N2799 which the Supreme Court cited with approval in Sabiu v The State (2007) SC866. The considerations are:
(e) Whether the offender used a threatening weapon or aggravated physical violence.
(f) Whether the offender cause physical injury or infect the victim into a sexual transmitted infection.
(g) Whether there was existing relationship of trust, dependency or authority and if there was, how close.
(k) Whether he has done anything tangible such as offering compensation to the victim of her family or apologizing or reconciling with them personally or publicly.
(l) Whether he has caused further trouble to the victim and her family since the incident.
(p) Whether he can be regarded as a youthful offender or his personal circumstances are such that they should mitigate the sentence.
(q) Whether there are other circumstances of the incident or the offender that warrant mitigation of the head sentence.
  1. Counsel submitted that when prisoner’s circumstances are considered against these considerations, the preponderance weigh in favour of the prisoner. I will deal with these in detail presently. It will be noted though that these factors can either mitigate or aggravate the offence.
  2. Counsel also cited several mitigating factors which I shall presently address as well. The prisoner has a favourable PSR, but Mr. Lugabai left it for the court to exercise its discretion whether to suspend the sentence.
  3. I now move on the prisoner’s aggravating and mitigating factors.
  4. Against him are the following factors most of which were cited by Ms. Matana and which I agree with:
  5. In his favour though are the following mitigating factors:
  6. The general principles of sentencing are that only the worst instances of offending – for any offence – will attract the maximum penalty. Each case must be treated on its own facts and circumstances and the sentence must be proportionate to the crime itself. (Goli Golu v The State [1979] PNGLR 653; Lawrence Simbe v The State [994] PNGLR 38; Ure Hane v The State [1984] PNGLR 105)
  7. While sexual penetration of a child under 16 years of age is a grave and serious offence that is deserving of sever punishment, Parliament in its deliberate wisdom recognized that the defilement and degradation of children under 12 years is so abhorrent that it prescribed a higher penalty for it – life imprisonment.
  8. The Supreme Court in Sabiu v The State (supra) as we have seen above, gave effect to this and held that the starting point for the sexual penetration of a child under 12 years ought to be 15 years. The offender there appealed against his sentence of 17 years for sexually penetrating his 6-year-old nephew in the anus. The Court dismissed the appeal and affirmed the sentence of 17 years.
  9. Justice Batari in The State v Chandrol (2011) N4648 took issue with the Supreme Court’s apparent recognition of a tariff system suggesting instead that terms ought to be fixed within a range of sentences for aggravated sexual penetration. In practice both methods are used by sentencing judges which in my view falls within the court’s sentencing discretion unless Parliament decrees otherwise. It is worth mention that the Supreme Court appears for some time now to be leaning towards a tariff system. See for instance the sentencing guidelines for homicide offences, offence of dishonesty, and robbery (Manu Kovi v The State (2008) SC789; Belawa v The State [1988-89] PNGLR 496; Gimble v The State [1988 – 89] PNGLR 271)
  10. Be that as it may, the Supreme Court has spoken. The guidelines it has suggested, however, do not have the effect of curtailing or removing a sentencing court’s sentencing discretion. Parliament has not prescribed a minimum penalty for this offence hence I am within my discretion to impose what ever sentence is appropriate to the facts and circumstance of the case while not forgetting the objects of sentencing for this category of offence – the protection of children from all forms of sexual abuse and exploitation. In this case I shall take the Sabiu approach and set a starting point of 15 years.
  11. This is a serious case, further aggravated by the fact that the victim was 6 years below the threshold of 12 years. The prisoner must be given a sentence that will send a message to him and others that the sexual abuse of children will not go unpunished.
  12. The aggravating factors appear to be overwhelming. However, the offender also has significant factors weighing in his favour. A quick glance at the considerations suggested in Mokei and Benson Samson which the Supreme Court adopted in Sabiu, as urged upon me by Mr. Lugabai attest to this.
  13. The offender acted alone, he did not use any weapons or threaten the victim, this was an isolated incident, he did not infect the victim with an STI, he co-operated with the police, he has initiated the initial step of reconciling with the victim and her family as is the custom in his society to be followed by a full reconciliation, he has not caused further trouble, pleaded guilty, expressed remorse, and is a first-time youthful offender.
  14. Of course there are significant aggravating features as well. For instance, the victim was well below 12 years and much, much well below the age of consent. She suffered injuries to her genitalia, there was an age difference of 15 or 16years, they were related being cousin three times removed hence there exited a relationship of trust between them, the prevalence of this type of offence, and of course there is the psychological effect the experience had and will continue to have on the victim.
  15. Counsel cited several comparative cases to me. In most of those cases the victim was of average age of 9 years. The offenders there received sentences ranging 9 to15 years.
  16. A case on point, however, is that of The State v Engi Hendrix: CR No. 385 of 2012. The offender there pleaded guilty to sexually penetrating the 5-year-old victim whom he stood in a position of trust. He was sentenced to 10 years imprisonment which was then partially suspended.
  17. Considering all the circumstances of this case and the comparative sentences, I think that a head sentence below the starting point of 15 years is warrant. A sentence of 9 years would be appropriate. I therefore sentence the prisoner to 9 years imprisonment.
  18. Is this an appropriate case to consider a suspension? I think it is. The prisoner has a good presentence report which is balance. There is a desire for reconciliation by the relatives of both victim and prisoner so the damaged relationship between them can be restored. This will no doubt require the involvement of traditional chiefs and the invocation and application of customary processes.
  19. This desire for customary reconciliation and restoration of relationships find support in no lesser authority then the Bougainville Constitution, Section 13 of which calls for the strengthening of customary authority. Subsection (4) recognizes that an important role of customary authorities is the maintenance of a system of justice in the society. Subsection (4) therefore relevantly provides –

...


(4) The customary system of justice in Bougainville based on the restoration of peace through the restoration of harmony in relationships between people shall be recognised and reinforced to the extent not contrary to Christian principles.

41. Section 15 (PURSUIT OF PEACE, REHABILITATION, RECONCILIATION AND HARMONY) further provides that -

(1) In order to achieve and maintain peace at all times, mediation, reconciliation and harmony shall at all times be pursued as means of resolving disputes, and the use of violence shall be avoided.
  1. Section 45 importantly calls for the development of a Criminal Law Policy for Bougainville which, as far as is practicable shall, among other things shall:

(b) incorporate customary practices and norms into the development and implementation of criminal law in Bougainville.

43. Even though Bougainville has yet to develop a Criminal Policy, what is clear is that the above provisions provide a clear path and direction on how criminal justice in Bougainville should operate. Kandakasi J had the occasion to consider these provisions in detail and apply them in the case of The State v Lawrence Mattau (2008) N3865. The offender pleaded guilty to unlawfully killing his nephew for having an affair with his wife. He was sentenced to 10 years which was wholly suspended principally on the application of these provisions. At [45] his Honour said:

  1. In my view, the intention of the people of Bougainville through their Constitution is very clear. They made a deliberate decision to make their customary system of justice, which is based on the family, clan and traditional chieftain and other system of traditional leadership and the peoples'' relationships within these structures or units is to be an integral part of the formal introduced justice system. This intention is clearly expressed elsewhere in the Bougainville Constitution as in s. 115 which provides for a Bougainville law providing for the resolution of disputes through alternative dispute resolutions such as arbitration and reconciliation which is to utilize and draw from customary dispute resolution and reconciliation practices and the role of traditional chiefs and other traditional leaders. Indeed, I note that, peaceful and or non violent or forceful means of resolving conflicts through mediation or reconciliation is the preferred means of resolving any conflict between the National Government and the Autonomous Bougainville Government. Provision for this is in sections 333 to 336 of the National Constitution.
  2. I wish to join his Honour here and give effect to these Constitutional imperatives. However, I do not lose sight of the fact that offenders must be held accountable by the law for their criminal behaviour. Justice is not justice at all without accountability. The victim here demands justice as well and the Court will be failing its duty to protect her if it fails to hold the person who violated her accountable.
  3. Hence, the prisoner here must be held accountable for defiling and degrading his victim who was but merely 6 years old. Nine years imprisonment is not out of proportion to what similar offenders have received elsewhere in the country.
  4. However, guided by constitutional mandate that applies uniquely to Bougainville, while recognizing the prisoner’s peculiar personal circumstances, and the need for reconciliation and restoration of damaged relationship, against the need to protect children from sexual abuse and exploitation, I feel the need to impose a partial suspension of his sentence.
  5. I take note of the prisoner’s and his grandfather’s desire for him to continue with his education. A good education for him no doubt has a flow on effect on his children should he decide to have a family of his own one. I shall accord him that opportunity, but he must serve a portion of his sentence. I do not intend to follow Lawrence Mattau entirely. The prisoner will have to serve 2 years of his head sentence while the balance will be suspended upon him entering into probation with conditions.
  6. I therefore sentence the prisoner to 9 years imprisonment less the time spent in custody prior to being granted bail.
  7. The prisoner shall serve 2 years of his resultant sentence. The balance shall be suspended upon him entering into probation for a period of 5 years with the following conditions –

Ordered accordingly.
________________________________________________________________
Lawyer for the State: H Roalakona, Acting Public Prosecutor
Lawyer for the prisoner: L B Mamu, Public Solicitor

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