N6440
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1059 OF 2015

THE STATE

V

A B
(JUVENILE)

Alotau:  Toliken, J.
2016:   9th &10th February

CRIMINAL LAW – Sentence – Rape – Plea - Juvenile offender – Offender and accomplice hold victim up and rape her – Mitigating factors – Early guilty plea – First time offender – Slight de factor provocation – No infection with STI – No pregnancy – Expression of remorse – Payment of customary compensation – Aggravating factors – Company of another – Prevalent offence – Criminal Code Ch. 262, ss 347(1)(2), s 349A.

CRIMINAL LAW – Sentence – Juvenile - Guiding principles and principles of sentencing under Juvenile Justice Act 2014 discussed – Interest and welfare of Juvenile – Paramount – Sentencing – Objects of –  Need for individualised treatment – Juvenile  to appreciate consequences of offending – Need for acknowledgement of wrong-doing – Need for reintegration into community – Appropriate sentence – Deferred sentence – Probation with additional conditions – Juvenile Justice Act 2014, ss 6, 20, 75, 76, 77, 78, 79, 80, 81, 85. 

Cases Cited:
Avia Aihi v The State (No.3) [1982] PNGLR 92
Golu v The State [1979] PNGLR 653

Counsel:
H. Roalakona, for the State
C. Kambua, for the Prisoner

                                                   SENTENCE

10th February, 2016

1.	TOLIKEN, J:	    AB, yesterday you pleaded guilty to one count of rape with a circumstance of aggravation contrary to Section 347(1) (2) of the Criminal Code Act, Chapter 262.

2.	You were charged that:-

“...On the 15th day of March 2015 at O’oya village, Milne Bay
 Province ... [you] sexually penetrated one PAULA SIMEN by inserting
your penis into her vagina without her consent.

AND at that time, [you were] in the company of another person”.

FACTS

3.	The brief supporting facts upon which I am going to sentence you are this.  On Sunday 15 March 2015, you were with Robert Timothy, when the two of you met the complainant who was on her way to her house.  Robert Timothy held the complainant by her hand and removed her skirt and tights.  You then went on top of the complainant, spread her legs apart and sexually penetrated her by inserting your penis into her vagina without her consent.  After you sexually penetrated her, you left her with Robert Timothy.

THE OFFENCE

4.	Rape simpliciter carries a maximum penalty of 15 years.  However, where the act is accompanied by circumstances of aggravation, the maximum penalty is life imprisonment, (Section 347 (2)), subject to the Court’s discretion under Section 19 of the Code to impose a lesser sentence.

5.	Circumstances of aggravation are defined by Section 349A of the Code.  They include, among others, a situation where the accused was in the company of another person or persons as in your case.

6.	As a juvenile, according to the Juvenile Justice Act of 2014, you are to be sentenced or treated differently from adult offenders.  In sentencing you, I am pretty much guided by the principles and objectives of the Juvenile Justice Act, to ensure that your interest as a juvenile, which are of paramount consideration, are fully recognized and protected. 

ISSUES

7.	That being said, the issue for me then is; what should be an appropriate sentence for you?

8.	As we have seen, the maximum penalty for your type of offence is life imprisonment.  It is, however, trite law that the maximum penalty is always reserved for the worst instance of a particular case.  Furthermore, each offence must be treated on its own merits (Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92.  These time-honoured principles apply equally to both adult and juvenile offenders except that the latter are further protected by the provisions of the Juvenile Justice Act. 
 
SENTENCING JUVENILES: THE GUIDING PRINCIPLES

9.	At this point, let me say at the outset that your case cannot be considered as falling under the worst category of this type of rape.  It must be noted, however, that as a juvenile, Section 85 of Juvenile Justice Act prohibits the imposition of life imprisonment on you.  Nonetheless, I must now determine a sentence that is not only appropriate to the circumstances of your case, but one that will also serve to further your special interest as a juvenile.  

10.	Section 20 (3) of the Juvenile Justice Act provides that as far as is practicable, the National Court shall sit and conduct its proceedings in accordance with that Act.

11.	Section 6 of the Juvenile Justice Act provides for the general principles that must guide a court or persons exercising jurisdiction or power over a juvenile.  Among other things, special considerations apply in respect of proceedings against juveniles because of their youth and vulnerability, and therefore, they must be treated separately from adults. They are entitled to enhanced protections to ensure that they are treated fairly and that their rights are respected. The best interests of the juvenile are the primary or paramount consideration. Juveniles must be held accountable for their actions, but emphasis should be rehabilitation and reintegration, while acknowledging the juveniles’ lack of maturity and their limited capacity to appreciate the consequences of their actions. They must be dealt with in an individualized manner and there must be proportionality between the circumstances of the juvenile, the nature of the offence and the interest of society. And within the limits of proportional accountability, measures to be taken against a juvenile must ones that reinforce respect for societal values, encourage restorative justice for harm done to victims and to the community.  Where appropriate, parents, the juvenile’s family, the community and other agencies must be involved in rehabilitating and reintegrating a juvenile. (Section 6(a) (b) (j) (k) (l)).

12.	The Juvenile Justice Act (PART VII:  SENTENCING OF JUVENILE OFFENDERS), provides for the powers, purpose and factors to be taken into consideration when sentencing juvenile offenders against the general principles under Section 6 of the Act.

13.	Section 75 of the Act provides in mandatory terms that juvenile offenders shall be sentenced according to Part VII of the Act.  Section 75 provides:-
	
	“75.	JUVENILES TO BE SENTENCED IN TERMS OF THIS PART

(1)	Notwithstanding any other Act or law, if a Court is satisfied that
an offence has been proven against a juvenile, or if the juvenile
pleads guilty to the offence, the Court shall impose sentence on
	        the juvenile in accordance with this Part.

(2)	A Court that sentences a juvenile for an offence shall disregard
a requirement under any other Act or law that an amount of money
or term of imprisonment shall be the minimum penalty for the offence”.

14.	This provision cannot be any clearer – juveniles, because of their special status, will be treated entirely differently from adult offenders.  Minimum penalties have no application when it comes to sentencing juveniles.  To that end, a sentencing court is also not strictly bound by precedents (Section 77 (2)). 

 15.	Section 76 provides for the purpose and principles of sentencing juvenile offenders in the following terms:-

	“76.	PURPOSE AND PRINCIPLES OF SENTENCING
	
(1)	The purposes of sentencing juvenile are to -

(a)	Encourage the juvenile to understand the consequences of and be accountable for the harm caused by his or her actions; and
(b)	Promote an individual response which is appropriate to the juvenile’s circumstances and proportionate to the circumstances surrounding the offence; and
(c)	Promote the rehabilitation and reintegration of the juvenile into the family and community; and
(d)	Ensure protection of the public.

(2)	A Court that imposes a sentence on a juvenile shall determine the sentence in accordance with the principles set out in Section 6 and the following principles:
(a)	The sentence shall be proportionate to the seriousness of the offence and the degree of responsibility of the juvenile for that offence; and
(b)	the sentence shall –
(i)	be the least restrictive sentence that is capable of achieving the purposes set out in Subsection (1); and

(ii)	be the one that is most likely to rehabilitate the juvenile and reintegrate him o her into society; and

(iii)	promote a sense of responsibility in the juvenile, and an acknowledgement of the harm done to the victim and the community; and

(c)	the sentence shall have regard to the juvenile’s age and limited capacity to appreciate the consequences of his or her actions; and

(d)	the sentence shall and result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; and

(e)	if appropriate, juveniles shall be permitted to remain in the community; and

(f)	deprivation of liberty shall be used only as a measure of last resort, for the shortest period necessary to achieve the purposes set out in Subsection(1).

(g)	Section 77 provides for the factors which sentencing a juvenile.  These include:-

(a)	The seriousness of the offence and the circumstances in which it was committed.

(b)	The juvenile’s degree of participation in the commission of the offence.

(c)	The harm done to the victim and whether it was intentional or reasonably foreseeable.

(d)	The age, maturity, education, health character and attitude of the juvenile.

(e)	The juvenile criminal history (if any) and his response to previous orders in respect of past offences.

(f)	The availability of community services and facilities to assist the juvenile and his willingness to avail himself to such services and facilities.

(g)	Any proposal offered by the juvenile or his parents for the future improvement of the juvenile.

(h)	The views of a Juvenile Officer or other persons who are involved in the education or custody of the juvenile.

(i)	Information contained in a Pre-Sentence Report.

(j)	Any time spent in custody while awaiting trial.

16.	And as I have noted above, the court is not bound by precedents.

17.	The Juvenile Justice Act also provides that a court may before imposing sentence, refer a juvenile offender to a Community Based Conference (established under Part III – of the Juvenile Justice Act) for the purpose of making recommendations to the court on an appropriate sentence (Section 78).

 18.	It is also mandatory that a written pre-sentence report be filed before a court imposes sentence (Section 79).

19.	Section 80 of the Act provides for what appears to me to be an exhaustive list of sentencing options.  These include:-

(a)	   An Order discharging the juvenile without further action.
(b)	Good behaviour not exceeding 12 months.
(c)	Reprimand.
(d)	Counselling.
(e)	Supervision and guidance order not exceeding 12 months by a specified adult or mentor.
(f)	Attendance of a non residential vocational training or rehabilitation  programme.
(g)	Order for restitution.
(h)	Compensation by way of personal service to the victim.

(i)	Restitution in kind for loss, damage or injury suffered by victim not            exceeding K5,000.00.
(j)	Community work.

(k)	Fine not exceeding K500.00.

(l)	Probation not exceeding 3 years.

(m)	Commitments to a juvenile institution chosen by the Director of Juvenile Justice Service.

(n)	Term of imprisonment at the juvenile section of a Corrective Institution for period not exceeding 6 years if order is made by a Juvenile Court or a court of summary jurisdiction and where order is by National Court for a period prescribed for an adult offender in similar circumstances.

(o)	Defer passing sentence for a specific period and subject to conditions.

20.	And in sentencing a juvenile, a Court is obligated to ensure that he understands the purpose and effect or the consequences if he breaches the Order (Section 80 (5)).

21.	Section 81 restricts the use of Custodial Sentences.  It provides that imprisonment may be imposed only if the Court has considered all the alternatives under the Act (Section 80) and determines that there is no reasonable alternative or a combination therefore is available to it.

22.	Furthermore, a juvenile shall not be sentenced to a term of imprisonment unless he is 14 years of age or older and has committed an indictable offence (Section 81(2)).

23.	I have gone into some detail on the general guiding principles set out in Section 6 of the Act, the purpose and principles of sentencing, and the court’s sentencing powers and options  (Sections 75, 76, 77, 80, 81 of the Act) because I feel that it is important that you be accorded the protection that the Act provides.  So let me now get back to your case.

PERSONAL PARTICULARS

24.	You are 13 years old and come from Nuwamanala Hamlet, O’Oya village on Ferguson Island.   You are a member of the Catholic Church.  You come from a family of 6 siblings of which you are the eldest.  Both your parents are still living.  This is your first offence and you have been in juvenile remand for about 10 months.

ALLOCUTUS

25.	Yesterday, you had the opportunity to address the Court on sentence.  In your written statement which was read to the Court, you confessed to God, the State, the community and the victim for your offence.  You said that on the date in question, the victim was on her way to her village when you and your accomplice (one Robert) met her.  You said you told Robert to let her go.  He did not listen to you and instead took the victim some 10 metres into the bushes.  He then called out to you and when you went over, you saw the victim lying naked on the ground face up.  Robert told you to have sex with her and you did.  When you finished, you left for your village and did not know what happened after that.  You said it was not your idea to have sex with the victim. You apologised to the Court, the State, the community and the victim and her family for your offence.  You said you are very, very sorry.  

26.	You pleaded for mercy and pardon saying that you are the fourth born in your family and your parents rely heavily on your support. You asked the Court if you could be discharged on probation so that you could go and reconcile with your relatives and the victim’s relatives and pay compensation to the victim. Finally you said that you relatives had made peace on the 18th June 2015.

SUBMISSIONS

27.	I also heard from your lawyer, Ms. Kambua and Ms. Roalakona for the State. Ms. Kambua submitted that an appropriate sentence for you should be 5 years which should be then suspended on condition that you enter into a period of probation of 2 years.

28.	Counsel submitted that the victim had disrespected you and your friend when she brushed sand off her skirt that got into your eyes, prompting your friend Robert to plan to hold her up.  Counsel said you had no intention of raping the victim but merely did so when prompted by Robert.  She said that no weapons or threats of violence were used nor was the victim injured, impregnated or infected with an STI.  Counsel readily conceded, though, that you were in company of another person and that the offence is very prevalent.  However, the fact that you pleaded guilty early, are a first time youthful offender, are remorseful, and because of some de-facto provocation, and that reconciliation has taken place between your relatives and the victim’s relatives, you ought to be sentenced to 5 years which then should be suspended.

29.	Ms. Kambua cited several cases which she said should guide the Court in arriving at an appropriate sentence for you.  I am, however, not bound by those cases as we have seen.

30.	Ms. Roalakona submitted that your offence is a very serious one.  She, however, points the Court to Section 76(2) of the Juvenile Justice Act which as we have seen provides that deprivation of liberty should be the last resort when sentencing a juvenile like you.  Counsel conceded that the victim did not contract an STI but your offence was intentional, hence, she agreed that an appropriate sentence for you should be 5 years as suggested by your lawyer, Ms. Kambua.  That sentence can then be fully suspended and that you should then be placed on probation with strict conditions.

31.	A Pre-Sentence Report was filed in your behalf. The report is favourable to you, recommending a period of probation of 3 years.  It further recommends that you should pay customary compensation to the victim as an additional condition of your probation order.  The compensation should comprise of:-

1.	1 x live pig valued at K500.00.
2.	4 x baskets of yam at K60.00 each.

That is a total cash value of K740.00

MITIGATING AND AGGRAVATING FACTORS

32.	Let me now turn to the mitigating and aggravating features of your offence.
First, the mitigating factors:-

1.	You pleaded guilty early to your offence, thus, saving time and money for the State and also saving the victim from the trauma of having to relive her ordeal had there been a trial.

2.	You are a first time offender.

3.	You also co-operated very early with the police, readily admitting your offence during the record of interview.

4.	You are remorseful of your offence.

5.	Your people had made peace with the victim’s relatives and you have offered to reconcile with them and the victim and pay compensation.

6.	There was slight de-facto provocation but I find your reaction to be completely disproportionate to the insult you said you and your friend received from the victim.

7.	You did not infect the victim with an STI nor did you cause her any physical injury or make her pregnant.

8.	You were influenced by your adult accomplice.  

33.	Against you, though, are the following aggravating factors:-

1.	You were in the company of another person when you committed the offence.

2.	The offence of rape and other sexual offences are very prevalent in this province as well as around the country.

SENTENCING TREND

34.	As we have seen a sentencing court is not strictly bound by precedence.  The court’s sentencing powers are circumscribed by Part VII of the Juvenile Justice Act and guided by the general guiding principles under Section 6 of the Juvenile Justice Act.  I, therefore, do not wish to be bound by what has been imposed on other juveniles by my brothers, principally, because I am very much bound by the provisions of the Juvenile Justice Act and because I am obligated to impose a sentence on you that is appropriate to your own peculiar circumstances – individualized treatment. 

APPROPRIATE SENTENCE

35.	So, what then should be an appropriate sentence for you, and what should such a sentence seek to achieve?

36.	At this point, let me again reiterate that yours is not the worst instance of rape despite the aggravating circumstances pleaded in the indictment.  Even if it were, I am prevented by Section 85 of the Juvenile Justice Act from imposing life imprisonment on you.

37.	Further to that, you are only 13 years old and therefore I am further restrained by Section 81(2) of the Act from sending you to jail, even though that does not prevent me from committing you a juvenile institution chosen by the Director.

38.	Be that as it may, I must impose an appropriate sentence for you.  And thus your sentence should, pursuant to Section 76 of the Act, serve primarily firstly to hold you accountable for your action and understanding its consequences.

39.	You have committed a very serious offence in that you have violently invaded the privacy of the victim.  You deprived her of her dignity as a person or human being, but more so, as a young woman.  Our womenfolk in the villages, towns and cities deserve to be respected by us men.  They deserve to walk around freely without fear of being sexually attacked and preyed upon.

40.	You have a mother and sisters, and other female relatives whom you obviously would not want to be raped or abused by other men or boys.

41.	Your attack on the victim must therefore be condemned in the strongest terms, but the important thing for you to realize is that you have violated the victim.  Your action has had a ripple effect on the relationship between your own family and the victim’s.  While crimes are often perpetrated on individual victims, the consequences are often far reaching, more so in villages and communities where people are closely knitted.  So, you must realize and accept the fact that because of your thoughtless action, other people have also suffered.  And of course in our Melanesian societies, we must make amends and restore relationships that may have been damaged.

42.	I accept that you have expressed remorse for your thoughtless behaviour, while acknowledging that because of your youthfulness, you gave in to your friend Robert and raped the victim, behaving like a headless chicken by not taking time to consider the consequences of your action.   You were, however, brought back to the real world and jolted back to your juvenile senses when you got arrested for this offence.

43.	I hope and pray, then, that you have learned a lesson the hard way.  Your contact with the law hopefully will be a driving force for you to change your view on women and instil in you the need to respect their privacy and human dignity rather than subjecting them to all forms of abuse.

44.	In sentencing you, I must also take into account the need to protect the public and especially our women and girls from all sorts of violence and abuse.

45.	Having said that, though, you are a young boy who stepped out of line in a big way, who must be guided back to the straight road.  In other words, what is called for in your case is a sentence that will also help to rehabilitate you and reintegrated you into the community.

46.	I have a lot of options available to me under Section 80 of the Act, apart from imprisonment, which as we have seen is not an option open to me. I have the options of merely discharging you without anything further or reprimanding you or even just placing you on 12 months good behaviour bond.  These options are, however, not tenable because they will not serve to make you fully appreciate the nature of your offence, the consequences thereto and taking responsibility for it.

47.	In the circumstances, I feel, therefore, that the type of sentence that will best promote and serve your interest, as a young impressionable young man in need of direction, is probation with additional condition of compensation and reconciliation.

SENTENCE/ORDERS

48.	Therefore, pursuant to my powers under Section 80(1) (i) (e) (9) of the Juvenile Justice Act 2014, I make the following orders:-

1.	Your sentence is deferred on the condition that you will enter into a period of probation for 3 years with additional conditions that you will reconcile with the victim and her relatives and pay customary compensation of one live pig valued at K500.00, and four baskets of yam valued at K60.00 each, within 6 months from today.

2.	In the event that you breach a mandatory condition of your probation order or the above additional order, you will be arrested and sentenced accordingly.

Ordered accordingly.

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