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State v RB - A Juvenile (No 2) [2022] PGNC 438; N9849 (5 August 2022)

N9849

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.(JJ) 25 OF 2021

THE STATE

-V-

R. B – A JUVENILE
(NO.2)

Madang: Geita J
2022: 9^th February, 6^th May, 2^nd, 5^th August

CRIMINAL LAW – Sentence - guilty after Trial - Rape –Section 347 Criminal Code.

CRIMINAL LAW – Sentence - Rape – Sections 6 & 76 Juvenile Justice Act 2014 (No. 11 of 2014) - the best interests of the juvenile are the primary consideration - proportionate to the seriousness of the offence and the degree of responsibility of the juvenile for that offence – the best interest of the juvenile victim also an important consideration in sentence – token compensation considered.

CRIMINAL LAW – Sentence – Noncustodial sentence – On Probation with conditions – Given a second chance – Self Rehabilitation.

Cases Cited:
State v AB (Juvenile) (2016) N6440

LEGISTATION CITED:
Sections 6, 76 & 77 Juvenile Courts Act 2014 (No. 11 of 2014)

Counsel:
Francis Popeu & Deborah Ambuk, for the State
Noel Loloma & Delailah Ephraim, for the Accused

DECISION ON SENTENCE

5^th August, 2022

1. GEITA J: The Prisoner was found guilty after trial on 9 February on a charge of rape. The offence comes under section 347 (1) of the Criminal Code Act and attracts a maximum penalty of 15 years imprisonment.

2. The facts as found by Court on the conviction following the trial are these:

That on 17^th August 2020, R, B of Witex village, Yangoru Sausia, East Sepik Province sexually penetrated Lois Arnold by inserting his penis into her vagina without her consent at Mero Laga Settlement in Madang. The victim was forced into a nearby banana patch during the night, her bra and pants forcefully removed, causing a tear, and sexually penetrated her. As neighbours came looking for her, she was found naked with the accused, while the accused ran to his house naked, leaving his shirt and board pants behind.

3. Prior convictions were recorded against the juvenile. He is now 17 years and committed the crime when 16 years. He is the third born child out of six children. Both his parents are alive. He is currently attending grade 8 at Lutheran Day Primary School in Madang. He is from Yangoru Sausia in East Sepik Province. As to his aggravation factors, prevalence of the offence remains high. As to his mitigation factors he is a juvenile, a first-time offender, cooperated with police. He has expressed remorse and not breached any of his bail conditions.

4. During allocutus he apologised to the victim and her family members including his parents for getting them into this trouble. He apologised to both lawyers, court staff and CS officers. He asked to be considered for probation to continue his grade 8 education and prepare for his examinations.

5. A pre-sentence report has been prepared on your behalf by Probation Officer Ms Biko. The report outlines brief summaries of your family life and school, your standing in the community, the views of the victim including any recommendations of your suitability for you to be considered for probation. You are a juvenile aged 17 years and currently in primary school. You are third in your family of six children. The community views obtained by the Probation Officer is divided. Your local church pastor and ward councillor hold you out to be a good child whereas the general community views do not seem to agree with their views. Generally, the community is saying that you do not act like a student, but you act like a street kid who gets drunk and create a nuisance within the community. You still maintain that the victim was at fault as she forced you to rape her.

6. The probation officer was not able to get the views of the victim as she was away in school at Raicoast High School. However, the views of the victim’s mother and brother were obtained. She gave an account of how the victim was called a bastard when she was brought to the accused house immediately after the incident by the accused’s father. She said the victim stayed out of school for a year due to shame and trauma over the incident. The victim’s brother recalled the victim being ridiculed the times she attended Police Family and Sexual Violence Unit regarding this matter, saying the experience was stressful. The victim’s family are demanding that the accused pay K5000 to the victim. Your suitability for probation was not readily recommended by Ms Alice Biko.

Submissions for the Accused

7. Counsel of Defence Mr. Noel Loloma submitted for a sentence between 2 and 5 years and invited court to consider the sentence options and purpose available to the juvenile under ss 76 and 77 the Juvenile Justice Act 2014. Section 6 (b) Juvenile Justice Act 2014 was also pointed out to the court: “...the interest of the juvenile to be given paramount consideration...” Counsel submitted that although the juvenile has committed a serious offence, he must be held responsible for the crime. He submitted that the juvenile did not use any weapon in this crime and no serious injuries were caused to the victim. Mr Loloma submitted for a least restrictive and rehabilitative sentence. The case of State v AB (Juvenile) [2016] N6440 was relied upon. This is a guilty plea case under the same section in which the juvenile was sentenced to 3 years on probation and ordered to pay K500.00 with a live pig and garden food.

Submissions for the Prosecution

8. Mr Francis Popeu for the Prosecution submitted for a head sentence of 5 years or more in view of the fact that offence has long term psychological effects on the victim who has since left the jurisdiction in shame and stigma. Although the probation report is not very favourable to the juvenile, the victim’s family members register the shame and their struggles to have this matter prosecuted. He submitted that since there is some willingness on the part of the juvenile to pay some compensation to the victim, the court may consider that option also.

Sentence- Sentencing Principles- Juvenile Courts Act 2014 (No. 11 of 2014)

9. Since the prisoner is a juvenile, I have addressed my mind to the relevant provisions affecting juveniles on sentence. First up is s.76 of the Juvenile Justice Act 2014:

76. Purpose and principles of sentencing.

(1) The purposes of sentencing a 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

(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 or her into society; and...

Next is section 6 of the JJA:

Section 6. General principles.

A Court or person exercising a power or performing a function in accordance with this Act is to be guided by the following principles:

(a) because of their youth and vulnerability, special considerations apply in respect to proceedings against juveniles, and —

(b) in all actions concerning a juvenile, the best interests of the juvenile are the primary consideration; and

(c) a juvenile must, as far as possible, be given an opportunity to express his or her views before any decision affecting the juvenile is taken.

Sentence

10. Your case is one which you held yourself out to be the victim’s boyfriend and sexually penetrated her under circumstances which was not supported by your story. The totality of your evidence also did not support your story, as there was no consent. In your case you behaved like a mature young man and committed that crime. I see no special considerations applying in your case. Nonetheless your redeeming feature is your best interests as a juvenile according to the Juvenile Courts Act. It follows that a custodial sentence will do you no good or cause hard to your future? Notwithstanding the seriousness of the crime of rape which you have committed, courts have often times offered young juveniles a second chance. I will do that for you and offer you a second chance for your personal deterrence and rehabilitation. You must remember that rape is a violation of the victim’s rights and dignity as an individual. In your case there is no aggravating circumstances to warrant a custodial sentence.

11. As to the case of State v AB (Juvenile) [2016] N6440, the juvenile in that case entered a guilty plea. The sum effect of his guilty pleas is that the victim and her witnesses were not called to give evidence. In your case you entered a not guilty plea. I am not saying for a moment that that is wrong, you are exercising your Constitutional right. Be that as it may you have forced the juvenile victim to come to court and relive the events and go through the trauma and shame of telling her story. To this end I will consider your sentence a little different to the case your Lawyer submitted before me. The victim has left this jurisdiction in shame. I am mindful of the fact that you must be made responsible for the wrong you have committed and take responsibility. As to payment of some token compensation to the victim it is important that you must bear some responsibility as it is not proper for your parents and or family members to take on this responsibility.

Order.

12. Due to the forgoing reasons, I sentence you to 5 years with hard labour. I will suspend the whole of the sentence and put you on probation to be of good behaviour for a period of 3 years with conditions. In the exercise of my discretion under s.19 Criminal Code you are ordered to pay a token compensation of K5000 to the victim for the trauma, anxiety, and shame she suffered as a result of this crime within a period of six (6) months. If you fail to comply with any of the orders you will be arrested and made to serve the full term of the sentence.
Orders accordingly.

Public Prosecutors: Lawyers for the State
Public Solicitors: Lawyers for the Accused