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State v VW [2022] PGNC 247; N9734 (10 June 2022)

N9734

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (JJ) NO. 75 OF 2021

BETWEEN:
THE STATE

AND:
VW

Maprik: Rei, AJ
2022: 5^th, 8^th, 9^th & 10^th June

CRIMINAL LAW: Practice & Procedure – plea – juvenile – rape of girl of 10 years – refusal of parents for diversion – special considerations on sentence – probation – non-custodial sentence – juvenile prisoner under care of parents – conditions imposed.

Cases Cited:

Kuri Willie -v- The State [1987] PNGLR 298
The State -v- Penias [2014] PGNC 41, N5659
The State -v- SE (a Juvenile) [2019] N7971, CR (JJ) No.1385 of 2019
The State -v- DM [2018] N7747
The State -v- JG [2014] N5576
The State -v- DP (Juvenile) CR 937 of 2019

Legislation:

Section 19 & 229A(1) & (2) of the Criminal Code
Section 6(h), (i) & (n), Section 19(2)(c), Section 20, Section 85(1)(b), Section 80 & Section 77(2) of the Juvenile Act No.11 of 2014
Crimes Compensation Act

Counsel:

Mr. Andrew Kaipu, for the State
Mr. Dan Siki, for the Defence

10^th June, 2022

1. REI AJ: An indictment was presented by the State on the 9^th of June 2022 alleging that:-
   

COUNT 1:

VW of Serpmel Village, Ambunti/Drekikier District, East Sepik Province stands charged that he at Serpmel Village, Ambunti/Drekikier District, East Sepik Province in Papua New Guinea on the 15th day of August 2020, engaged in an act of sexual penetration with JONITA MANGLAI, a child under the age of 16 years, being aged at that time 10 years old, in that he introduced his penis into the vagina of that child, contrary to s.229A(1)(2) of the Criminal Code.

COUNT 2:

VW of Serpmel Village, Ambunti/Drekikier District, East Sepik Province stands charged that he at Serpmel Village, Ambunti/Drekikier District, East Sepik Province in Papua New Guinea on the 15th day of August 2020, engaged in an act of sexual penetration with JONITA MANGLAI, a child under the age of 16 years, being aged at that time 10 years old, in that he introduced his penis into the anus of that child, contrary to s.229A(1)(2) of the Criminal Code.

2. The brief facts of the case are that on the 19^th day of August 2020, the accused, who is a juvenile aged 13 years at the time of the offence, went to the creek, tackled the complainant to the ground and stripped her naked and had sexual intercourse with her by penetrating her vagina and anus.
   
3. Prior to arraignment, both Counsels advised that the father was present in Court and would assist the accused juvenile.
   

ARRAIGNMENT

4. The contents of the indictment and the brief facts of the case were read out to the accused and asked to plead to the charge as laid.
   
5. The accused entered a plea of guilty – Mr. Siki submitted that the plea was consistent with his instructions. A provisional guilty plea was entered.
   
6. Upon perusal of the file, the plea was confirmed as the statement of the victim and medical report support the allegations.
   

ALLOCUTUS

7. The juvenile prisoner said sorry to the Court for taking up its time and sorry to the victim and her parents.
   
8. He said he was doing Grade 4 at Kombio Primary School when he committed the offence. He expressed his desire to continue his education if placed on parole. Since then has paid K500.00 compensation.
   

MITIGATING FACTORS

9. VW is a Juvenile.

He is a first-time offender.
He entered an early guilty plea.
He corporate with the Police throughout their investigations.
He is remorseful of his actions, and he takes responsibility and appreciate the gravity of his offence. VW and his family has attempted and is still willing to pay compensation.

AGGREVATING FACTORS

10. The victim is a very young innocent tender age of 10.

The offence is very prevalent and committed by both male adults and juveniles.
The Juvenile offender used force to overpower and sexually penetrate not only her vagina but also her anus both of which caused her immense pain and injury as evidenced by the bleeding. The victim will suffer emotional trauma for the rest of her life

DECISION ON SENTENCE

11. The prisoner stands charged under Section 229A(1) & (2) of the Criminal Code is that, he on the 21st April day of 2019, raped the victim by inserting his penis into her vagina and anus.
    
12. He was 13 years of age at the time of the offence and is now 16; still a juvenile.
    
13. Section 229A (1) & (2) of the Criminal Code under which the juvenile prisoner was charged provides for the penalty of life imprisonment.
    
14. In the case involving an adult offender, the prescribed sentence is life imprisonment subject to Section19 of the Criminal Code. This sentence is applicable to a juvenile offender. But the Juvenile Act No.11 of 2014 makes special provisions on how the Court should deal with matters involving juvenile, especially on sentence and Section 85 (1)(b) says that, the sentence of life imprisonment shall not be imposed (on a Juvenile).
    
15. Section 6 (i) of the Juvenile Act provides that “unless the interest of justice require, otherwise criminal proceedings are not to be instituted against a juvenile if there is an alternative means of dealing with the matter.”
    
16. In this case, the Court gave directions on 16^th March 2022 for the facilitation of Part III titled “Diversion” to be effected.
    
17. A report dated 16^th March 2022 and filed by the Lorraine Nahuet, the 31^st day of March 2022 states that, the parents of the victim do not accept any form of compensation and that the matter be dealt with by the National Court of Justice sitting as the Juvenile Court provided for under Section 20 of the Juvenile Act.
    
18. Because of that (the report on Diversion), this Court hears this matter for sentencing.
    
19. Section 19 (2) (c) provides, amongst others, that:
    

“A Court of summary jurisdiction ..... may impose

an Order under Section 80, other than an Order for custody or imprisonment.”

20. Section 80 of the Juvenile Act provides for the various ways in which a juvenile can be sentenced on being found guilty of a charge which provision emphasizes the need for rehabilitation rather than custodial sentence.
    
21. And Section 6(h) provides that:
    

(h) parents of a juvenile have the right to assist him or her in proceedings under this Act or any other law, and, if possible, to participate in decisions affecting the juvenile; and

22. Section 6 (n) provides that:
    

(n) a juvenile is to be detained in custody for an offence (whether on arrest, in remand or under sentence) as a measure of last resort, and for the shortest period of time necessary; and

(emphasis added)

23. Section (1) of the Juvenile Act defines the word “Court” as:
    

(a) Juvenile Court or;

(b) a court of summary jurisdiction or the National Court exercising jurisdiction under this Act.

24. These provisions when read and applied together would entail that:
    

“courts must not imprison juvenile, but only as a last resort;

parents of the juvenile should be involved in the decision-making process including sentence to be imposed; and

court must be cautious when handing down a decision on sentence.

25. These views are clearly stated in the case of The State -v- Penias [2014] PGNC 41, N5659 (13 March 2014) per Batari J. in which His Honour said that ... “[T]he law requires the court to investigate all possible alternatives and to treat imprisonment as a last resort. This comes with the paramount duty to be constructive and not destructive in dealing with young offenders. The sentencer must act with care and restraint to subject a young offender to a sentence that is not only corrective, but also protective and useful to the offender and the community.”
    
26. His Honour in that case quoted the Supreme Court case of Kuri Willie -v- The State [1987] PNGLR 298 where Hinchliffe J said at p.299:
    

“A judge or a Magistrate who sends a young man to prison for the first time takes on a grave responsibility. It is not practical or desirable to lay down a general rule, but in many cases, it is desirable to take a risk to save a young man or woman from the consequences of prison.”

27. Mr. Kaipu for the State referred me to the decision of Berrigan J. in the case of The State -v- SE (a Juvenile) CR (JJ) No. 1385 of 2019 which was handed down on 22 August 2019.
    
28. In that case Berrigan J. sentenced the prisoner to 4 years imprisonment but deducted the time of remand of 2 years 2 months and 8 days and suspended the remaining balance with conditions.
    
29. Mr. Siki referred me to the following cases:
    

The State -v- SE (A Juvenile) [2019] N7971, Berrigan J. The offender, was a juvenile who pleaded guilty to one count of sexually penetrating a child under the age of 12, contrary to s.229(A)(1)(2) of the Criminal Code (Ch. 262) (the Criminal Code). He was sentenced to 4 years imprisonment. His sentence was suspend per his time in custody and the balance of the term of imprisonment was served pursuant to s.80(2) of the Juvenile Justice Act where he was placed on Probation with conditions.

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.

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.

30. These cases involve juvenile prisoners whose sentences were suspended. However, in the case of The State -v- DP (Juvenile) CR 937 of 2019, His Honour Salika CJ imposed a custodial sentence because the prisoner committed the offence over a period of time.
    
31. Whilst these cases can be considered as guidelines on sentencing juveniles, Section 77(2) of the Juvenile Act No.11 of 2014 provides that “in determining sentence ... a Court is not, having regard to an individualized approach to juvenile sentencing, strictly bound by precedents.”
    
32. I am mindful of the perils involved in sentencing juveniles to imprisonment and the imminent dangers attending thereto.
    
33. In this case, I note the juvenile is a first time offender, did express genuine remorse and sought that he be given a non-custodial sentence so that he attends classes in furtherance of his education. I am taking a risk in the sentence, I will impose here. But it is desirable to do so, in view of the fact that, the juvenile is desirous of continuing his education if placed on parole.
    
34. In accordance with Section 6 (h) of the Juvenile Act, his father was present in Court who did give a strong undertaking that he will do his best to rehabilitate the juvenile if he is put on probation.
    
35. He also expressed that his wife; the mother of the juvenile, is now disabled and that the prisoner should be around her to assist in her ailment.
    
36. He was asked in Court whether he works for a salary. He said he does not and that he has little means of earning.
    
37. To incarcerate the juvenile would crush him in life. In fact, he has spent almost 1 year 10 months in Boram CIS without bail which I regard as overly satisfactory.
    
38. In my consideration, the entire provisions of the Juvenile Act appears to protect juveniles such that all steps be taken to reach an amicable resolution of the matter outside of Court. This to my mind places a heavy duty of care on the part of lawyers to facilitate and not only the Court. It is the lawyers who should advise the Court how best the juvenile problem can be resolved.
    
39. In the exercise of my discretion under Section 80 of the Juvenile Act the following Order:
    

(a) THAT the juvenile be imprisoned for a term of 2 years 10 months;

(b) THAT the time spent in remand awaiting the trial of this matter is deducted leaving the balance of 12 months;

THAT the balance of the term of 12 months is wholly suspended and the juvenile is placed on probation upon the following conditions:-

the juvenile shall remain in the custody and supervision of his father after school hours;

the juvenile shall be on good behaviour for 12 months;

the Probation and Parole Officer is to monitor the progress of the juvenile prisoner and make a report to the Registry of the National Court of Justice, Wewak, on the first Monday of each month for the duration of the suspended term;

shall attend church services in the nearest SDA Church every Sabbath or recognized;

shall not harass, intimidate or pester the victim and her relatives in anyway; and

shall in accordance with Criminal Law (Compensation) Act No. 26 of 1991 pay compensation of further K1,000.00 within 12 months from today to the victim.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendants