N7971

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (JJ) 1385 of 2019

THE STATE

V

SE (A Juvenile)

Waigani: Berrigan J
2019: 12 July, 8 and 19 August

CRIMINAL LAW – Practice and procedure – Sentence –S. 229A(1)(2) of the Criminal Code – Sexual penetration of a child under the age of 12 years - Application of the Juvenile Justice Act, 2014.   

Cases Cited:

Goli Golu v The State [1975] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Stanley Sabiu v The State (2007) SC866 
The State v DM (2018) N7747
The State v GM, CR 1256 of 2016, unreported
The State v JG (2014) N5576
The State v Kuengu [1993] PNGLR 518 
The State v IA (2014) unreported

References cited

Section 229A(1)(2) of the Criminal Code (Ch. 262) (the Criminal Code)
Sections 6, 20, 28, 62, 63, 64, 66, 75, 76, 77, 79, 80, 81, 112 of the Juvenile Justice Act, 2014

Counsel

Mrs M. Tamate and Mr. A Kaipu, for the State 
Ms. E. Sasingian, for the Juvenile 

DECISION ON SENTENCE

22 August, 2019  

1.	BERRIGAN J: The offender, SE, is a juvenile who pleaded guilty to one count of sexually penetrating a child under the age of 12, contrary to s.229A(1)(2) of the Criminal Code (Ch. 262) (the Criminal Code).

2.	Subject to the Juvenile Justice Act, 2014, the offence attracts a maximum penalty of life.  The juvenile was 15 years of age at the time of the offence and 17 on sentence.  He will turn 18 next month.  Having regard to those matters the jurisdiction of the National Court has been invoked pursuant to s. 20(1) of the Juvenile Justice Act.  When exercising jurisdiction under s. 20, the Court shall, so far as is practicable, sit and conduct proceedings in accordance with the Juvenile Justice Act: s. 20(3).

3.	To this end proceedings were conducted in closed court pursuant to s. 69, and having regard to the principles outlined in ss. 6 and 66 of the Act.  Having regard to procedural and other requirements, proceedings were conducted, as far as practicable, in an informal manner pursuant to s. 66(1). The juvenile was seated with his counsel at the bar table, with his family and the juvenile justice officer seated immediately behind.  Neither myself nor my associate robed and, at my request, nor did counsel, whom I asked to remain seated when addressing the Court.  Steps were taken to ensure that both the juvenile and his parents understood the nature of the alleged offence and court procedures pursuant to s. 66(2). Maximum participation by both the juvenile and his parents was encouraged throughout the proceedings in compliance with s. 66(3) of the Juvenile Justice Act.    

Facts

4.	The following facts were established on the taking of the juvenile’s plea in accordance with ss. 63 and 64 of the Juvenile Justice Act. 

5.	The offence occurred on 10 October 2016.  At the time the juvenile and the complainant child, a 9 year old boy, were neighbours in a suburb of Port Moresby.  At about midday on that day the accused called the complainant and another boy to his grandfather’s back yard to collect and eat mangoes. The juvenile then took the complainant child to another house up the street and sexually penetrated him by inserting his penis into the anus of the complainant.

6.	The juvenile was charged on 17 November 2016 and taken into custody on committal on 14 June 2017, where he has remained for the last 2 years, 2 months, 8 days, a matter I will return to below.   

7.	Having regard to the nature and seriousness of the offence, the background and circumstances of the juvenile, the views of the victim’s parents (though not binding and discussed further below), the need to ensure public safety and the principles set out in s. 6 of the Juvenile Justice Act, including the best interests of the juvenile, the need to hold him accountable, and emphasise rehabilitation and reintegration, I determined that it was not in the interests of justice that the matter be resolved informally through diversion, despite the juvenile’s guilty plea: see ss. 28 and 62 of the Juvenile Justice Act, 2014.  

8.	The matter now comes for sentence, which is governed by Part VII of the Juvenile Justice Act, 2014 pursuant to s. 75.

Submissions and Comparative Cases

9.	Defence counsel submitted that this case involved a very serious and prevalent offence involving a young child, who had suffered trauma as a result. He also noted the serious stigma associated with an offence of this kind.  He asked the Court, however, to have regard to the juvenile’s age at the time of the offence and his remorse. He submitted that the juvenile lacked maturity and was experimenting or “playing about” with the victim.  He also submitted that the juvenile’s plea demonstrated that he now appreciated the seriousness nature of the offence and is prepared to be accountable for it. Further, having spent more than two years in custody, the juvenile also understands the consequences of his actions.  He submitted that an appropriate sentence of 4 years of imprisonment would be appropriate but asked the Court to wholly suspend the balance remaining to be served and place the juvenile on probation. 

10.	In support of his submission he referred the Court to The State v Kuengu [1993] PNGLR 518 in which a 29 year old male prisoner pleaded guilty to sodomising, without consent, a 16 year old male remandee whilst in custody and in circumstances involving threats, violence and injury contrary to s. 210 of the Criminal Code. At the time the offender was serving sentences for rape and robbery and had prior convictions for other offences.  He was sentenced to 3 years’ imprisonment.  The maximum penalty available was 14 years.

11.	With respect, this case has no relevance in my view to the matter currently before the Court.  It is from a very long time ago and well before the Criminal Code was amended in 2002 to recognise such conduct against a male as rape and to penalise it accordingly.  Those same amendments separately recognised the very serious nature of sexual violence against children and created the offence with which the juvenile is now before the Court.  The aggravated rape of a juvenile remandee by a convicted adult with a history of sexual violence is a very serious offence, and whilst I don’t wish to comment on the sentence imposed in that case, I would hope that similar conduct today would be charged under a provision that provides a more appropriate basis for sentence. 

12.	Counsel also referred to The State v IA (2014), unreported, in which Salika DCJ (as he then was), ordered that a sentence (unspecified on submission) of imprisonment for armed robbery be suspended and the juvenile enrolled in school after pleading guilty.

13.	The State submitted that a sentence in the range of 4 to 5 years of imprisonment was appropriate.  It effectively agreed with defence counsel that suspension was appropriate although suggested that the Court may wish to consider partial rather than full suspension of the balance of any term of imprisonment.  In support of its submissions it referred to the following cases:

(a)	The State v GM, CR 1256 of 2016, unreported, in which the juvenile aged 17 years, pleaded guilty to sexual touching.  In that case the juvenile dragged the victim into the bush and rubbed his erect penis against the victim’s anus. There were no physical injuries but the victim suffered emotional and psychological trauma. The Court considered that the 1 year, 2 months and 26 days spent in custody was sufficient and sentenced him to the rising of the Court;

(b)	The State v DM (2018) N7747, Koeget J, in which the juvenile, aged 15 pleaded guilty to sexual penetration of a 5 year old girl. The juvenile was sentenced to 2 years of imprisonment, less time served, with the balance wholly suspended upon the juvenile’s promise to keep the peace and be of good behaviour; and

(c)	The State v JG (2014) N5576, Cannings J, a matter dealt with prior to the Juvenile Justice Act, in which the juvenile, aged 15 pleaded guilty to sexually penetrating a 3 year old boy in circumstances of trust, authority and dependency. The prisoner was sentenced to 4 years of imprisonment wholly suspended on strict conditions.

14.	I also note Stanley Sabiu v The State (2007) SC866 in which the Supreme Court expressed the view that the starting point in a case involving the sexual penetration of a child under the age of 12 years should be 15 years’ imprisonment, to be adjusted having regard to any aggravating and mitigating factors in the particular case.  Whilst not strictly binding, the case provides a guideline.  For the reasons discussed below, there are a number of mitigating factors and other important considerations under the Juvenile Justice Act, which will result in the sentence in this case being well below that suggested Sabiu.  Nevertheless, it is useful to bear it in mind.  It reflects the serious nature of the offence currently before the Court.    

15.	As in all cases, the sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.  Pursuant to s. 77(2) of the Act, the Court is not strictly bound by precedent in determining sentence, which is, amongst other things, to promote an individual response appropriate to the juvenile’s circumstances and proportionate to the circumstances surrounding the offence: ss. 76(1)(b) of the Act.

Considerations on Sentence

16.	I have taken into account the following matters having regard to s. 77 of the Act.  I have also considered the pre-sentence report which was prepared by a juvenile justice officer pursuant to s. 79(1) of the Act.

17.	On allocutus the juvenile said “I want to say sorry to the victim. And I want to ask the court to have mercy on me and give me a non-custodial sentence so that I can complete my studies. When I committed the offence, I was just playing with him. And it was my first time to commit that offence.”

18.	The juvenile’s father also called for his son to be placed on a good behaviour bond. 

19.	There can be no doubt that this was a very serious offence.  It involved the sexual penetration of a young child, who was the juvenile’s neighbour.  Whilst I accept that the juvenile lacked maturity and did not fully appreciate the seriousness of his conduct, I do not accept that he was just “experimenting” or “playing about”.  Whilst an offender is to be given the benefit of the doubt on any fact to which he has not pleaded guilty, a matter raised in mitigation must be established on the balance of probabilities.  In this case there was a significant difference in age between the 15 year offender and his 9 year old victim.  It is not necessary to prove a lack of consent for the purposes of s. 229A but it is clear that there was none and it is hardly relevant given the age of the victim.  The offence was intentional and involved an element of planning, as demonstrated by the fact that the juvenile took the victim away to a house to commit the offence.   

20.	It is not in dispute that the victim suffered emotional and psychological trauma as a result of the offence, nor that he will continue to suffer the stigma associated with this type of offence within his community. The victim, who is still a child, and his parents did not attend the proceedings.  That is a matter for them and entirely understandable in the circumstances.  Instead they have asked the Court through the pre-sentence report to make a decision according to the law as it would in a similar case.  According to the pre-sentence report the victim has undergone counselling, is now happy and plays with other children.  In his parents’ view he has grown out of his “trauma stage” and is also doing well at school.  Whilst this is positive, it is impossible to know the long term impact of the offence at this stage. 

21.	As for the juvenile, the report says that his father and mother have been separated for the past 6 years. His father is unemployed and now lives with the juvenile’s sister in the juvenile’s grandfather’s house.  The juvenile is the 3rd born in a family of four (4) siblings; three (3) males and one (1) female.  His older brothers are married and have built their houses in the same area.   

22.	The juvenile is yet to complete his primary education.  He was in Grade 5 at the time of his arrest and if released intends to complete his education before seeking employment in the city.   He has undertaken a number of courses whilst on remand, including cooking lessons, bible teaching, yoga training and “Youths as Agents of Behaviour Change”.  He is generally in good health.  There is nothing in the pre-sentence report to suggest that there have been any issues with respect to his conduct whilst he has been in custody.

23.	In mitigation this is the juvenile’s first offence.   He pleaded guilty at the earliest opportunity before the National Court.  I take his plea into account on the basis that he has saved the State the cost of running a trial and spared the victim, and the victim’s family, the trauma of reliving the offence.  

24.	His plea is also indicative of his remorse, which he expressed on allocutus.  He apologised to the victim, which I accept as genuine.  In the pre-sentence report he also said that he regretted the offence, blamed himself and had no idea of the pain and the suffering that it would cause.  He says that he has learnt a lot from the criminal process and promises never to do anything “bad” or go back to prison.

25.	As a matter of special mitigation I take into account the juvenile’s age at the time of the offending.  I also accept that having regard to his age and the material before me, the juvenile lacked maturity and did not fully appreciate the impact of the offence on the victim.   

26.	I also accept that the offence has had and will continue to have a grave impact on the offender himself.  He has already lost the last three years of his education at a critical point in his development.  He faces the prospect of returning to school as an adult.  I also accept that despite the best efforts of those concerned to keep the matter confidential, it is highly likely the offending is already known to members of his community, a matter that will bring shame to both him and his family.       

27.	The delay in being brought to trial is also a matter of special mitigation, aggravated by the fact that he was held in custody at the Bomana Juvenile Detention Centre without support or assistance from responsible agencies for more than two years. This is obviously contrary to the principles and provisions of the Act and will be reflected in sentence.  

28.	It is unclear on the records before me where the responsibility lies other than to say that the investigating police, the Office of the Public Prosecutor, the Office of the Public Solicitor, the Juvenile Justice Service, Correctional Services, the Juvenile and National Courts and their registries all have an obligation under the Act to ensure that the rights of juveniles are protected and, amongst other things, that cases against them are completed speedily. 

Sentencing Principles
29.	The purposes of sentencing a juvenile are to: encourage the juvenile to understand the consequences of and be accountable for the harm caused by his or her actions; promote an individual response which is appropriate to the juvenile’s circumstances and proportionate to the circumstances surrounding the offence; promote the rehabilitation and reintegration of the juvenile into the family and community; and ensure protection of the public: s. 76(1) of the Juvenile Justice Act.

30.	The primary consideration on sentence, as for all actions concerning a juvenile, are the best interests of the juvenile: s. 6(b) of the Juvenile Justice Act. The sentence shall be determined in accordance with the principles set out in ss. 6 and 76(2) of the Juvenile Justice Act. 

31.	Any sentence imposed shall be proportionate to the seriousness of the offence and the degree of responsibility of the juvenile for that offence.  The sentence shall be the least restrictive sentence that is capable of achieving the purposes set out in s. 76(1), and be the one that is most likely to rehabilitate the juvenile and reintegrate him into society whilst also promoting a sense of responsibility in the juvenile, and an acknowledgement of the harm done to the victim and the community. The sentence shall have regard to the juvenile’s age and limited capacity to appreciate the consequences of his actions, and shall not result in a punishment that is greater than the punishment that would have been appropriate for an adult who has been convicted of the same offence in similar circumstances. If appropriate juveniles shall be permitted to remain in the community.  Deprivation of liberty shall be used only as a measure of last resort, and for the shortest period necessary to achieve the purposes in 76(1): s. 76(2)(a) to (f) of the Act.

Sentence

32.	The juvenile has been convicted of one count of sexually penetrating a child under the age of 12 years, contrary to s. 229A(1)(2) of the Criminal Code, a serious indictable offence for the purposes of s. 81(2)(a)(ii) of the Act. The maximum penalty for this offence under the Criminal Code is life imprisonment.  Pursuant to s. 85(1)(b) of the Juvenile Justice Act, however, the National Court shall not impose a sentence of life imprisonment on a juvenile.  It may, however, subject to s. 81, order that the juvenile serve a term of imprisonment in the juvenile section of a correctional institution for any period as is prescribed for an adult who committed the same offence in similar circumstances: s. 80(1)(n)(p), or order that the juvenile be committed to the care of the Director of Juvenile Justice, with a directive that the juvenile be committed to custody in a juvenile institution selected by the Director for a period not exceeding five years: s. 80(1)(m).  The sentence shall not 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: s. 76(2)(d).

33.	The Act provides the Court with broad discretion on sentence.  It is well established that the maximum penalty is normally reserved for the most serious instances of the offence: Goli Golu v The State [1975] PNGLR 653.  Whilst the maximum of life is not available in this case in any event, it is also my view that this case does not fall within the worst category of the offence.   

34.	As above, the best interests of the juvenile are the primary consideration on sentence: s. 6(b).  S. 81(1) of the Act provides that a Court shall not impose a sentence of custody or imprisonment under S. 80(1)(m) or (n) on a juvenile unless the Court has considered all alternatives under the Act and has determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purposes and principles of the Act.  Furthermore, as above, s. 76(2(f) provides that deprivation of liberty shall be used only as a measure of last resort and for the shortest period necessary to achieve the purposes of sentencing contained in s. 76(1). 

35.	This must be read in the context of the other principles relevant to this case, including that the purposes of sentencing a juvenile are to:  encourage the juvenile to understand the consequences of and be accountable for the harm caused by his actions; promote an individual response which is appropriate to the juvenile’s circumstances and proportionate to the circumstances surrounding the offence, promote the rehabilitation and reintegration of the juvenile into the family and the community; and ensure the protection of the public: s. 76(1)(a)(b)(c) and (d).

36.	Having regard to s. 81(1), and having considered all of the above matters and the alternatives under the Act, I have determined that there is no reasonable alternative or combination of reasonable alternatives, that is in accordance with the purposes and principles of the Act, other than to impose a head sentence of four (4) years of imprisonment pursuant to s. 80(1)(n), less the time already spent in custody since 14 June 2017, namely 2 years, 2 months and 8 days, leaving a balance of 1 year, 9 months and 22 days.  The balance shall be served in light labour in the Juvenile Section of the Bomana Juvenile Detention Centre up until the juvenile attains the age of 18 next month, noting that imprisonment in a correctional institution under s. 80(1)(n) shall not include hard labour: s. 81(3).  I am satisfied that the Bomana Juvenile Detention Centre has appropriate facilities for the imprisonment of the juvenile pursuant to s. 81(2)(b).  Upon the offender attaining the age of 18 years he shall serve the balance of his sentence in the adult prison at Bomana.

37.	In my view no head sentence other than a period of detention is appropriate having regard to the seriousness of the offence. It is necessary having regard to the best interests of the juvenile and to encourage him to understand the consequences of and be accountable for the harm caused by his actions.  The prevalence of sexual violence against children and the need to protect the community from these types of offences also calls for both general and specific deterrence and no head sentence other than a period of detention is appropriate in the circumstances.  The period of 4 years of imprisonment represents the shortest period of time necessary to achieve the purposes set out in s. 76(1).  It is proportionate to the seriousness of the offence having regard to comparative cases and the particular circumstances of this case.  It takes account of the aggravating factors, including the victim’s age, the emotional trauma suffered, the stigma associated, and the prevalence of the offence.  It reflects the juvenile’s culpability and the matters in mitigation identified above, including his age and lack of maturity and the fact that he did not fully appreciate the consequences of his actions as a result, his lack of criminal history, his early plea, his acceptance of responsibility and his genuine remorse.  It also reflects the delay associated with the matter.   

38.	The pre-sentence report by the juvenile justice officer placed before the court and the statements made by the juvenile during the proceedings establish, however, that there are good prospects for the juvenile’s rehabilitation.  He has demonstrated some insight into the seriousness of the offence and the impact on the victim and expressed a commitment not to reoffend again.  The statements of his father, and the presence of his brothers and cousin, during the proceedings also show me that he has a suitable place for living and further satisfy me of his prospects for rehabilitation and reintegration into family and community, with their support.  

39.	In the circumstances, I am satisfied that suspension of the balance of the head sentence in accordance with the following conditions would also meet the principles and purpose of sentencing under the Act.  Whilst recognising the seriousness of the offence, this effective sentence is the one most likely to promote his rehabilitation and reintegration into society.  This is clearly in the juvenile’s best interests.  

40.	Given his prospects in this regard I am not minded to adopt the State suggestion that the sentence is only partially suspended.  As the juvenile turns 18 next month this would see him spend at least some time in an adult facility.  I cannot see any utility in this in the current circumstances, nor having regard to the time already spent in custody and the delay associated with the matter. In fact, exposing him to convicted adult prisoners would be counterproductive to his rehabilitation and reintegration at this stage.  He has already spent more than two years in custody without any assistance from authorities, and it has been almost three years since the offence was committed.  I am satisfied that he appreciates the seriousness of the offence.  

41.	The proposed sentence is the least restrictive one capable of achieving the purposes of sentencing, is most likely to rehabilitate and reintegrate the offender into society, whilst also promoting a sense of responsibility in the juvenile and an acknowledgement of the harm done to the victim and the community: applying s.76(2)(b).   The conditions imposed also reflect the need to ensure protection of the community at large and the victim in this case, who whilst no longer a neighbour, still resides in the area.  Compliance with these orders will be regularly monitored and reported to the Court by the Juvenile Justice Service.

42.	Prior to imposing the sentence the juvenile and his father each confirmed that they understand the purpose and effect of the sentence and its suspension, together with the consequences that may following if the juvenile fails to comply with the order: see s. 80(5) of the Act.  

43.	Accordingly, I suspend the balance of the term of imprisonment to be served pursuant to s. 80(2) of the Juvenile Justice Act and place the juvenile on probation on condition that he:

(a)	is placed under the care and supervision of his father to monitor and guide his behaviour, with whom he shall reside for the balance of his sentence;
(b)	attend a school or place of learning to be determined by the Juvenile Justice Service from early 2019 for the balance of his sentence;
(c)	is to perform community service work under the supervision of the Juvenile Justice Service for the balance of his sentence.  The community service regime is to be determined within one month from today and is to take place five days a week until the juvenile attends school or a place of learning under condition (c), and then on Saturdays or Sundays for the balance of his sentence thereafter;
(d)	is restrained from coming within 300 metres of the victim at any time;
(e)	is restrained from coming within 300 metres of the victim’s house;
(f)	must keep the peace and be of good behaviour during the period of his probation; and
(g)	is to notify Juvenile Justice Services of any changes in address, place of education or employment circumstances.

44.	I make clear that the conditions of probation will also apply to the offender as an adult, noting that he will turn 18 next month. 

45.	Pursuant to. S80(3) of the Act, failure to comply with the conditions of probation will see the term of imprisonment imposed automatically take effect. 

46.	I further order that the Juvenile Justice Service shall provide a report to this Court on the conditions outline above one month from today, on which day the juvenile is to attend.  Thereafter reports are to be provided at three monthly intervals.  

47.	This decision will be published: s. 112(1) of the Act.  Details which may identify the juvenile have been omitted pursuant to s. 112(2) of the Act.  Any details which may identify the complainant child have also been omitted. 
48.	Orders accordingly.

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