N11173

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (JJ) NO. 443 OF 2023

THE STATE

V

JH (A JUVENILE)

GOROKA: KAUMI J
14 MARCH, 9 JULY 2024; 6 MARCH 2025
			
CRIMINAL LAW – Sentence – One count of Sexual Penetration – Plea of Guilty – Juvenile offender sexually penetrated a Four-year female relative resulting in physical injury to genitalia - Mitigating and aggravating factors considered – Serious Circumstances- Appropriate sentence – Nil suspension – Criminal Code Ch. 229A (1).

CRIMINAL LAW – Sentence – Juvenile – Application of Juvenile Justice Act 2014 - Interest and welfare of juvenile paramount – Guiding principles and principles of sentencing juveniles considered – Need for a juvenile to accept responsibility for offence –Deterrence Balanced with the need for rehabilitation and re-integration – Appropriate sentence – 5 years less time imposed in custody – Nil suspension – Juvenile Justice Act 2014. 

CRIMINAL LAW – Sentence – Juvenile -Pre-Sentence-Report – devoid of any Input from the juveniles’ community but no willingness to assist in any comprehensive plan to reintegrate the juvenile into his community - Pre-Sentence-Report devoid of a Comprehensive Plan of how to Reintegrate the Juvenile back into his community – Incumbent on Juvenile Officers to prepare a Comprehensive Plan to assist a Sentencing Court.   

The juvenile offender pleaded guilty to a count of sexual penetration of a four-year-old child and matter for sentence. 

Held: 
1. The objectives of the JJA are found under section 5. Section 5 subsection (e) provides that one of the objectives of this Act is to recognize and reinforce, by the Constitution, the role of the family unit as the fundamental basis of society and in particular the importance of involving parents, families, victims and communities in juvenile processes to encourage:

i.	the rehabilitation of juveniles who commit offences; and
ii.	the reintegration of juveniles who commit offences into the community.

2.	Pre-Sentence-Report is critical as it is the vehicle upon which the community’s input in the form of a comprehensive plan as to how the juvenile co-offenders would be reintegrated into their community is outlined and invaluable to the sentencing court. 
3. It is incumbent on Juvenile Officers to prepare such a Comprehensive Plan to assist a Sentencing Court.   

Cases cited
Goli Golu v The State [1979] PNGLR 653
Ure Hane v The State [1984] PNGLR 105
State v Thomas Pipon [1988-89] PNGLR 179
Lawrence Simbe v The State [1994] PNGLR 38
Acting Public Prosecutor v. Don Hale (1998) SC564
The State v. Irox Winston (N2347) [2003] Kandakasi J
Edmund Gima v The State & Siune Arnold v The State (03/10/03) SC730
State v Iori Veraga (2005) N2921. 
Saperus Yalibakut v The State (2006) SC890
Steven Loke Ume & others v The State (2006) SC836
State v Jonathan Gabriel [2006] N5576
Sabiu v The State (2007) SC866
The State v JG (2014) N5576
Toliken, J in The State vs FT (A Juvenile) [2016] PGNC 238; N6435
The State v DM (2018) N7747 
State v Kiku Mercy Sang [2018] N7419
The State vs DP (Juvenile) N9270 CR937 of 2019 (22nd April 2020) Salika CJ
The State vs SE (A Juvenile) N7971 CR JJ 1385 of 2019. Berrigan. J
The State vs IW (A Juvenile) CR No. 223 of 2021/ N9118 (3rd September 2021) Kuvi AJ (as she then was)
The State vs AWP (A Juvenile) (2021) CR 29 (JJ) unreported 4th September 2021. Ganaii, AJ
The State v ES (A Juvenile) JJ 36,39 & 42 of 2022 (Unrept), DS (A JUVENILE) JJ 35,38 & 41 of 2022 (Unrept), IS (A JUVENILE) JJ 34,37 & 40 of 2022 (Unrept) Kaumi. J

Counsel
E Nema-Kale, for the State      
C Bomai, for the prisoner

JUDGMENT ON SENTENCE

1	KAUMI. J: An indictment was presented on 14 March 2024, charging the juvenile offender, JH, with one count of Sexual Penetration of a child contrary to Section 229A (1) of the Criminal Code (Sexual Offences/Crimes Against Children) Act.

2	The juvenile offender pleaded guilty to the charge, and the court confirmed his plea after reading the court depositions. Allocutus was administered to the juvenile, and the matter was then adjourned for the presentation of the Pre-Sentence Report and Submissions on Sentence.

3	I received the Pre-Sentence Report and Submissions on Sentence.

4	I will now sentence the juvenile.

BRIEF FACTS

5	The juvenile pleaded guilty to the following facts.

6	On Monday 21 November 2022, the juvenile sexually penetrated a female child namely, Soi Yafe then aged 4 years old in their dwelling house at Genoka block in Goroka, Eastern Highlands Province. The juvenile and the victim child girl are cousins, and both live in the same family home in Genoka block in Goroka town.

7	At about 3:30 pm the same day, the juvenile was with the victim child while their aunt was busy doing laundry. The juvenile lured the victim child into the boys' room and removed her clothes. He then laid her on the bed and sexually penetrated her by inserting his penis into her vagina.

8	The victim child felt pain and started to cry. Still, the juvenile closed her mouth using a blanket and continued to push his penis into her vagina and only stopped doing so when he saw heavy bleeding coming from the child victim’s vagina. 

9	At that moment their aunt came into the house after completing the laundry and found the victim child lying on the bed in the boys’ room whilst the juvenile was lying face down on the floor. The aunt called the victim child out of the room and asked her about the blood stains on her clothes and she told the aunt what the juvenile had done to her. They later reported the matter to the victim child's mother who immediately reported it to police and the juvenile was apprehended and brought to the police station where he was arrested and formally charged. 

ISSUE

10	 The relevant issue is what is an appropriate sentence for the juvenile given the circumstances in the matter and the relevant law applicable to juvenile offenders.

THE OFFENCE

11	Section 229A. SEXUAL PENETRATION

(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 liable, subject to section 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 liable subject to section 19 to imprisonment for life.

GENERAL PRINCIPLES OF SENTENCING

12	The maximum penalties are usually reserved for the worst offences in the category of offences the prisoner is charged with. See Goli Golu v The State (1979) PNGLR 653 and Ure Hane v The State (1984) PNGLR 105.

13	When determining a sentence every case should be decided upon on its own peculiar facts and circumstances. Lawrence Simbe v The State (1994) PNGLR 38.

14	The Supreme Court in Steven Loke Ume & others v The State (2006) SC836, the Supreme Court said:

“In exercising of its sentencing discretion, the Court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors. The Court must then balance these factors and determine the punishment which fits the particular crime”. 
15	The Supreme Court in Steven Loke Ume & Ors v The State (supra) defined what extenuating factors are and said:

“the particular circumstances in which the offence was committed that have the effect or diminishing the gravity of an offence.”
PRINCIPLES APPLICABLE IN THE SENTENCING OF JUVENILES – JUVENILE JUSTICE ACT 2014

16	This matter involves juvenile offenders and Papua New Guinea as a signatory to the United Nations Convention on the Rights of a Child (UNCRC) fulfilled its international obligation by legislating domestically.
 
17	Article 37 (b) of the United Nations Convention on the Rights of a Child (UNCRC) requires that where a child is imprisoned, the imprisonment must be by the law and must be for the shortest appropriate period, so Papua New Guinea in compliance with its said international obligation in 2014, legislated an enabling piece of legislation, the Juvenile Justice Act 2014.

18	Since the enactment of the Juvenile Justice Act 2014 (JJA) the courts of this jurisdiction have discussed its provisions and applied them in sentencing of juveniles. I have had the benefit of reading some of them and am indebted to the judges who have laboured to thoroughly discuss them I note in particular Chief Justice Salika in The State v DP (Juvenile) N9270 CR937 of 2019 (22nd April 2020); Toliken J in The State v FT (A Juvenile) [2016] PGNC 238; N6435 (15th April 2016); Berrigan J in The State v SE (A Juvenile) N7971 CR JJ 1385 of 2019; Wawun-Kuvi AJ in The State v IW (A Juvenile) CR No. 223 of 2021/ N9118 (3rd September 2021) and Ganaii AJ in The State v AWP (A Juvenile) (2021) CR 29 (JJ) unreported 4th September 2021.

19	I adopt my summary of my discussions on the relevant provisions of the JJA in the matters of The State v ES (A JUVENILE) JJ 36, 39 & 42 of 2022 (Unrept), DS (A JUVENILE) JJ 35, 38 & 41 of 2022 (Unrept) and IS (A JUVENILE) JJ 343, 37 & 40 of 2022 (Unrept) at paragraph 22. I will only reproduce certain pertinent parts as follows: 

•	a. The objectives of the JJA are found under section 5. Section 5 subsection (e) provides that one of the objectives of this Act is to recognize and reinforce, by the Constitution, the role of the family unit as the fundamental basis of society and in particular the importance of involving parents, families, victims and communities in juvenile processes to encourage – 
i	the rehabilitation of juveniles who commit offences; and

ii	the reintegration of juveniles who commit offences into the community.
•	d. Section 76 provides for the purposes and principles of sentencing involving a juvenile. I note section 76 (1) (a): “encourage the juvenile to understand the consequences of and be accountable for the harm caused by his or her actions”;…section 76 (1) (c): “promote the rehabilitation and reintegration of the juvenile into the family and community”; and section 76 (1) (d): “ensure protection of the public”…Lastly, section 76 (f) stipulates that deprivation of liberty shall be used only as a measure of last resort, for the shortest period necessary to achieve the purposes set out in Subsection (1).
•	f. Under section 79, a court shall, before imposing sentence, order a juvenile officer to prepare a written pre-sentence report in respect of the juvenile.
•	g. The sentencing options available to a sentencing court are provided for by section 80. I note in particular that section 80 (m), order that the juvenile be committed to the care of the Director, 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. 
•	h. Section 81 is very clear that Juveniles may only be given a custodial sentence if the court considers that there are no reasonable alternatives or a combination of alternatives available to the court including committing a juvenile to a Juvenile Institution.  Should the court consider sending a juvenile to a Corrective Institution, it must first be satisfied that it has separate facilities for juveniles. 

ANTECEDENT REPORTS

20	 The Antecedent Report provided to the Court by the State states that the juvenile does not have any prior convictions.

PERSONAL ANTECEDENTS

•	Jorike Hanma - JH – is 15 years old and comes from Henagaru village, Okapa and resides at Mambu, Okapa Block, Faniufa area, Goroka, Eastern Highlands Province and was doing Grade six (6) at the Sacred Heart Primary School in Faniufa, Goroka last year. You are a first-time offender. You were 14 years old at the time of the offence.

ALLOCATUS

21	The gist of what the juvenile said in response when I administered allocutus to him was that he was sorry for what he had done to the child victim and apologized to the court, the child victim and her family.

SUBMISSIONS

DEFENCE

22	The gist of Ms Bomai’s submission for the juvenile was that his case was not the worst of its kind and that it should be assessed on its merits taking into account the mitigating and aggravating factors. She stressed the offender was a juvenile so the Court should consider the intent of the Juvenile Justice Act on the type of punishment to be imposed. Whilst acknowledging the seriousness and prevalence as reflected by the penalty, she further submitted that the court should explore alternative forms of punishment which would encourage rehabilitation, integration and punishment of the juvenile, bearing in mind the purposes and principles of sentencing a juvenile as encompassed in Part VII of the JJA. Concerning the sentence, she submitted for a sentence between the range of 2 to 6 years as appropriate and that it be suspended either wholly or partially with conditions subject to the court’s sentencing discretion.

SUBMISSION BY THE STATE

23	Mrs. Nema-Kale of counsel on behalf of the State submitted that in recognition of the seriousness of the offence, a head sentence of 6 years imprisonment less pre-trial custody period would most likely promote his rehabilitation and reintegration into society. In the best interest of the juvenile, partial suspension of sentence with the juvenile placed on a good behaviour bond with strict conditions would serve both the deterrent and punitive aspects of punishment.

PRE-SENTENCE REPORT

24	 The Pre-Sentence Report of the juvenile assesses him as a suitable candidate for probation supervision.
 
25	I will discuss this aspect later.

VICTIM IMPACT STATEMENT

26	 The child victim’s parents' attitude towards this matter comes as no surprise. It is well noted that they have already suffered the experience of an elder sister of the victim suffering a similar fate of sexual abuse, the perpetrator of which is serving a jail term at the Bihute Goal. They will not accept any form of compensation from the juvenile and have requested that he be given a term of imprisonment as a deterrent to other like-minded youths and adults. However, I only note this in passing as it has no bearing or influence on my sentencing discretion.  

OTHER MATTERS OF FACT

27	The offender pleaded guilty so I will give him the benefit of the doubt on mitigating matters raised in the committal depositions, the allocutus and submissions that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890.

WHAT IS THE MAXIMUM PENALTY?

28	 The penalty prescribed for Section 229A Subsection (1) offence carries a maximum penalty of imprisonment for a term not exceeding 25 years subject to Subsection (2) and (3). 

29	Section 229A of the Criminal Code (Sexual Offences/Crimes Against Children) Act, Subsection (2) provides that, 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. Subsection (3) provides that, 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) if guilty of a crime, and is liable subject to section 19 to imprisonment for life.

WHAT IS THE STARTING POINT?

30	The proper starting point for the offence the juvenile has pleaded guilty to is 15 years. Sabiu v The State (2007) SC866. Having referred to this starting point, I remind myself of the case of Thress Kumbamong v The State in which the Supreme Court held that the sentencing discretion of the court as per section 19 of the Criminal Code remains unfettered.

WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCE?

31	I will now consider the sentencing trends for Sexual Penetration of a child contrary to section 229A (1) by juvenile offenders.

NATIONAL COURT SENTENCES IN SIMILAR OFFENCES

32	In the case of Sabiu v The State (2007) SC866, the Supreme Court held that a starting point for sentencing in cases of sexual penetration of child victims under the age of 12 is 15 years imprisonment.

33	Salika. CJ in The State v DP (Juvenile) N9270 CR937 of 2019 (22nd April 2020) when he was sentenced a juvenile convicting of sexually penetrating a seven-year-old child contrary to section 229B to 6 years imprisonment.

34	In the case of State v Jonathan Gabriel [2006] N5576, the offender pleaded guilty to sexually penetrating a three-year-old boy, a close relative, an offence he committed when he was 15 years old. The victim’s parents were prepared to accept compensation and engage in customary reconciliation with the offender. A sentence of four years was imposed. The pre-sentence period in custody was deducted and, because of the willingness of the offender’s family and victim’s family, who are related, to seriously attempt a customary reconciliation of the matter, the balance of the sentence was suspended subject to payment of K2,000.00 compensation and a formal reconciliation, which is to occur within six months after release from custody. 

35	The State v DM (2018) N7747; the accused was charged with one count of sexual penetration of a girl under the age of 16 years under section 229A (1) (2) of the Criminal Code Act (as amended). The juvenile aged 15 years 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. 

36	The State v JG (2014) N5576, a matter dealt with before the Juvenile Justice Act, in which the juvenile, aged 15 years 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.

37	In State v Kiku Mercy Sang [2018] N7419, The Prisoner Kiku Mercy Sang pleaded guilty to one count of Sexual Penetration of a child under 16 years old contrary to Section 229A of the Criminal Code Act Ch. No. 262. The victim was 14 years old at the time of the offence. The Court held that:

i	The offence of sexual penetration involving underaged children is not only unlawful but is also against the societal norms on accepted standard or morality.
ii	Sexual penetration of underage children and other sexual offences of similar nature is becoming too prevalent in the country in recent times and the Court must impose the type of sentence that has a deterrent effect.
iii	The offender must be given the benefit of any reasonable doubt if there exist contentious facts alleging that sexual intercourse was initiated by the victim in the absence of any evidence to the contrary that may be favourable to the accused.
iv	The big age difference between the offender and the victim and the continued sexual penetration of a child over a period of time makes this an aggravated sexual penetration.

The prisoner in this case was sentenced to 6 years imprisonment less the pre-trial custody period. Partial suspension with prisoner placed on a good behaviour bond with strict conditions.

38	All the above cases except one demonstrate that both the Supreme and National Courts view the offence of Sexual Penetration of children under the age of 12 years by juveniles very seriously.

39	Despite what the Supreme Court set in Sabiu v The State (supra) as the starting point I note that the courts’ sentence range for Sexual Penetration of children under the age of 12 years by juveniles is generally between 4 to 6 years with full or partial suspension conditionally. In Sabiu v The State (supra) the offender was an adult not a juvenile and that in my view is an important difference that must be reflected in the starting point. So, it follows logically that the starting point in this case must be lower- and 10-years imprisonment is a proper starting point. Indeed Section 77(2) of the JJA provides that, 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. s. 76(1)(b) of the Act.

WHAT IS THE HEAD SENTENCE?

40	To arrive at a head sentence for the offence the offender pleaded guilty to, I must consider the particular circumstances in which he committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.

Mitigating Factors

41	The mitigating factors are as follows:

A	The juvenile pleaded guilty to the charge and saved the Court’s time and the State’s resources in running a trial that involved a child victim (substantial factor). B. He was a first-time offender (substantial factor). C. The offender expressed some remorse.

Aggravating Factors

42	I find the following as the aggravating factors:

A	The offence of Sexual Penetration of children under the age of 12 years by juveniles is prevalent throughout the length and breadth of this nation. It is occurring in urban centres and rural ones as well and one reason why such offending continues to occur is the payment of compensation by the offender’s family or clan to the victim’s family or clan to prevent outbreak of violence, while the payment of compensation is an important part of Papua New Guinea culture as it restores peace and harmony in the community, where does this place the victim child, as she or he will suffer some form of emotional and psychological trauma in future. It seems to me that in such incidences of child sexual abuse, the interest of the clan or family looms higher and stronger than that of the most vulnerable, the victim child. The reputation and honour of the juvenile and his family are paramount to the victim child’s interest. Owing to its pervasiveness this offence in this context, in my view continues to occur at an unabated rate. I pause here to ask the obvious, is the Juvenile Justice Act serving both the interests of the juveniles and the victim child, having read the provisions of this legislation, it seems to be lopsided towards the juvenile offender and the victim child has no protection under it, in my view this inter alia has seriously contributed to the increase of offending for this particular pervasive form of sexual abuse. This demands a deterrent sentence be imposed to deter likely-minded juveniles and adults in the community. This is a substantial aggravating factor. 

B	The victim child suffered a physical injury to her genitalia. This is a substantial aggravating factor.

C	The offence was premeditated. 
 
D	The offence was committed deliberately and callously. 

E	The offence has caused the father of the victim child to pay compensation to his male relatives to mollify what was perpetrated on her by the juvenile his relative, something I find to be very odd and weird. Now where is the justice for the victim child if even her biological father is doing weird things like this? Even the juvenile’s father says in his Pre-Sentence Report that he paid compensation to his own children over the incident. I was not shown any evidence of this being the accepted customary practise in the area of both the juvenile and the victim child’s father’s area.

F	The age difference between the juvenile and victim child was great, 9 years. This is a substantial aggravating factor.

G. The juvenile and his family failed to take the opportunity to make peace or pay compensation. The father of the victim child said in his comments in the juvenile’s PSR that his family received no compensation from the juvenile’s family. This is contrary to what the juvenile’s father attempted to put forward which I do not believe what he said as he is not working and relies on one of his son’s wages for sustenance.

43	 I add that given that the circumstances in this matter are very serious (specifically, the victim child was a 4-year-old child, a toddler) I find it hard to exercise any leniency towards the juvenile, but for two factors, his plea of guilt which I consider to be a substantial mitigating factor and his lack of prior convictions. All said only a certain amount of leniency shall be accorded to him. 

44	I consider the juvenile’s expressions of remorse to be self-serving and do not place much weight on it as nothing tangible has been done in the intervening years since 21 November 2022 to reconcile with the victim through compensation.

45	The juvenile has committed a very serious crime, the punishment for which is life imprisonment subject to s.19 of the Code.  The commission of the offence was not a chance opportunity one or a spur-of-the-moment one, rather it was calculated and planned and committed deliberately when the vulnerability of the victim child was at its peak, when she was all alone in the family home. When the four-year-old victim child should have been safe in her own home she was subjected to penile sexual abuse.

46	In the instant matter the juvenile knew exactly what he was doing and the consequences thereof when he enticed the victim child into the family house with the use of a toy. And now the law says I must consider as a paramount interest the well-being of the juvenile, and that is all well and good, but I venture to ask the obvious, what about the victim. It would seem the law has given far too many liberties to today’s youthful and juvenile offenders seemingly rewarding this category of offenders for sexually penetrating children under the age of 12 years, in this instance a toddler of 4 years. I adopt what I said in an earlier case in 2024 involving juveniles,  The State v ES (A JUVENILE) JJ 36, 39 & 42 of 2022 (Unrept), DS (A JUVENILE) JJ 35, 38 & 41 of 2022 (Unrept) and IS (A JUVENILE) JJ 343, 37 & 40 of 2022 (Unrept) at paragraph 22, “THE RIGHTS OF THE PERPETRATORS ARE GIVEN PROMINENCE OVER THAT OF THE OPPRESSED VICTIMS DESPITE OUR CONSTITUTION GIVING EQUAL RIGHTS AND PROTECTIONS TO ALL CITIZENS AND NON-CITIZENS ALIKE. I ASK WHERE THE JUSTICE IS IN ALL OF THIS. IN THE INSTANT MATTER, THE FULL COMPLIANCE WITH THE LAW TO THE HILT IS LEADING TO AN ABSURDITY IF NOT BORDERING ON A TRAVESTY OF JUSTICE. UNDER CERTAIN CIRCUMSTANCES, WHAT IS LAWFUL CERTAINLY DOES NOT EQUATE WITH WHAT IS JUST”.

47	Salika. CJ in The State v DP (Juvenile) N9270 CR937 of 2019 (22nd April 2020) made what I consider to be very pertinent and necessary comments which I strongly endorse when he was sentencing a juvenile convicting of sexually penetrating a seven-year-old child contrary to section 229B. I understand fully well that the circumstances of the offence in that matter are different from the immediate one in that it involved persistent sexual assaults of a seven-year female victim child,  however what matters and is relevant is the wisdom in his comments which go to the heart of the matter and in my view applicable regardless of the offence or its circumstances where it involves a juvenile, “To me, with respect the welfare and interest of the victim appears to be the least of the concerns of the law and the State.  After having gone through the indignity of the persistent sexual assaults, the victim is immediately forgotten but the offender is given all the assistance by the law and the State to go back to his family and pretend nothing serious happened and that all is good and that he can enjoy life”.

48	I am fortified by what the Chief Justice Salika said above.

49	There are no extenuating circumstances in this matter.

50	The victim child in this matter was only 4 years old and not yet physically or mentally mature by any measure for such a sexual encounter and the injury she suffered to her genitalia bears testimony to this, and this makes this particular offending very serious and places it near the worst category of offending for this type of offence. 

51	The PSR has shown that this juvenile or his relatives do not have the capacity let alone the money to compensate the victim child and this reality leaves me with not much of an alternative.

52	The juvenile committed the offence, and his punishment must befit the crime he committed.

53	Having made the above comments, I consider the aggravating considerations cause the mitigating ones to pale into insignificance.

54	The head sentence is 5 years imprisonment with light labour.

SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

55	Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

“There may be deducted from the length, or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed”.

56	This provision allows the court discretion to decide whether to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.

57	 The juvenile has spent 20 days in pre-trial custody.

58	 So, it is proper to deduct this period spent in pre-trial custody.

59	The sentence for JH is now 4 years 11 months 10 days. 

SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

60	In Acting Public Prosecutor v. Don Hale (1998) SC564, the Supreme Court said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. The Supreme Court in that case said: 

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So, community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

61	In The State v. Irox Winston (N2347) [2003] Kandakasi.J going by the authority of the Don Hale case held that: 

“...If the Court is minded to give a lenient sentence because of tender age or other good mitigating factors, it must first have before it a pre-sentence report supporting such a sentence. This is because criminal sentencing is a community response to an offence and has to reflect the community’s view of the kind of sentence an offender should receive. Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court cannot arrive at such a sentence."

62	The above views were endorsed by the Supreme Court in two subsequent judgments in Edmund Gima v The State & Siune Arnold v The State (2003) SC730.
 
63	In considering whether or not to suspend the whole or part of the sentence I bear in mind what section 5 of the JJA says:

64	I note in this matter that besides one father, the victim child’s father and juvenile’s father, brother and guardian and a community leader, there has been no other input whatsoever from the community (say from a pastor, village court magistrate etc) the juvenile comes from or to which he would return in the event the court was to impose a non-custodial term in the form of probation. The gist of the community leader, Mr. Ronnie Mahabi from the Mambu community in the Pre-Sentence Report is that he has noticed the juvenile to be an introvert, and that is the total extent of his commentary, there is nothing whatsoever on what matters and that is whether he would be prepared to supervise and participate in any program, if any, to assist to rehabilitate and reintegrate the juvenile back into his community at the Mambu settlement. Be that as it may the Pre-Sentence-Report is critical as it is the vehicle upon which the community’s input in the form of a comprehensive plan as to how the juvenile co-offender would be reintegrated into their community is outlined and invaluable to the sentencing court. The juvenile’s PSR is devoid of a comprehensive plan as to how the juvenile would be reintegrated into his community and this is vitally important to assist this sentencing court in formulating an appropriate sentence. Therefore, I cannot see how the juvenile may be assisted to become a good, responsible and contributing member of his community and society at large. This is what the spirit and intent of the JJA is all about, assisting juveniles who find themselves in such predicaments and if I may add, matters are not helped at all by the neglect by the very people who are appointed by law to assist juveniles, Juvenile Justice Officers.

65	With respect, the days of a mere recommendation by Juvenile officers that a juvenile is a good candidate for a non-custodial sentence in my view is no longer viable given the prevalence of this offence. In my view, it is incumbent upon Juvenile Officers to go that extra yard to give effect to the dictates of the spirit and intent of the Juvenile Justice Act as per section 5 and assist a sentencing court by preparing and providing to it a comprehensive plan as to how the juvenile would be integrated into his community. Simply put, a Juvenile officer can’t just simply recommend probation in such circumstances and not give effect to such a recommendation by not providing a comprehensive plan. In my view such a devoid is tantamount to a dereliction of duty, suffice to say injustice to the juvenile.

66	I have already considered the views of the parents of the victim child, and it is the view of any parent of a child victim of such a tender age of 4 years old, especially a victim of unlawful penile sexual penetration. The victim child has suffered such predatory and sexually deviant abuse, that they will not accept compensation in any way or form from the juvenile.

67	I do not think that suspension of any sort would serve the interests of justice, the juvenile, or the victim. There is no evidence before me to show that any suspension would promote the personal deterrence, reformation, or rehabilitation of the juvenile.

68	The circumstances of this matter dictate that the severity of the punishment be proportionate to the seriousness of the crime and the notion of sentencing of retribution comes to prominence here. Secondly, deterrence must be reflected in the sentence to other like-minded juveniles and thirdly, regarding the rehabilitative aspect of sentencing, the sentence should be long enough for the juvenile to reflect upon his actions and importantly upon the suffering he has perpetrated upon the victim, so in the process it allows for his rehabilitation.

69	The circumstances of this case are serious but do not fall into the worst category of cases for this offence.

70	Brunton AJ, in State v Thomas Pipon (1988-89) PNGLR 179, when considering an appropriate sentence for the offence under s213 of the Criminal Code Act (defilement of girls under 12 years) said this:

1	Defilement is not just a repugnant, offensive and unnatural offence against a particular child, but maybe also seen as part of a wider oppressive structure.  Sentencing policy needs not only “to protect the public and in particular, “young girls”, but also to address the offence in the social context.
2	Because the offence involves unlawful sexual intercourse and a maximum term of life imprisonment, the principles of sentencing for the offence of rape should be applied.  This is particularly to where consent is not present.
3	On a plea of not guilty where the accused is mature and there are no aggravating or mitigating circumstances, a sentence of five years should be taken as the starting point.
4	Where the age gap between the victim and accused is narrow, a sentence appropriate to a juvenile offender may be appropriate.
5	The actual sentence imposed may vary depending on the facts such as the frequency of the acts, the duration of the relationship and whether or not any permanent physical or psychological damage has been done to the victim or the family.
6	The sentence may be increased for aggravating circumstances such as offences committed over a long period of time, offences where the accused is pathologically driven to sex with young children resulting in pregnancy, the infliction of sexually transmitted diseases  and offences involving  very young children; any of the above in combination with the status of  the accused as a person in loco parents to a child, or to whom the child gives the complete trust, acts of group sex involving children and a number of adults; and organized  child prostitution (including child conspirators, aiders, abettors and counsellors.)

71	Sakora J in the State v Iori Veraga (2005) N2921 said:

“Purposes for which a sentence may be imposed can be summarized as follows;  
•	to punish the offender to an extent or in a way that is just in all the circumstances, the retributive purpose, justified by the fact that he has done wrong and deserves to be punished for it; or
•	Because punishment will ensure that he and others do not commit offences like in the future (individual and general deterrence); or
•	Because he will learn from his punishment the folly of his way (reformation); or
•	Simply to keep him out of harm’s way, in confinement, out of circulation, as it were (for the protection of the public).

72	Bearing in mind what the courts said in the two above cited cases, the reasons as mentioned earlier and the circumstances of this case, there should be no suspension. Otherwise, his respective plea of guilt and other mitigating factors have been appropriately taken into consideration by being factored into the head sentence.

73	Therefore, the sentence I impose will serve the notions of sentencing of Retribution, Deterrence and Rehabilitation.

74	The juvenile is sentenced to five years imprisonment.

75	The head sentence of the juvenile is not suspended in any manner.

76	His prison term is to be served at a Juvenile Remand Centre to be decided by the Director of Juvenile Services. It will be under the supervision of Juvenile Justice Officers for the term of his imprisonment.

SENTENCE

77	The orders of the Court in respect of JH are as follows:

Length of Sentence imposed	5 years	
Pre-sentence period to be deducted	 20 days	
Resultant length of sentence to be served 	 4 years 11 months 10 days	
Amount of sentence to be suspended	NIL	
Time to be served in custody	4 years 11 months 10 days	
Bail	Nil 	

78	Sentence accordingly.

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