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State v Rumet [2024] PGNC 141; N10797 (8 May 2024)

N10797

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 454 OF 2024

THE STATE

V

JERRY RUMET

Kokopo: Miviri J
2024: 06^th & 08^th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 229A CCA sexual Penetration of Child under 16 years old – 15 years old victim – Girl & Boyfriend – prisoner 23 years old – Two Acts – Early guilty plea – victim saved – prevalent offence – First Offender – balance protection of child –Minimum Penalty 10 years IHL – Minus time on Remand – Balance Suspended.

Facts
Prisoner 23 years old was the boyfriend of the girl 15 years old who was known to her. Both had sexual intercourse twice. Matter was reported by another who saw them in the act to the parents.

Held
Guilty plea.
Boyfriend & girlfriend
First offender
Protection of children
10 years IHL minus time on remand
Balance suspended.

Cases Cited:
State v Peter Lare [ 2004] PGNC 218; N2557
State v Kutetoa [2005] PGNC 137; N2814
State v JB [2007] PGNC 66; N3224
State v Jonathan [2008] PGNC 31; N3315
State v Chadrol [2011] PGNC 211; N4648
Kumbamong v State [2008] PGSC 51; SC1017
Lawrence Simbe vs. The State [1994] PNGLR 38
Golu v The State [1979] PNGLR 653
Yalibakut v State [2006] PGSC 27; SC890
Hindemba v The State [1998] PGSC 48; SC593
Sabiu v State [2007] PGSC 24; SC866
Public Prosecutor v Hale [1998] PGSC 26; SC564
Tardrew, Public Prosecutor v [1986] PNGLR 91

Counsel:
J. Sausoruo & L. Rangan, for the State
J. Huekwahin, for the Defendant

SENTENCE

08^th May 2024

1. MIVIRI J: This is the sentence of a 23-year-old man who pleaded guilty to having consensual intercourse twice with his girlfriend who was 15 years old.
   
2. On the 16^th December 2023 between 12pm to 1pm at Nguvalian village 15 years old Fredlyne Rutan got her mother’s stuff from one Alma who had come back from Kokopo town. She went to their house to leave them. She left them and came out of the house and saw the accused Jerry Rumet who was standing in their yard. He told her to go and wait for him at the Men’s house (haus man). She went to the house man with the accused following her there. There the Accused sexually penetrated her. She was seen by a cousin who reported to her mother. The matter was reported to Police and the Accused was apprehended and charged with the offence pursuant to section 229A of the Criminal Code Act. That by the insertion of his penis into her vagina when she was 15 years old the Accused contravened section 229A Sexual Penetration of a child of the Criminal Code Act.
   
3. His conduct is caught out by the law because she is 15 years old having been born on 15^th March 2008 breaching that section which is in the following terms: -
   

“(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.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

4. The facts on arraignment lead that the prisoner could be sentenced to 25 years imprisonment given. Because there are no aggravating features pleaded in the indictment against the prisoner. He is 23 years old a first offender unemployed but educated to grade 8 supported by his parents also of that village Nguvalian. He is the last born in a family of four siblings. In allocutus he expressed remorse for the offence to God, family, and the complainant. Coupled with his guilty plea it is genuine remorse and intent to amend and to start a fresh. The sentence will reflect this fact as it has saved the complainant from coming into court and recounting the details of that intimacy between them. Here it is relevant that the age gap is 8 years difference between both. And it is two acts of sexual penetration clearly consensual between the girl and the prisoner. This is established by her evidence with the prisoner’s record of interview. A determinate term is in order against the prisoner. Certainly not 25 years because the girl also bears responsibility for the way that the prisoner acted towards her leading to the offence. And this is clearly ascertained in the way that the matter came out into open. A relative had caught both in the act who alerted the mother of the girl.
   
5. What is material to note is that relationship in this way will lead to pregnancy if not allowed checks as is the case here. Children female under aged must be protected from themselves. The sexual relationship has consequences that will flow especially of a girl as here who is only 15 years old. Also, the prisoner is 23 years old unemployed supported by his own parents in that village. It makes sense to give effect to section 229A and related provisions of the Code to keep this behaviour in check and control. Customarily the relationship between a girl and boy tying down must follow customary rites and Christian rites and teachings. The law must be followed to see out relationship as is the case here. The family must be at one to see that relationship. That in my view is the purpose of the Criminal Code dealing with this behaviour. Therefore, although consensual it is a serious matter given.
   
6. The facts are not likened to a case of an abuse that occurs where the assailant is taking advantage of the youthfulness and innocence of the victim as in State v Peter Lare [2004] PGNC 218; N2557 (20^th May 2014), where 12 years IHL drawn out against a 40-year-old prisoner who pleaded guilty to sexual penetration of a 10-year-old girl repeatedly over time. Nor would it be similar to State v Kutetoa [2005] PGNC 137; N2814 (22 March 2005) a 39-year-old prisoner was sentenced to 17 years in jail for sexual penetration of a 10-year-old girl. He had pleaded guilty to the charge under section 229A of the Code. The lower the age the higher the sentence because a child does not know the consequences he or she takes in a sexual relationship. It is therefore upon the Court to protect children from themselves and adults who abuse them for their own personal sexual pleasure. This view is borne out before this court here in State v JB [2007] PGNC 66; N3224 (20 September 2007), he had persistently abused his 13 and 15 year-old daughters he was sentenced to 26 years IHL but reduced to 20 years on the totality principle. In the State v Jonathan [2008] PGNC 31; N3315 (12 March 2008) persistent sexual abuse of a 13-year-old girl who became pregnant drew18 years IHL for persistent sexual abuse contrary to section 229D the penalty provision had the maximum sentence of life years similar to section 229A.
   
7. So, it is not a light matter. The facts here fit the scene set out in State v Chadrol [2011] PGNC 211; N4648 (23 May 2011) where this Court imposed 6 years imprisonment but wholly suspended that sentence on a probation order with conditions attaching. That was also a situation of a girl and boy friend situation between a 13 and half year-old girl and a 17-year-old boy who persisted in their relationship despite being told to stop. The law was resorted to leading to the charges that followed with the conviction and sentence. Sentencing in my view is not tied to a mathematical formular or tariff and range. The latter is relevant but does not lay out the must do. Because each will be dictated by its own facts and circumstances to arrive at a just and proportionate term due: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008) following Lawrence Simbe v The State [1994] PNGLR 38. The sentence must fit the offence Golu v The State [1979] PNGLR 653.
   
8. Here is a girlfriend boyfriend situation the girl is 15 years old; the boy is 23 years old. Should he be imprisoned for the two acts of sexual intercourse with the girl accepting that she was a willing partner in the crime. It would be lope sided to penalize with a long custodial term considering that there is no lingering effects of the acts upon her. The medical report does not disclose any injuries that will torment and linger. He is a first offender who has pleaded guilty saving her the embarrassing run in the Court had he pleaded not guilty. She has been saved. He is just coming off age. Leniency must be exercised whereas here a guilty plea is entered given all set out above: Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006), 17 years was reduced to 14 years for sexual penetration of a 11-year-old girl by a married man. That is not the case here. Both are single and friends.
   
9. It is not the same scene that is seen in Hindemba v The State [1998] PGSC 48; SC593 (27 October 1998) where the Supreme Court increased the initial sentence of 10 years to 15 years on a rape of a 10-year small child by a 20-year-old male armed with a knife. She suffered injuries to her vagina. Nor would it equate what was seen in Sabiu v State [2007] PGSC 24; SC866 (27 June 2007) prisoner appealed to the supreme court against 17 years IHL sentence imposed when he pleaded guilty to sexual penetration of a 6-year-old boy anally. The boy suffered bruising, bleeding, and pain as a consequence. He was the nephew of the prisoner, mother of the victim his sister. He explained that he committed the offence because he was not paid part of the bride price. In dismissing his appeal against sentence, the court remarked that the sentence was not out of reasonable proportion to the crime of sexual penetration of a minor under 12 years old.
   
10. There is no material in accordance with Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998) depicting what is set out in Tardrew, Public Prosecutor v [1986] PNGLR 91 for suspension of sentence which will have conditions for the same. No material has been placed before me to that effect. Therefore the prisoner will serve time in jail but at the lower end considering all set out above.
    
11. I consider that given all set out above the proportionate sentence would be 6 years imprisonment in hard Labour. And I so impose that upon the prisoner for the crime of sexual penetration of a minor under 16 contrary to section 229A (1) upon the prisoner.
    
12. Time that he has spent in custody of 4 months 3 weeks 1 day will be deducted forthwith. He will serve the balance of 5 years 7 months 6 days IHL in jail forthwith.
    

Orders Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant