N9545

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. (JJ) 69 OF 2021

BETWEEN:
THE STATE

AND:
PM

Angoram:  Rei, AJ
2021:  6th, 11th, 12th, 13th & 19th October

CRIMINAL LAW – plea of guilty – sexual penetration of a child of 9 years of age – juvenile aged 17 years at the time of offence – sentence of 3 years – part of sentence suspended.

Cases Cited:

The State -v- Junior Bob Namah [2021] N9157
The State -v- Ben Sakias [2011] N4238
The State -v- Kuyap Toki Jonathan [2008] N3315
The State -v- Sangep [2012] N4684	

Legislation:

Section 229A (1) & (2) of the Criminal Code Act
Section 19 of the Criminal Code Act
	
Counsel:	

Mr. Solomon Kuku, for the State
Mr. Stanley Parihau, for the Defendant

DECISION ON SENTENCE

19th October, 2021

1.	REI AJ: The accused who is an infant/juvenile was arrested and charged with the offence of sexual penetration of a child under the age of 12 years but 9 years of age at the time of the offence.

2.	The State through Mr. Popeu presented an indictment against the accused on the 11th of October 2021 carrying the charge that:

“Pekos Manua of Kambot Village, Angoram East Sepik Province at the Angoram Airstrip in Papua New Guinea engaged in an act of sexual penetration with one Teshalyn Smagin a child under the age of 12 years (old) namely 9 years old by inserting his penis into her vagina.”

FACTS

3.	The brief facts of the case are that on the 21st of April 2021 between 10 am and 12 noon, the victim was walking back to her home when the 17 year old accused crossed paths with her and took her to the end of the old Angoram Airstrip where he stripped her off her clothes and sexually penetrated her under the pretext that he is related to her aunty.

4.	As a direct result of his sexual penetration, her genitals were torn and bled.

5.	The medical report prepared by the Health Extension Officer Ms. Silvia Uti which is Ex “K” confirms this.

ARRAIGNMENT

6.	The accused was arraigned on 12th October 2021 in which both the contents of the indictment and the facts were read out to him.

7.	The accused pleaded guilty to the charge as laid which was confirmed by his Lawyer Mr. Parihau as being consistent with his instructions.

8.	I confirmed the plea upon perusal of the committal file and found him guilty as charged.

ANTECEDENTS

9.	The accused has no previous criminal record.

ALLOCUTUS

10.	The prisoner said sorry for what he did and asked for leniency

MITIGATING FACTORS

11.	The mitigating factors are that:

•	First time offender
•	Pleaded guilty to the charge
•	Juvenile offender of 17 years of age
•	Surrendered and cooperated with the Police
•	Admitted in the record of interview
•	Acted alone

AGGRAVATING FACTORS

12.	The aggravating factors are:

•	Victim was caught unaware and traumatized
•	Force used
•	Loss of blood
•	Damage to area of vagina
•	Victim was 9 years old
•	Health has deteriorated

SENTENCE

13.	This is a case in which the prisoner is a juvenile and a complete stranger to the victim and her family.

14.	The circumstances leading to the commission of the offence are somewhat strange in that the 17 year old prisoner enticed the victim that she will be safe in his care and custody as he was related to the aunt of the victim.

15.	Being confident that she will be taken care of she accompanied him to the other end of the old Angoram Airstrip and to her dismay and bitter hopelessness, was forced to have sexual intercourse with the prisoner.

16.	The issue of consent is immaterial in this matter as the victim child was 9 years of age and was not in a position to understand what was to happen to her.

17.	The prisoner did not show any respect for the child thus forcing his penis into her vagina with such force that her genitals were damaged.

18.	It must be borne in mind that the victim will live the rest of her life in utter shame and dislodgment from the community because of this eventuality.

19.	In the recent decision of the National Court of Justice in Vanimo, which I handed down a decision on the matter of The State -v- Junior Bob Namah [2021] N9157.  I said:

“The sentences passed in these types of case show three (3) extremes.  The first is the category of offenders who were in a position of trust; close relatives enticing young children to enter into sexual intercourse.  The other extreme is the category where people use violence to satisfy their evil desire whether the victim is related or that he is in a position of trust or not or is a stranger.

The third extreme category involves what is described as consensual sexual intercourse where the child voluntarily agrees to have sexual intercourse with an adult male despite of her being underage.”

20.	I then said in that case that:

“Children are the spine of a nation who ought to be encouraged to excel in life so that whatever special attributes they have, be developed and used in nation building.  I do not know what special attributes the victim in the instant has.  But as a child striving to learn and become a responsible citizen of this country, adults including the prisoner should feel responsible to help her.

Every child must be given an opportunity to be educated and must develop into becoming good citizens of this country.

The actions of the prisoner in this case have forever destroyed the future of the child victim.  Instead of helping her to become a responsible citizen of this country, he destroyed her, as the uncle of the victim.”

21.	The following cases are examples of sentences handed down in this type of cases.  Although the prisoner in each case is not a juvenile, the cases involve S.299A of the Criminal Code Act and are relevant for consideration here.

22.	The State -v- Ben Sakias [2011] N4238. The offender in this case pleaded guilty to the offence of persistent sexual abuse.  He was 28 years old, and the victim was 14 years old with 14 years age difference between the both of them.  There was a breach of trust since the Offender was the victim’s uncle and the victim got pregnant as a result of the abuse.  He was sentence to 12 years imprisonment.

23.	The State -v- Kuyap Toki Jonathan [2008] N3315. The offender pleaded guilty to the offence of persistent abuse of a child under section 229D of the Criminal Code Act.  The offender was cared for by the family of the victim.  The offender was 21 years old at the time of the incidents.  The victim was 13 years old.  There is an 8 year difference in their ages.  The Court found that the offender had on four (4) different occasions, with the use of force and weapons penetrated the victim’s vagina with his penis.  The victim fell pregnant as a result of these sexual encounters.  The Court sentenced the prisoner to 18 years imprisonment less the time he had spent in jail.

24.	The State -v- Sangep [2012] N4684. Offender is a 50 year old man who pleaded guilty to one count of incest, contrary to Section 223(1) of the Criminal Code.  He had sex with his younger sister’s 16-year-old daughter, his niece.  The offence was committed at Garup village in the Sumkar District of Madang Province in June 2011.  The offender followed his niece to the river where she was preparing to wash dishes.  He grabbed her from behind, took control of her and without her consent penetrated her vagina with his penis, and did that three times in one day.  This caused her to become pregnant and she has given birth.  She did not immediately tell anyone what happened as the offender had threatened to harm her if she reported him but when it was clear that she was pregnant she was asked questions, which led to her telling her parents that it was her uncle who was responsible.

25.	The prisoner in this case is a stranger to the victim and her family who was not in a position of trust when he committed the offence.  He is a juvenile.

26.	A Pre-Sentence Report (“PSR”) prepared on this matter does not speak well for him.

27.	Most remarks made in the PSR are against him such as comments made by his father and the class teacher.

28.	The parents are thoughtful for the prisoner’s education and have requested for a non-custodial sentence to be imposed so that he continues his education.  The class teacher and headmaster of the school expresses a contrary view in the following terms:

“Pekos is a problem child.  He would register in school at the beginning of the school year and would start skipping classes; then during the course of the school year would stop coming to school completely.  He had been doing this since grade 3.  When the school year starts he would register and jump grades without completing the grade for the full year.  He was repeating his grade 5 for the third time when he committed this trouble.  Pekos had bad records in the school.  He had been called into the office many, many times for teasing and harassing girls.  His attitude had never changed until he committed this trouble.  Even though he may look small physically but his mind is already mature.  He thinks and acts like an adult;  this is probably the cause of him committing the crime.”

29.	The PSR further stresses that the matter is fresh, tension in the community is very high and that his release on probation will escalate the problem.

30.	I am not convinced the prisoner be given a non-custodial sentence.  However, the prisoner is a juvenile.  He is a young offender and has a lot of future to look forward to.

31.	Placing him in prison at the early stage of his life may not be good for him in the long run.  But the PSR convinces me that he should be imprisoned for his own safety.

32.	I have had the opportunity of reading the case of The State -v- SE (A Juvenile) [2019] N7971 in which Justice Berrigan imposed a sentence of 4 years less time spent in prison of 1 year 9 months and remaining balance was served on probation.

33.	In the case of The State -v- DM [2018] N7784 His Honour Koeget J. imposed a sentence of 2 years which was wholly suspended.

34.	In the case of The State -v- AB (Juvenile) [2016] PGNC 245 N6440, the offenders held up the victim while going to her house and was held down by an accomplice and sexually penetrated.

35.	His Honour Lenalia J. placed him on a 3 year probation period on strict conditions.

36.	In the case of The State -v- JT (Juvenile) [2012] PGNC 347 N4726, the prisoner was sentenced to 4 years imprisonment from which 3 years 11 months and 25 days was spent in custody and the balance was suspended.

37.	This case involves the prisoner grabbing the victim, throwing her to the ground and sexually penetrating her.

38.	Most of the sentences imposed in similar cases were either wholly suspended or partially suspended.

39.	The prisoner in this case has served 4 months and three weeks in remand.

40.	As I said earlier the PSR has strongly recommended a prison term for his own safety.

41.	It is for his own safety that the prisoner be incarcerated.  In doing so, Section 229A of the Criminal Code Act that provides for a sentence of life imprisonment.

42.	I will however, exercise my discretion under S.19 and impose a sentence of 4 years out of which the term served in remand be deducted leaving him with a sentence of 3 years 7 months and 7 days.

43.	The balance of the term of 3 years 7 months 7 days is to be served in prison at Bomana CIS, Port Moresby at Juvenile lock up.

44.	He is placed on probation for 12 months on the following conditions after serving his prison term of 3 years 7 months 7 days:

(i)	Be on probation for 2 years
(ii)	Keep the peace and good behaviour for the probation period
(iii)	Not to commit any offence 
(iv)	Not to change residence
(v)	Allow the Probation officer to enter his home at reasonable hours within probation period
(vi)	Restrain from consuming alcohol or any intoxicating drugs during the probation period
(vii)	Restrain from having physical contact with the victim
(viii)	Upon his release from Bomana CIS Juvenile Lock Up he shall return to his home village in Aitape to serve his probation period
(ix)	That the relatives of the victim are forthwith restrained from harassing or intimidating the prisoner and his parents and relatives and also the relatives of the prisoner are forthwith restrained from harassing and intimidating the relatives of the victim and her parents.
(x)	Breach of any of these conditions, he will be arrested and will serve the balance of his sentence in prison.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner