N11163

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 173 AND 1923 OF 2023

THE STATE

V

SAM KETENG KISSI
(No 4)

WAIGANI: BERRIGAN J
20 NOVEMBER 2024; 28 FEBRUARY 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 350(1)(a)(i), Criminal Code – Abduction – Section 229A(1)(2), Criminal Code – Sexual penetration of a child under the age of 12 – Abduction and sexual penetration of 10 year old girl – Sentences of 4 and 22 years of imprisonment, respectively, to be served concurrently with each other.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 350(1)(a)(i), Criminal Code – Abduction – Section 229A(1)(2), Criminal Code – Sexual penetration of a child under the age of 12 – Abduction and two counts of sexual penetration of different 10 year old girl on a separate occasion – Sentences of 5, 22 and 24 years of imprisonment, respectively, to be served concurrently with each other.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 350(1)(a)(i), Criminal Code – Abduction of 13 year old girl, whilst on bail for earlier offences – Sentence of 6 years of imprisonment.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Cumulation of sentences against each of the girls appropriate, subject to principle of totality – Offender more than an ordinary danger to the community, in particular young girls – Effective sentence of 32 years of imprisonment imposed.

Cases cited

Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Aubuku v The State [1987] PNGLR 267
Goli Golu v The State [1979] PNGLR 653
Hindemba v The State (1998) SC593
Ian Napolean Setep v The State (2001) SC666
Inai v State (2019) SC1792
James Mora Meaoa v The State [1996] PNGLR 280
Koribiseni v State (2022) SC2296 
Lawrence Simbe v The State [1994] PNGLR 38
Mankia v State (2020) SC2199 
Mari v The State (2007) SC1147 
Mase and John v The State [1991] PNGLR 88
Mase v The State [1991] PNGLR 88 
Meaoa v The State [1996] PNGLR 280
Nawa v State (2007) SC1148 
Palam v State (2024) SC2546 
Public Prosecutor v Kerua [1985] PNGLR 85  
R v Young [1973] Crim LR 585
Regina v Peter Ivoro [1971-72] PNGLR 374
Sabiu v State (2007) SC866 
State v Aru (2016) N6917
State v Babia (No 2) (2023) N10571
State v Bobby (2022) N9557
State v Clement (No 2) (2022) N10351
State v Erick (2024) N10882
State v Fego (2024) N10663
State v Guise (No 2) (2024) N10957
State v Gumanawabu (2015) N6842
State v Gurang (No 2) (2021) N9137
State v Kivung (2008) N3519
State v Koi, CR No.1204 of 2013, unreported
State v Lumou (2004) N2684
State v Mariano [2000] PNGLR 240
State v Mea (2022) N9714
State v Melly No 2 (2009) N3779
State v Noelo (2023) N10631
State v Ombi (2004) N2552
State v Richard Namaliu (2020) N8506 
State v Timothy (2023) N10155
State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
The State v Benedict Simanjon (2020) N8637
The State v Biason Benson Samson (2005) N2799 
The State v Biason Benson Samson (2005) N2799 
The State v Damien Mangawi (2003) N2419
The State v Hambo (2010) N4120
The State v James Paru (No 3) (2021) N9248
The State v John Ritsi Kutetoa (2005) N2814
The State v Noki (1993) N1166
The State v Raumo (2007) N4983
Thomas Waim v The State (1997) SC519
Tremellan v The Queen [1973] PNGLR 116
Ume v The State (2006) SC836  
Wera v State (2023) SC2367

Counsel

E Kave for the State 
B Popeu for the offender 

DECISION ON SENTENCE

1.	BERRIGAN J: The offender was convicted following trial of three counts of abduction, the taking away of a woman against her will with intent to carnally know her, contrary to s 350(1)(a)(i) of the Criminal Code, for which the maximum penalty is seven years of imprisonment, and three counts of sexual penetration of a child under the age of 12 years, contrary to s 229A(1)(2), Criminal Code, for which the maximum penalty is life imprisonment.

2.	During a period of about four weeks the offender abducted three young girls on three separate occasions.  He sexually penetrated the first two girls, both of whom were 10 years old. The third child, 13 years old, managed to escape. 

3.	On 24 September 2018 the offender abducted a 10 year old girl, SR, as she walked home from school. He blocked her path as she tried to cross the road and then lured her into his vehicle by asking her about another girl, pretending to know her father and promising to take her home. Once in the vehicle, he took her away and drove about to various places around Port Moresby, to Vision City to buy fuel, to Two Mile to buy food, down to Ela Beach, into Town and then to a car park near the stadium at Konedobu. There he directed her to move to the back seat of the car and remove her clothes before he removed his clothes and forcefully penetrated her vagina with his penis causing immense pain, which he ignored. Afterwards they dressed and he drove about again for some time before eventually dropping her on the side of the road near where he had picked her up several hours earlier. The victim suffered a tear to the fourchette measuring 1 cm deep and extending 2 to 3 cm from the entrance of the vagina towards the cervix and posterior fornix. The injuries required immediate surgery and hospitalisation for several days.

4.	The offender struck again less than two weeks later. On 25 October 2018 he returned to the same place and abducted another young girl, VP, also 10 years old, as she walked home from school. Again, he persuaded her into the vehicle by asking her about another girl, pretending to know her parents and promising to buy her lunch and a phone. He took her away to Datec, in Gordons, telling her stories about carrying her as a baby. At Datec he left her in the vehicle for some time before returning to take her to Hanuabada where he got out to buy betelnut. By this stage she was afraid and moved to the back seat. He told her to get back into the front seat and took her to the car park near the stadium at Konedobu where he ordered her into the back seat, told her to remove her clothes and lie down before repeatedly forcing his penis into her vagina during which he caused severe pain in response to which he told her to “shut up”. Afterwards he drove about again, this time to a residential block in Korobosea where he told her he would build a house and they would marry and live together. He then drove to KMC at Boroko where he parked. By this stage it was getting dark. He forced her to go to the back seat before forcefully penetrating her vagina again with his penis, causing excruciating pain to the point that despite her desperate plea, she defecated. He carried on regardless. Eventually, he dropped her at the side of the road near where he picked her up. Again, the victim required urgent surgery and hospitalisation for several days.

5.	Due in very large part to the efforts of the victims’ families acting separately to provide information to police, the offender was apprehended on 10 October 2018. He was charged with offences against both SR and VP but for reasons known only to the officers concerned, was released on bail on 13 October 2018. 

6.	Relentless, the offender struck again, less than two weeks later, on 25 October 2018. He moved to a different part of town, to 6 Mile, and removed a distinguishing sticker from his vehicle, but essentially his approach remained the same. He followed EK, a 13 year old girl, in his vehicle as she walked to the 6 Mile markets. She tried to ignore him but he persisted. Eventually she agreed to buy a tok card for him. He told her he felt sorry for her and promised to buy her lunch, promising her she could trust him when she tried to refuse. Once again he took her away once she was in the vehicle, to Five Mile, Unagi, and Boroko but she soon realised that something was wrong when he refused to drop her off as they drove past her brother’s office and repeatedly refused her requests for him to stop the vehicle. He became aggressive, told her to “shut up” and threatened to kill her. When she cried and begged him to stop, he punched her face and told her to be calm, he was going to take her and kill her. In desperation, she grabbed the steering wheel causing the vehicle to crash into the side of the road near the Manu roundabout, ultimately resulting in the offender’s apprehension. 

Submissions on Sentence

7.	The State submitted in aggravation that the children were very young and vulnerable, the offence was pre-planned, the offender had no fear of being caught, the sexual penetration of SR and VP required surgery, EK was punched in the face when she tried to escape, he threatened the girls whilst in the vehicle, there was a large age disparity between him and the girls, the offender was a lawyer and aware of the law, the offence against EK took place whilst he was on bail for the offences against SR and VP, and the victims had to relive the event because it was a trial matter. The offences are serious and prevalent and there is a need to deter others. Whilst sentences higher than 17 years of imprisonment have not been imposed with respect to s 229A this case should be distinguished. The offences were premediated, he was a serial offender, and a real threat to the community. The offences have destroyed the victims’ lives. 
 
8.	The State submitted that the offences warranted sentences of 5 to 7 years for abduction and 25 years to life for sexual penetration, or an effective life sentence.  It referred to the following comparative cases for abduction contrary to s 350(1)(a)(i), Criminal Code: 

a)	State v Kivung (2008) N3519, Paliau AJ: The prisoner was a crew member of a PMV bus which the victim boarded to return to her village from Kokopo between and 4 and 6 pm. The offender threatened and forced the victim to remain on the bus and the bus returned to Kokopo where the offender and the victim were dropped off before the offender took the victim to his village where he threatened and tried to force the victim to have sexual intercourse with him but she refused. At around midnight, the neighbours came to her rescue when they heard her cries. He pleaded guilty and was sentenced to 1 year of imprisonment less time spent in custody, the balance of which was suspended;
b)	State v Ombi (2004) N2552, Kandakasi J: The 17 year old offender was found guilty after trial of one count of the abduction and one count of the attempted rape of his much younger blood cousin. She went to the creek in her village to collect some water when he grabbed her and dragged her into a nearby bush, removed her trousers and underwear, putting her face down and trying to anally rape her before he was stopped by her father who was alerted by her screams for help. He was sentenced to 9 years for attempted rape and 4 years for abduction, to be served concurrently; 
c)	State v Lumou (2004) N2684; Kandakasi J: the offender was convicted following trial of sexual penetration contrary to s 229A(1) for which the maximum is 25 years. The 22 year old offender followed his 14 year old niece to school, grabbed her and dragged her into the bush threatening to cut her with a bush knife and shut her mouth. He pushed her to the ground before penetrating her with his penis until he was satisfied before telling her to go school. He was sentenced to 17 years of imprisonment. 

9.	It referred to the following cases in which sentences for rape under s 347, Criminal Code were imposed: 

a)	Mase and John v The State [1991] PNGLR 88: the offenders pleaded guilty to abduction, robbery and rape, for which they were sentenced to 4, 8 and 10 years, respectively, with an effective sentence of 18 years. The Supreme Court by majority found no error in the discrete sentences but reduced the sentences for rape and robbery by two years each to give an effective sentence of 14 years having regard to the principle of totality; 
b)	The State v Noki (1993) N1166, Woods J: The offender was part of a group that raided a settlement and abducted two women and raped them. One, a 13 year old girl, required hospitalization for her injuries. He was sentence to 6 years on each count of abduction and 15 years on each rape, to be served concurrently;
c)	James Mora Meaoa v The State [1996] PNGLR 280, the offender was the operator of a boat and two other men assisted the victim who was 12 years old to shore after their boat capsized. The offender threatened to kill her and took turns raping her with the two other men resulting in internal injuries so severe they would render it difficult for her to have children in the future. The Supreme Court dismissed the appeal against a sentence of 14 years; 
d)	Thomas Waim v The State (1997) SC519: the victim was abducted whilst walking with her boyfriend towards the university campus. She was taken away and seven men took turns in raping her at four different locations over a period of time, some indulging in forced anal and oral sex as well as vaginal sex and subjected her to other indignities. The appellant was the initiator and leader in all of these incidents.  He was sentenced to an effective sentence of 25 years after pleading guilty. Whilst recognising that the guidelines in Aubuku v The State were inadequate, the Supreme Court reduced the sentence to an effective sentence of 18 years finding that it was a quantum leap from more recent sentences and in view of the weight to be given to the guilty plea and noting the absence of weapons or long-term physical injuries;
e)	Hindemba v The State (1998) SC593: The 20 year old appellant pleaded guilty and was sentenced to 10 years which was increased by the Supreme Court to 15 years;  
f)	State v Mariano [2000] PNGLR 240, Jalina J: the offender was convicted after trial of abduction and rape and sentenced to five and 20 years, to be served concurrently. He and three others abducted the victim as she was on her way to work, threatening to kill her with a piston and bush knife, before raping her until they ran off when others approached;
g)	Ian Napolean Setep v The State (2001) SC666.  The offender had escaped from prison where he was serving a 30 year sentence for wilful murder. He and other men abducted the young victim from the house where she was sleeping and took her to various places during the night where she was repeatedly raped by various men who were known to her. She escaped only when the appellant fell asleep. She was knocked unconscious at one point and suffered lacerations, bruises and injuries to her body and genitals. The offender was sentenced to life imprisonment to be served concurrently with his sentence for wilful murder. The Supreme Court reduced the life sentence to one of 25 years on the basis that the sentence was a quantum leap from those previously imposed, in particular by reference to Waim v The State but ordered the sentence to be served cumulatively to the wilful murder sentence being totally unrelated; 
h)	The State v Damien Mangawi (2003) N2419, Kandakasi J: The offender, a 16 year old boy, pleaded guilty to the sexual penetration of a 3 year old girl. The charge was brought under section 213 of the code (prior to amendments) and he was sentenced to 12 years with the court stating that victims of such offences suffer long term psychological problems and further past sentences have failed to deter like offenders;
i)	The State v Raumo (2007) N4983, Cannings J: The offender who was 25 years old sexually penetrated the victim aged 6 by inserting his finger into her vagina. He pleaded guilty and was sentenced to 10 years;
j)	State v Melly No 2 (2009) N3779, Makail J: The court convicted the offender after trial of sexually penetrating the victim who was 15 years old and sentenced the offender to 8 years of imprisonment;
k)	The State v Hambo (2010) N4120, Cannings J: The offender, a 62 year old widely respected pastor in the village, lured three victims, aged 8, 8 and 12 years on two separate occasions into his house on the pretext of blessing them with oil to give them knowledge before touching one or other of their breasts, vaginas or buttocks. He pleaded guilty to some charges and was convicted of others. He was given an effective sentence of 9 years reduced to 6 years because of his advanced age and medical condition and applying the totality principle;
l)	State v Aru (2016) N6917, Polume-Kiele J: The offender pleaded guilty to sexually penetrating his 9 year old cousin, was sentenced to 15 years in hard labour having regard to his position of trust and the presence of some pre-planning.

10.	Defence counsel submitted that a sentence of less than 2 years for each of the abduction charges was appropriate having regard to Kivung, supra.

11.	On s 229A(1)(2), Criminal Code defence counsel submitted that a sentence in the range of 15 to 17 years of imprisonment was appropriate. In support he referred to State v Mea (2022) N9714, Wawun-Kuvi, AJ, in which the offender and the 10 year old victim were residing in one home. The offender was a friend to the child’s maternal uncle. The offender grabbed the child after she went to get water from the refrigerator. He closed the door and held the victim by the throat and closed her mouth. He removed her clothes and his as well. He kissed the victim on the mouth and neck and sexually penetrated her vagina with his penis. The offender covered her mouth and threatened to kill her when she attempted to shout out. She escaped when she bit him and ran away. The child informed a friend, and the matter was subsequently brought to her parents’ attention. The offender pleaded guilty and was sentenced to 17 years of imprisonment.

12.	Finally, that an effective sentence of 15 to 17 years of imprisonment should be imposed, all sentences being imposed concurrently.

Consideration

13.	Section 19 of the Criminal Code provides the Court with broad discretion on sentence.  I remind myself that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653, that is, whether the offence is so grave as to warrant the imposition of the maximum penalty. Whilst the maximum penalty should be reserved only for the worst sort of cases, that is not to say that the case must be “the very worst in the book” (Goli Golu v The State [1979] PNGLR 653) or the worst imaginable example of the offence (see The Queen v Kilic (2016) 259 CLR 256). 

14.	Consideration must be given to protection of the community, punishment, rehabilitation and deterrence: Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510. 

15.	Whilst I appreciate the large number of cases provided by the State they must be approached with some caution. Many are decades old and from a time when the serious long-term impact of sexual violence was not always well recognised. There is now much greater understanding. Critically, all but four predate the amendments to the Criminal Code enacted more than twenty years ago in 2002 by Parliament to expressly address sexual violence against children. 

16.	Having reviewed a large number of reported decisions a number of matters are apparent. The first is that the Supreme and National Courts have repeatedly denounced sexual violence against children as particularly serious warranting severe penalty. 

17.	As long ago as 1998 the Supreme Court in Hindemba, supra upheld an appeal against a sentence of 10 years imposed on a guilty plea and substituted a sentence of 15 years. Whilst for rape it was in some respects similar to this case.  The offender grabbed a 10 year old girl as she was returning from school, carried her into the nearby bush, threatened her with a pocket knife, refused to let her go when her sister intervened to free her and had sexual intercourse with the victim by force. The victim was in immense pain and her vagina bled. On a cross-appeal by the State, the Supreme Court found that although the trial judge did mention the frightening nature of the offence on the young victim, and the seriousness and prevalence of the offence generally and the need to protect young school girls, His Honour failed to fully appreciate the total circumstances of the offence and the need to impose a punitive and deterrent sentence having regard to the perversion of the offender, the injuries caused and the likely long term impact of the offence. It increased the sentence to 15 years of imprisonment. As the Court observed “it is indeed a frightening thing when school children of this age are not safe from simply attending school”. 

18.	In Sabiu v State (2007) SC 866 the Supreme Court dismissed an appeal against a sentence of 17 years being “more than satisfied” it was open to the National Court on a charge of sexually penetrating a child under the age of 12 years, contrary to s 229A(1)(2). The appellant followed his 6 year old nephew into the bush and forcibly had anal intercourse with him causing bruising, bleeding and pain.  He pleaded guilty, paid some compensation, and there had been a restoration of the broken relationship with the family of the victim.

19.	In Sabiu the Court suggested a starting point in a case involving a victim under the age of 12 years of 15 years’ imprisonment. In doing so it had regard to the starting point identified by Cannings J in The State v Biason Benson Samson (2005) N2799 which concerned the sexual penetration of a 13 year old girl contrary to s 229A(1) which attracts a maximum of 35 years and other sentences.  

20.	In Nawa v State (2007) SC1148 the applicant pleaded guilty to the sexual penetration of his 8 year old step-daughter contrary to s 229A(1)(2). The Supreme Court reduced the sentence from 20 years to 17 on the basis that he was sentenced on the basis of matters in aggravation to which he did not plead guilty, in particular a number of past offences. 

21.	In Mari v The State (2007) SC1147 the applicant pleaded guilty to sexual penetration of a child under the age of 16 contrary to s 229A(1). The trial judge misdirected himself as to the maximum because although the relationship of trust could be taken into account in determining sentence it was not charged by the State and therefore the maximum was 25 years not life. In addition, the trial judge erred in sentencing on the basis of matters in aggravation to which he did not plead guilty, in particular past offences. The Supreme Court substituted a sentence of 20 years with one of 15 years. 

22.	Those cases are now almost twenty years old, were determined at a time not long after the introduction of s 229A, and all concerned guilty pleas.  More recent cases suggest an increasingly severe approach by the Supreme Court. 

23.	In Inai v State (2019) SC1792 the Supreme Court dismissed an appeal against a sentence of 20 years. The offender pleaded guilty to the sexual penetration of a child less than 16 years, in relationship of trust, namely his daughter, then 14 years, contrary to s 229A(1)(3), Criminal Code, for which the maximum was life.  It was a single incident without injury. The Supreme Court rejected submissions that the trial judge erred in identifying a starting point of 25 years having regard to Sabiu emphasising that the identification of a starting point is in the entire discretion of the Court. 

24.	In Mankia v State (2020) SC2199 the Supreme Court dismissed an appeal against a sentence of 15 years in which the 60 year old offender pleaded guilty to sexually penetrating his 15 year old granddaughter with his penis contrary to s 229A(1)(3). In doing so the Court expressed the view that the trial judge properly took account of the offender’s advanced age noting that the trial judge would have imposed a sentence of 18 years but for that fact.  

25.	In Koribiseni v State (2022) SC2296 the offender, a teacher, pleaded guilty to digital penetration, namely inserting his finger into the vagina of a 9 year old girl contrary to s 229A(1)(2) and touching the vagina of another 10 year old girl contrary to  229B (1)(a), (4) & (5) Criminal Code on two separate occasions. The Supreme Court upheld a review against sentence of 15 years and 7 years, to be served cumulatively, i.e. 22 years, on the basis that the trial judge had taken into account several other alleged offences against other girls not the subject of the plea. It sentenced him to 13 years and 5 years, respectively, to be served concurrently. 

26.	Most recently in Palam v State (2024) SC2546 the Supreme Court dismissed an appeal against a sentence of 15 years imposed following trial for the abduction and sexual penetration of a child under the age of 16 years, being 13 years of age, contrary to s 229A(1), Criminal Code for which the maximum is 25 years. The complainant suffered bruising to her face and bruising and lacerations to her vagina. Noting the age of the child, the age difference between the applicant and the complainant, the relationship of trust given the offender’s longstanding relationship with the victim’s family, the Court indicated that it might well have increased the penalty had the State filed a cross-appeal. 

27.	A review of the National Court authorities shows that sentences have varied. As observed by the Supreme Court in Sabiu at [8] and [9] sentences imposed not long after the offence came into force ranged from 8 to 20 years: The State v Peter Lare (2004) N2557, The State v Pennias Mokei (No 2) (2004) N2635, The State v Eddie Trosty, (2004) N2681, The State v Kemai Lumou (2004) N2684; The State v Biason Benson Samson (2005) N2799; The State v Thomas Angup (2005) N2830, The State v Binga Thomas (2005) N2828, The State v.Kutetoa (2005) N2807, The State v. Alois CR 236/05 Kokopo, The State v. George Taunde (2005) N2807, The State v. Ndakum Pu-Uh (2005) N2949 and The State v. Ella Yasu (2007) CR 961/06 Vanimo. Of those cases where the victim was 12 years of age and under, the sentences of imprisonment imposed were 20, 17, 9 and 8 years. In the latter 2 cases the victims were 10 and 12 years of age and the offenders were 18 and 21 years of age. In 5 cases where the victims were between 13 and 15 years of age, sentences of imprisonment imposed were 20, 17, 15, 12 and 10 years.

28.	There have been many cases since then. Whilst sentences continue to vary, they also show in general terms an increasing trend in severity. I note the following which are not intended to be exhaustive: 

a)	The State v John Ritsi Kutetoa (2005) N2814, Cannings J in which a 37-year-old man who pleaded guilty to sexually penetrating his 10-year-old stepdaughter was sentenced to 17 years imprisonment;
b)	State v Koi, CR No.1204 of 2013, Unnumbered & Unreported Judgment delivered at Mt. Hagen on 15 September 2015, David J: the offender pleaded guilty to one count of engaging in an act of sexual penetration in circumstances of aggravation with a child under the age of 16 years who was then under the age of 12 years, a 10-year old girl through her vagina with his penis. The complainant was walking home alone after visiting her sick father at a lodge at Newtown, Mt. Hagen when the offender followed her. At a secluded place, the offender grabbed the complainant and physically assaulted her. He tied her legs and hands and dragged her into the nearby bush and into a raun haus where he committed the offence. The complainant was confined for a night and managed to escape the next morning. The complainant suffered physical injuries including, facial injuries that resulted in swelling, abrasions over the back, a torn hymen and tear to the labia. A sentence of 17 years imprisonment was imposed;
c)	State v Gumanawabu (2015) N6842, Injia CJ: the 20 offender pleaded guilty to sexually penetrating an 11 year old girl known to him contrary to s 229A(1)(2) Criminal Code for which maximum is life. He took her into the bush and asked her to have sex. She agreed and asked for K27 which he gave her. She cried when he tried to insert his penis so he with withdrew it. She returned the money to him and went home. He was sentenced to 15 years.
d)	State v Gurang (No 2) (2021) N9137, Geita J: the offender was convicted following trial of sexually penetrating a 15 year old girl working in her garden at about 3 pm, threatening her with a bush knife, contrary to s 229A(1) for which the maximum was 25 years. He was sentenced to 15 years; 
e)	State v Bobby (2022) N9557, Salika CJ: 39 year old offender pleaded guilty to sexual penetration of his 13 year old step-daughter, contrary to s 229A(1), for which the maximum is 25 years. He was sentenced to 15 years;
f)	State v Clement (No 2) (2022) N10351, Polume-Kiele J: the 25 year old offender, was convicted following trial of sexually penetrating his 5 year old step-daughter by inserting his penis into her vagina, at Wau, Morobe Province, contrary to s 229A(1)(2)(3), and sentenced to 20 years IHL;
g)	State v Noelo (2023) N10631, Toliken J: the 35 year old offender pleaded guilty to sexually penetrating his 15 year old step daughter contrary to s 229A(1)(3), Criminal Code. He was sentenced to 15 years of imprisonment, 5 of which was suspended on strict conditions including the transfer of 2 hectares of land to the victim;
h)	State v Timothy (2023) N10155, Geita J: the offenders, 21 and 22 years of age, were found guilty following trial of s 229A(1)(2) after abducting an 11 year old child whilst returning from her grandmother’s house in Koroji Village, Manus Province around 8 am. They carried her into the bush, blindfolded her and raped her in turn before threatening her with a bush knife not to tell anyone about the ordeal or be harmed. Both were sentenced to 20 years IHL;
i)	State v Babia (No 2) (2023) N10571, Miviri J: the 24 year old offender was sentenced to 20 years on conviction following trial for the anal penetration of his 6 year old nephew contrary to s 229A(1)(2)(3), Criminal Code, causing some injury;
j)	State v Fego (2024) N10663, Miviri J: The 37 year old offender pleaded guilty to four offences against four different children who lived in the same area during a four week period between 1 February and 1 April 2021. On Count 1 the persistent sexual abuse of a child aged 10 contrary to s 229D(1)(6) for which maximum is life. On the first occasion the offender sexually penetrated the child by inserting his penis into her vagina. On the second occasion he led the child into his house, took her into his room, took out his penis and told her to suck it and pushed it into her mouth when she refused. On another date he led her into his room removed her pants and touched her vagina with his penis. On Count 2 the sexual penetration of a child under the age of 12, namely 8 years old, contrary to s 229A(1)(2) for which maximum was life.  The child was in his house with her friends and watched a movie on his phone, whilst watching he inserted his finger into Lucy’s vagina. Then he removed his hand and switched off the phone and asked them to leave. On Count 3, the sexual touching of the vagina of a 6 year old child, contrary to s 229B(1)(4) for which maximum was 12 years. He took the child with her friends to the top of hill where the containers were. He led her away with another child and put his hand in her pants and touched her vagina. On Count 4 the commission of an indecent act directed at an 8 year old child by showing his penis contrary to s 229C(1)(2) for which the maximum was 7 years.  He took a different child and others up the hill to the containers he stood at her back pulled down his pants while his shirt was on and showed his penis to her. He was sentenced to 15 years, 19 years, 5 years, and 5 years, respectively, to be served cumulatively, 44 years, but reduced to 30 years having regard to totality; 
k)	State v Erick (2024) N10882, Kangwia J: the offender pleaded guilty to the sexual penetration of his 13 year old daughter contrary to s 229A(1)(3) for which the maximum is life. He was sentenced to 20 years IHL;
l)	State v Guise (No 2) (2024) N10957, Miviri J, the offender, a 48 year old relative, without formal education or any history of employment, was found guilty of sexual penetrating a 10 year old girl, contrary to s 229A(1)(2) after trial. He overheard the child tell her mother that she was going to the toilet as she walked home from Independence Celebrations with her family on a publicly frequented road in Dei Council, Western Highlands Province at about 3 pm. The offender followed her and dragged her into his coffee garden, gave her K1 before removing her clothes before inserting his penis into her vagina, covering her mouth when she cried out in pain, and causing lacerations and bleeding, before telling her to go to back to her house. He was sentenced to 25 years of imprisonment IHL.

29.	Whilst all of the National Court cases referred to are generally relevant, the cases of Lumou, Koi, Gumanawaba, Timothy, Gurang, Mea and Guise bear particular similarities to the present case, to greater or lesser extents, noting however, the nature of the plea and maximum applying in this case, together with the matters which make this case more serious, namely the sophistication of the offender, the degree of planning, the fact that SR and VP were each detained for a prolonged period before the sexual penetration took place and then for some time afterwards before they were released, the repeated nature of the act in VP’s case, and the medical treatment required in each case. 

30.	In rendering this decision I have also had regard to the considerations outlined in The State v Biason Benson Samson (2005) N2799 which the Supreme Court said in Sabiu may be useful when determining a sentence for sexual penetration of a child. As the Supreme Court was at pains to emphasise, however, it is for the trial judge to determine the sentence to be imposed having regard to all the circumstances of the case: [12].

31.	In this regard I do not intend to apply the considerations in Sabiu as a checklist. The language of the first eight items ([11a) to h)) has a tendency to focus on whether the offence might have been more serious and to suggest that the absence of the factor is a matter in mitigation. The presence or otherwise of the matters referred to may be relevant when comparing sentences but as the Supreme Court said in Palam at [29], “the fact that the applicant did not use a weapon nor inflict physical injuries beyond those recorded in the medical report nor infect the complainant with some sexually transmitted disease nor cause her to fall pregnant are not matters warranting mitigation on sentence. They are simply not matters in aggravation. To be clear whilst the presence or otherwise of such factors may be relevant when considering comparable cases they cannot properly be regarded as factors in mitigation”.

32.	With respect to the factor of “consent” referred to in Sabiu, it must be observed that “consent” means free and voluntary agreement: s 347A, Criminal Code.  Section 347(A)(2), Criminal Code provides that circumstances in which a person does not consent to an act include, where they submit because of fear, threats of violence or intimidation, because they are unlawfully detained, or incapable of understanding the essential nature of the act, or where they are induced by an abuse of trust, power or authority, amongst others. Section 229A, Criminal Code is not a less serious offence than rape because the prosecution is not required to prove an absence of consent. As the matters in s 347A(2) and (3) make clear to consider whether the conduct took part with the “consent” of the child will except in a few rare cases be meaningless. In my respectful view such considerations should be confined to those few cases and it is generally preferable to consider the particular circumstances in which the conduct took place when considering the objective seriousness of the offence.  

33.	To be clear, however, there was no consent in this case by either SR or VP and no such submission was made by counsel. To suggest that a child of 10 years could freely and voluntarily agree to sexual penetration by a 37 year old man in any case but particularly in circumstances where they were abducted, detained and forcefully penetrated whilst in clear distress would be a nonsense. 

34.	Whilst guidelines and comparative cases are important considerations every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.  

35.	Returning to the present case, the offences against each of the victims considered separately are seriously aggravated by the following factors, placing them at the upper end of the spectrum for sentencing. 

36.	The abductions and sexual penetrations of SR and VP were conducted by a sophisticated and mature aged man of 37 years. The victims were very young at 10 years of age.  The offences were carefully planned. The abductions were calculated to remove and detain the girls in circumstances which rendered them entirely defenceless for an extended period of time. The offender sought the young girls out near a school at a time when students would likely be making their way home. He used his vehicle to track them. He persuaded each of them into his vehicle by pretending to know their parents, promises of food or other gifts and to take them home. 

37.	Once in the vehicle, SR was taken far away and detained for several hours, including after being sexually penetrated, in what became an increasingly frightening ordeal until she was eventually released at the side of a busy road late in the afternoon. The sexual penetration of SR was itself violent regardless of the fact it was not accompanied by weapons or other physical violence. The act of penetration was forceful, and the offender showed callous disregard for the victim’s obvious pain and distress.  

38.	The offender’s conduct escalated with the offences against VP. The offender detained VP for several hours in increasingly harrowing circumstances.  The sexual penetration was violent. Following the first penetration the offender indulged in some bizarre fantasy of his own by showing the victim a block of land at Korobosea where he told her they would marry and live, which he must have appreciated could only have added to her incomprehension, fear and despair. Then he took her to another location, where he sexually penetrated her again, causing excruciating pain and other indignity.   

39.	The physical, emotional and psychological impact of the offences on each of SR and VP has been especially serious. 

40.	Both SR and VP suffered injury to their reproductive organs requiring urgent surgery and hospitalisation for several days. 

41.	I have read the victim impact statements and emotionally and psychologically the offences have been lifechanging. 

42.	SR is no longer the outgoing child who plays with her friends. She feels very isolated. She is generally fearful, including even at school, except when with one of her parents. This has restricted her ability to engage in and enjoy the normal social activities of a child. She is constantly reminded of what happened, fearful of what others think, and overwhelmed by feelings of shame as well as rage and disgust at the offender. Her father is heartbroken for his daughter and has become overprotective of her and his other children. 

43.	VP loved her life as a child. She was carefree and confident. Now she thinks about what happened all the time and desperately wishes she could turn back time so that somehow she could have avoided what happened. She is always on alert, conscious of who is looking at her and fearful that the same thing could happen again. She fears all males, including her uncles and cousins.  She does not think she will ever feel safe. She feels very different from other children and very isolated. She is acutely aware of the impact of the offences on her family and feels guilty about that too. They cry when they see her pain because they were not able to protect her.  She does not want any other little girl to go through what she has been through because it is just so hard. 

44.	The abduction of EK was seriously aggravated by a number of features.  The offender was by then on bail for the earlier offences against SR and VP, a factor of itself which is seriously aggravating. The conduct demonstrated his very strong intention to take away the victim with intent to carnally know her. The offence was carefully planned. The offender deliberately removed a distinctive sticker from his vehicle and set out to another part of town from that where he had first taken SR and VP in a clear attempt to avoid detection. Again, he used his vehicle to track the victim. Again, he ingratiated himself by asking her to buy him a tok card and overcoming her resistance by promising her food. Once in the vehicle he detained her for some time. He refused her repeated demands for him to stop the vehicle and let her off. The abduction was frightening. The offence was violent, the offender punched EK’s face and told her he was going to kill her. The offence only stopped because EK took drastic measures to escape.  

45.	The impact on EK and her family has been great. Her parents made the difficult decision to move her out of the family home to live with her brother for security reasons. Even there, however, she barricades herself inside the house, armed with a knife when home alone, afraid that the offender will return at any moment. Even now, aged 18, her family does not let her out alone or take the bus. Someone is always with her. 

46.	There are no extenuating circumstances relevant to any of the offences, that is “no particular circumstance in which the offence[s] [were] committed that has the effect of reducing or diminishing the gravity of” them, or would diminish the culpability of the offender: see Regina v Peter Ivoro [1971-72] PNGLR 374; Ume v The State (2006) SC836.  

47.	There is little in mitigation. 

48.	Mr Kissi is from Badet Village, Rai Coast Madang Province. He is 43 years old and married with two children, a 10 year old girl and a 7 year old boy.  He is highly educated. He was admitted to law in 2009 and worked in a number of public offices in that capacity including the Solicitor General’s Office, the Public Curator’s Office, and IDLO before moving to private practice.  He was a private practitioner at the time of his arrest.

49.	The offender has no prior convictions. To that extent he must be regarded as being of good character but, of course, having no prior convictions and being of such good character that it should count in mitigation are two different things. Moreover, the more serious the offence the less weight should normally be attributed to this factor and, as has been long recognised, prior good character is of little weight in the context of sexual offences: Aubuku. In my view that is particularly so in cases involving sexual violence against children.  

50.	The offender cannot be regarded as either youthful or unsophisticated. Mr Kissi is an intelligent, highly educated and sophisticated offender. He was a practising lawyer and there is no doubt that he understood the gravity of his conduct in each case.

51.	The offender did not cooperate with authorities in any way that demonstrated his genuine remorse or a willingness to assist authorities in their investigations and facilitate the course of justice: Wera v State (2023) SC2367 at [16] and [17];  State v Richard Namaliu (2020) N8506 at [52] to [53].

52.	The case was a contested one; the offender pleaded not guilty. He was entitled to do that and I am unable to accept the State’s submission that the fact the victims were required to relive their trauma by giving evidence is a factor in aggravation. As regrettable as that is it would be an error of principle to find that in aggravation against the offender.  

53.	That is not to say that the fact he pleaded not guilty is not a significant factor on sentence. Firstly, he is not entitled to any reduction in sentence which would normally result if he had pleaded guilty and spared the victims the trauma of a trial. These principles are well established but see Meaoa v The State [1996] PNGLR 280, amongst others. Secondly, it is relevant when considering the extent of his remorse, if any. Thirdly, it is relevant when considering Supreme Court authorities and other comparative cases, outlined above, many of which concern guilty pleas. 

54.	In my view there is a complete absence of genuine remorse on the part of the offender.

55.	The offender made a lengthy statement on allocutus. He said that he respected the Court process and having been found guilty wished to sincerely apologise to the victims and their families for the inconvenience, shame and disgrace he may have caused. He apologised to the Court, the legal profession, his colleagues, church group, lawyers, family, and to God. He outlined five grounds for leniency being his medical condition, his lack of prior conviction, his young family, the delay, time spent in custody and his prospects for rehabilitation, exhibited whilst in Bomana.

56.	He has failed to demonstrate in any meaningful way any true contrition for his conduct, any proper acknowledgement of his wrong doing or any real appreciation of its impact on his victims or their families.  His brief apology to the victims and their families in an otherwise lengthy statement on allocutus following a fully contested trial during which he accused them and their families of conspiring against him rings hollow.  

57.	In this regard it is very common for victims of sexual violence to experience feelings of shame. The long term impact of sexual violence is complex and I do not wish to minimise those feelings in any way. To be clear, however, neither the victims nor their families having anything to be ashamed of. The only person in this court room who should feel any shame and disgrace is Mr Kissi.  

58.	The offences took place in late 2018. There was some delay occasioned since his charging in late 2018 and his committal to the National Court in December 2022 for reasons that are not clear. His trial commenced in late 2023 following a humans rights application to be brought to trial. The trial itself involved numerous witnesses and some novel legal issues. I note the principles applying. I do not regard the delay as of particular significance. Moreover, delay must be balanced against all the other factors for consideration, including the nature and seriousness of the offence: The State v Benedict Simanjon (2020) N8637 at [40]; State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252 at [58]; The State v James Paru (No 3) (2021) N9248 at [37]. 

59.	I note the letter in support by Inspector Nelly Gairi, Acting Chaplain & Spiritual Coordinator, which suggests that Mr Kissi has demonstrated progress towards rehabilitation by taking a leadership role in the Seventh Day Adventist Group at Bomana and changing his behaviours and attitudes. Those behaviours and attitudes are not explained and it is hardly surprising that a mature lawyer would take on a leadership role whilst in custody.  It is commendable but I do not regard it as of significant weight either of itself given the gravity of the offending nor in the particular circumstances of the offender such that it demonstrates any real progress towards rehabilitation. 

60.	The offender is suffering from a number of serious health issues. He was diagnosed in March 2024 with liver cirrhosis, hyperactive splenomegaly syndrome, gall bladder polyps, benign prostatic hyperplasia and hepatitis B. He is being treated on a regular basis under the supervision of Dr Albert Anthony, Physician, Port Moresby General Hospital. He was admitted to hospital for a number of months in 2024 and requires daily antiretroviral therapy, regular checkups and dietary support to maintain his health and avoid serious medical complications. Whilst treatment of his disease would ideally take place outside of prison, it appears that he is receiving regular care including medication and review whilst in custody. His health must also be balanced against the seriousness of his offending and the purposes of sentencing. 

61.	Finally, whilst I acknowledge that the sentence imposed will cause great hardship to the offender’s family, it is well established that except in very extreme circumstances, it is not ordinarily a relevant consideration on sentence:  Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.

Sentence

62.	Having regard to the above matters, I sentence the offender on Counts 1 and 3 to 4 years and 22 years of imprisonment, respectively, for the abduction and sexual penetration of SR.  

63.	I remind myself of the approach to be taken when deciding whether sentences should be made concurrent or cumulative, and the principles of totality: Mase v The State [1991] PNGLR 88 at 92:

“It is clearly laid down by this Court in the cases referred to that there are three stages to go through in coming to a total sentence. The first step is to consider the appropriate sentence for each offence charged and then consideration be given as to whether they should be concurrent sentences or cumulative sentences. Where the decision is made to make two or more sentences cumulative, the sentencer is then required to look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total. This principle must be observed because a straightforward addition of sentences usually leads to a total sentence that is excessive in the whole of the circumstances.”

64.	There is no “all-embracing” rule as to when sentences for two or more convictions should be made concurrent.  Generally, sentences should be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts: Tremellan v The Queen [1973] PNGLR 116. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative: Public Prosecutor v Kerua [1985] PNGLR 85.  

65.	The sentences for the offences against SR shall be served concurrently with each other. 

66.	On Counts 4, 6 and 7, the abduction and two counts of sexual penetration of VP the offender is sentenced to 5 years, 22 years and 24 years of imprisonment, respectively. The sentences on those counts shall be served concurrently with each other. 

67.	On Count 8, the abduction of EK the offender shall be sentenced to 6 years of imprisonment.   

68.	It must be recognised that whilst committed as part of a single purpose, namely the sexual abuse of young girls, the offences against SR, VP and EK, concerned different victims, at different times. The abduction and sexual penetration of VP showed marked escalation. EK’s abduction was violent and committed whilst on bail. As a general rule, a sentence of imprisonment should be made cumulative if the offence was committed whilst on bail: see for instance R v Young [1973] Crim LR 585. On those bases cumulation is warranted subject to the principle of totality. A wholly concurrent sentence in those circumstances would fail to recognise the overall criminality of the offending. 

69.	Moreover, not only were the offences against each of the victims extremely serious but the offences were committed as part of a campaign against young girls by a determined sexual predator. The pattern of behaviour, the number of offences, the period over which they were conducted, and the relentless nature with which he pursued his campaign even after being arrested and charged establishes that he represents more than an ordinary danger to the community, in particular, young girls such that an extended sentence is warranted: Aubuku v The State [1987] PNGLR 267 applied.

70.	Whilst the tariffs in Aubuku have long been outdated (see for instance Waim v The State [1997] SC519), and the following comments were made in the context of rape and before the enactment of s 229A, Criminal Code, they remain applicable, and particularly so when considering the protection of children (emphasis mine): 

“At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime upon a number of different women or girls. He represents a more than ordinary danger and a sentence of 15 years or more may be appropriate.

Where the defendant’s behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate.”

71.	I have no doubt that the offender is likely to remain a danger to young girls. This is ameliorated to some extent by his health. As the cases show, age of itself is not a barrier to offences of this nature. 

72.	The Supreme and National Courts have repeatedly made clear that sexual offences against children are abhorrent and must be severely punished. The offences remain prevalent. 

73.	The sentence in this case must mark the gravity of the offending, adequately punish the offender for it, unequivocally denounce such crimes in accordance with the community’s expectations and effectively protect children by deterring others from committing similar offences in the future. This case also calls for strong personal deterrence and protection of the community from the particular individual concerned. 

74.	Full cumulation would result in a sentence of 52 years of imprisonment. Sentencing a 42 year old man to 52 years would effectively constitute a life sentence. Perhaps that would be just given the impact his conduct will have on his victims for the rest of their lives. That would, however, be inconsistent with current sentencing practice.

75.	In all the circumstances I impose an effective sentence of 32 years of imprisonment. 

76.	I do not regard this to be a quantum leap from past sentences.  As appears from the authorities, whilst there are regrettably many cases of sexual violence against children, this one is somewhat unique in the totality of its circumstances. I make it clear, however, that these offences are not more serious because they were committed by a stranger. As the legislation and case law has repeatedly recognised, sexual violence against a child in a position of trust, authority or dependence is a grotesque abuse of trust which alone seriously aggravates the offending.    

77.	The sentence imposed in this case reflects the particular combination of circumstances present at each of the offences together with the fact that they were committed as part of a concerted campaign by a sophisticated and determined sexual predator and the particular danger this offender represents to the community, in particular young girls.    

78.	I exercise my discretion to deduct time spent in custody to date since 25 October 2018.  Having regard to the offender’s medical condition he shall serve the sentence without hard labour: s 18(c), Criminal Code.

79.	Having regard to the nature and gravity of the offence this is not a case warranting suspension for the reasons outlined above: The State v Tardrew [1986] PNGLR 91 applied. 

80.	I make the following orders:

Orders
a)	On Counts 1 and 3, the abduction and sexual penetration of SR, the offender is sentenced to 4 years and 22 years of imprisonment, respectively, to be served concurrently with each other;
b)	On Counts 4, 6 and 7, the abduction and two counts of sexual penetration of VP, the offender is sentenced to 5 years, 22 years and 24 years of imprisonment, respectively, to be served concurrently with each other;
c)	On Count 8, the abduction of EK, the offender is sentenced to 6 years of imprisonment;
d)	Ten years of the concurrent sentence imposed on Counts 4, 6 and 7 shall be served cumulatively with the sentences on Counts 1 and 3;
e)	The sentence imposed on Count 8 shall be served concurrently with the other sentences imposed;
f)	The offender shall serve an effective sentence of 32 years of imprisonment; 
g)	Time spent in custody, 6 years, 4 months, 3 days is deducted from time to be served;
h)	The balance shall be served in custody, without hard labour.

Sentence accordingly

_______________________________________________________________
Lawyer for the State	:	Public Prosecutor
Lawyer for the offender	: 	Public Solicitor