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State v Palek [2018] PGNC 272; N7384 (24 July 2018)

N7384

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1122 OF 2016

THE STATE

V

KELLY PALEK

Kokopo: Susame, AJ
2018: 5, 6, 14, 21 June & 24 July

CRIMINAL LAW – particular offence – sexual penetration of a child under 16 years – s 229a (1) criminal code (offence and crime against children) act 2002- prisoner 18 years old- female child aged 14 – single act of sexual penetration of vagina by penis – act consensual –no pregnancy – no STI contracted – compensation paid & reconcilliation done

Cited Cases:
State v Anderson Angelie [2016] PGNC 398; N6717
State v August David [2008] PGNC 226; N3612
State v Jessie Chadrol [2011] PGNC 211; N4648
State v J.J (juvenile) [2012] PGNC 347; N4726
State v Joseph Pastin [2014] PGNC 81; N5623
Stanley Sabui v The State [ 2007] PGSC 24; SC866
State v Willie Dominic [2005] PGNC 35; N2938
The State v Chris Nawa (N0.2) [2009] PGNC 115; N3732
The State v Eddie Trosty [2004] PGNC 103; N2681
The State v Kola James [2011] PGNC 336: N4314
The State v Panka Harai [2016] PGNC 426; N6916
The State v Timothy Pindia [2017] PGNC 322; N6960 9
The State v Simam July Melly (N0.2) [2009] PGNC 138; N3779
The State v Wesley Penias [2014] PGNC 41; N 5659

Counsels:
Miss. Batil, for the State
Miss. Pulapula, for the Accused

DECISION ON SENTENCE

24 July, 2018

1. SUSAME, AJ: After trial you were convicted on 21 June 2018 for the offence under s.229A (1) of Criminal Code (Offences and Crimes Against Children) Act 2002. In that you sexually penetrated a 14 year old girl by introducing your penis into her vagina, a child under the age of 16 years. You are in court today to receive your sentence.

OFFENCE

2. The offence is provided in section 229A which reads:

“229A. SEXUAL PENETRATION OF A CHILD.

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding 25 years.”

FACTS.

3. Facts are found in the judgment on verdict delivered earlier. I will rely on those facts for the purposes of sentencing. The girl victim was no stranger to you. She was then 14 years old and was a grade 4 pupil at Tobera Primary School. You were living with your uncle’s family just next door to the girl and her parents who were living in a separate room but under the same company property. Being neighbours you both knew each other quite well. That particular night of 17 April 2016 the girl decided to stay up and was alone outside the verandah of the house while her mother was out visiting friends in the neigbourhood and her father and her other siblings were inside. You came saw the girl and you both decided to have sex. You both left the house walked some 30 to 40 metres from the house and had sexual intercourse inside a drain. When the girl returned to the house her parents questioned her where she had been. That was when the parents learnt she had gone out with you which led to your arrest.

ALLOCUTUS.

4. Before counsels addressed the court on sentence you were given an opportunity to speak in mitigation of your sentence. You said it was your first time in court. You were thinking of going back to school. You asked the court to have mercy on you and place you on good behaviour bond.

DECIDED CASES

5. Some useful data was obtained from the PNG Sentencing Data Base. For this particular offence under s 229A (1) a total of 79 cases were recorded for all age group from 24 August 1989 to 16 April 2018. The decisions were:
   • ➢ 3 cases were proven but discharged representing 3.8 %
   • ➢ 1 case was discharged on good behaviour bond representing 1.3 %
   • ➢ 15 cases had sentences fully suspended representing 19%
   • ➢ 25 cases had portion of sentence suspended with conditions representing 31.6 %
   • ➢ 35 cases full custodial sentence representing 44 %
6. For age group between 16 – 18 years 13 cases were recorded:
   • ➢ 5 had sentences fully suspended representing 38.5 %
   • ➢ 7 had portion of sentences suspended with conditions representing 53.8 %
   • ➢ 1 full sentence imposed representing 7.7 %
7. I realize that data base does not capture all judgments that were delivered. As such it requires updating. The figures recorded obviously are not reflective of hundreds of cases that have been decided and published. There are cases counsels have cited in their respective submissions which were never recorded on the Sentencing Data Base. These are;

The State v Kola James [2011] PGNC 336: N4314 (9 June 2011), Cannings J

The State v Eddie Trosty [2004] PGNC 103; N2681 (10 September 2004), Kandakasi J,

The State v Wesley Penias [2014] PGNC 41; N 5659 (13 March 2014), Batari J

The State v Simam July Melly (N0.2) [2009] PGNC 138; N3779 (22 July 2009), Makail J.

The State v Timothy Pindia [2017] PGNC 322; N6960 9 6 April 2017), Batari J

The State v Chris Nawa (N0.2) [2009] PGNC 115; N3732 (29 July 2009), Lenalia J

The State v Panka Harai [2016] PGNC 426; N6916 (15 March 2016), Polume- Kiele, J

8. All the cases cited serves as guide and indicate the range of sentences that have been imposed. Sentences passed in all of the cases cited ranged from 2 to 8 years except for State v Philip Soni & one or (supra) in which a 15 years jail sentence was imposed. Again each of them were decided on merits of their own facts and circumstances as well as other relevant sentencing factors.
9. I also rely on sentencing considerations decided by the Supreme Court in Stanley Sabui v The State [2007] PGSC 24; SC866 (27 June 2007) in sexual offences cases. These considerations were posed as questions. By answering the questions sentencing judge will be in a position to decide whether factors are favourable to the prisoner or are more against him. Let me set out the considerations:

“1. Is there only a small age difference between the offender and the victim?

2. Is the victim not far under the age of 16 years?

3. Was there consent?

4. Was there only one offender?

5. Did the offender not use a threatening weapon and not use aggravated physical violence?

6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim?

7. Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one?

8. Was it an isolated incident?

9. Did the offender give himself up after the incident?

10. Did the offender cooperate with the police in their investigations?

11. Has the offender done anything tangible towards repairing his wrong, e.g. offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did?

12. Has the offender not caused further trouble to the victim or the victim’s family since the incident?

13. Has the offender pleaded guilty?

14. Has the offender genuinely expressed remorse?

15. Is this his first offence?

16. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?

17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?”

10. Going by the above considerations factors are more favourable to you than those that weigh against you. No means assessment and pre-sentence reports have been received from the Probation Officer despite couple of adjournments that were granted for the reports to be filed. As such no other information and including views from the girl and her family were available to the court.
11. During trial court heard you have reconciled with the girl’s family and paid an initial K500.00 compensation. This factor has been mentioned in your lawyer’s submission. Your lawyer considered the present case is not the worst kind and asked for a 6 years suspended sentence.
12. State lawyer concedes to that. Even so she urged the court to impose a strong and deterrent sentence given the seriousness of the crime.
13. She argued this case is similar to State v Melly (N0.2) (supra) in which after trial prisoner was sentenced to 8 years imprisonment with hard labour. I have read the case for my benefit. I am not persuaded and will not follow the case for these reasons.
14. Offender in that case was a married man, having a wife and two children. He was in an adulterous relationship with the girl over a period of time without her wife knowing. That perhaps had a significant bearing in the sentence that His Honour decided to impose.
15. That is not so in this case even though case was put to trial by the offender. Offender in this particular case is a single young adult. He was just a year older past the juvenile age when he committed the offence with a girl who was 4 years his junior.
    

COURT’S VIEW ON THE CRIME

16. No one including you cannot deny that all forms of sexual abuse against children be it male or female is prohibited by law. The current law, Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, provides very severe penalties for various offences from the minimum of 5 years to maximum life imprisonment. The particular offence you were convicted of carries a maximum imprisonment term of 25 years. But court has a discretion to impose on you a lesser penalty by invoking s 19 sentencing discretion.
17. You were a young adolescent. You were in a transitional phase of physical and psychological development between the age of childhood and adulthood. As human as you are there is a natural tendency for a young boy like you to develop strong sexual desire and feelings towards the opposite sex. You had a special liking for the girl who was your neighbour living with her parents and started providing her money and items. You were so pre-occupied with your feelings towards her that you forgot to give a second thought that the girl was a minor and underage who the law protects against all forms of sexual exploitation and abuse.
18. Similarly the girl was going through the same adolescent stage of physical and psychological development. She was conscious of her physical and psychological growth. That night she willingly followed you out and you both had sexual intercourse giving little regard to her own age.
19. But the position of the law is that even if she was a willing partner and consented to having sexual intercourse that will not save you from criminal prosecution. You will still be punished for that.
20. What sentence should this court impose on you? I have considered sentences imposed in the cited cases. In your case there are more mitigating factors that should lean to your favour as against factors of aggravation. While I appreciate the offence is quite prevalent and the public cry for stiffer penalties against perpetrators of sexual crimes against children each case must be decided on its own merits.
21. The end result of the discussions is that;
    1. You are sentenced to 4 years with hard labour to be served at Kerevat Jail.
    2. Period in custody is discounted from 4 years imposed
    3. Resultant period of sentence is wholly suspended with these conditions:
       1. Prisoner to enter into written recognizance of good behaviour bond for the entire duration of the suspended sentence.
       2. Prisoner to pay a fine of K1000.00 with 14 days.
       3. Prisoner is restraint from communicating with or having close contact and association with the girl (victim).
       4. Prisoner is prohibited from consumption of alcohol and other illicit drugs
       5. Upon release from custody Prisoner to report immediately to the Probation Officer Kokopo and shall remain at his usual place of residence at Sonoma for further contact by the Probation Officer.
       6. Prisoner shall not change his residential address without giving prior notice to the Probation Officer.
       7. Prisoner to maintain peace and good order in the community at all times.
22. Probation officer to file six monthly report to this court with the first report due on 28 February 2019.

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