N2336

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 100 OF 2000

THE STATE

v.

KENNETH PETER

LAE: INJIA, J.
2002: APRIL 11

Criminal Law – Sentence – Unlawful carnal knowledge of 13 year old school girl (aged 16 years at the time of trial) by 19 year old man – Appropriateness of non-custodial sentence – Appropriateness of Compensation order – Accused Sentenced to 21/2 years – Sentence wholly suspended on condition he pays K5,000.00 compensation to victim within 18 months – Funds to be held in trust and invested by the Registrar until victim attains the age of maturity (18 years old) – Criminal Code (Ch. No. 262), S.216 – Criminal Law (Compensation Act) 1991, S.2.

Cases cited:
Pike Dambe v. Augustine Peni & The State [1993] PNGLR 4.
Samuel Era v. Susan Paru [1994] PNGLR 598.
Lawrence Hindemba v. The State SC593 (1998).
The State v. William Muma [1995] PNGLR 161.

Counsel:
Ms M. Zurenuoc for the State
Mrs. A. Raymond for the accused

11 April, 2002

INJIA, J.: The prisoner pleaded guilty to a charge that on 3/10/99, at Bulolo he had unlawful carnal knowledge of Miss SF (named "victim"), a girl under the age of 16 years, contrary to S.216 of the Criminal Code. At that time she was aged 13 years old and going her 4th Grade at Primary School. Now she is aged 16 years old and she is doing her Grade 7.

The prisoner was at that time aged about 19 years old and single. He is now between 21 – 22 years old and still single. He is educated up to Grade 10 in 1996 and has been employed by PNG Forest in 1997. This year, he resigned his job and is attending Mt. Hagen Technical College studying to be a heavy machinery operator. The prisoner and his parents reside at Kapriman Compound at Bulolo Township but they originally come from Kapriman village, Angoram in the East Sepik Province. The victim and her family also come from Kapriman village, Angoram. They reside at Kapriman compound as well. The two families have known each other for a long time. The victim describes her relationship with the accused as "us brothers."

On 3/10/99 at about 7.00p.m., the victim and her small sister and brother were alone in her house. The prisoner came and signalled her to come outside and asked her to accompany him to find some "ice block." She agreed and they went out. On the way, the prisoner pulled her to a pineapple garden, laid her on the ground, undressed her and had sexual intercourse with her. The accused covered her mouth with his hand and prevented her from shouting. In the course of the intercourse, she felt pain and "cried slowly." Then he left her there after hearing her mother call out for her. Her father got angry after finding out she had sex with him and belted her up.

The accused in his Record of Interview says the sexual intercourse was voluntary. They kissed and cuddled each other before they had sex and she undressed herself. He says he was something like her "secret admirer". This is not denied by the victim.

Also in his ROI, the accused says he only used his fingers because he tried to have intercourse but "cannot and she said not to that to." But he was arraigned on actual sexual intercourse with her and he pleaded guilty to the charge on that basis. As this version has not been disputed at any stage of the trial, I sentence him on that basis.

The medical evidence is consistent with actual carnal knowledge. It shows that there was actual penetration of the vagina by a penis. This finding was based on bleeding in her vagina due to torn hymen. Preliminary tests showed negative sperm presence.

The prisoner expressed remorse in open Court and asked for a non-custodial sentence to enable him to continue his education. He also asked for a chance to be given to pay compensation of K5,000.00 within 18 months. The victim and her relatives who were present in Court spoke through the State Prosecutor. They agreed to accept the compensation offered. I indicated I would have to consider this request in the light of all other factors and adjourned the matter to today for sentence.

The payment of compensation for all kinds of offences as a form of punishment under our penal laws is permitted by the Criminal Law (Compensation) Act 1991. In deciding whether compensation is appropriate in a particular case, the Court is required to take into account the following factors:-

"(a)	the nature and seriousness of the offence;
(b)	the degree and nature of any personal injury or damage to property suffered by any person as a result of the commission of the offence;
(c)	any factors regarding the commission of the offence or the offender’s attitude which may be considered in mitigation or aggravation of the punishment;
(d)	any relevant custom regarding compensation, including but not limited to—
(i)	any custom regarding the nature, the amount, the method of payment and the appropriate person or persons to be paid the compensation; and
(ii)	any custom which relates the amount of compensation to the age or life expectancy of the person suffering injury or loss;
(e)	the information provided in the means assessment report, including any recommendations made by the Chief Probation Officer in the means report;
(f)	any other relevant matter." (see S.3(1)).

In considering a matter under this section, a court is not bound to apply the technical rules of evidence but may act on such information as is available to it. (see Section 3(2)). I consider each of the factors listed under S.3(1) as follows:-

(a)	The nature and seriousness of the offence.

In considering the accused’s request, I bear in mind the seriousness of the offence. The offence carries a maximum punishment of 5 years imprisonment. It is a serious offence and it is also prevalent in this country. This laws seeks to protect young under-age girls from being physically hurt, sexually exploited and morally corrupted by men whose only desire is to satisfy their lust for sex. A strong deterrent and punitive sentence in the form of custodial sentence is usually imposed by the Courts. The sexual exploitation of young school children by men have attracted severe punishment: see Lawrence Hindemba v. The State SC593 (1998).

(b)	Personal injury to victim.

The victim sustained vaginal injuries. She suffered some pain and discomfort. She was also belted up by her father and was therefore subjected to further physical harm. She lost her virginity prematurely and she was morally corrupted at an early age. Life will not be the same for her after this incident. She remains vulnerable to being subjected to shame and degradation in the future.

(c)	Offender’s attitude & mitigating and aggravating factors.

In favour of the accused, I take into account that he is a young man of prior good character. He is educated and has past job experience. He is presently undergoing studies at Mt. Hagen Technical College to improve his career. He is a first offender. He has willingly pleaded guilty to the charge, expressed genuine remorse and co-operated with the police in admitting the offence some 3 days later. He comes from a church background and I am sure he is genuinely prepared to make good the wrong he has done to the victim and her relatives, who are no strangers to him.

At the same time, I have considered the particular extenuating circumstances of the offence. I have considered the fact that minimal force was used by the accused, no other physical injury was inflicted on her, minimal threat or intimidation was used and no weapons were used. I have also considered the age difference of 6 years between. The difference is not that great between them. Both were in the teen age group.
As for the aggravating factors, there was breach of trust, physical vaginal injuries were inflicted, that she was morally corrupted and subjected to shame and ridicule by her own family and the stigma no doubt will remain with her for the rest of her life.

(d)	Customary compensation.

(i)	There is no evidence before me that compensation for crimes committed against individuals or the society at large is customary in the Angoram society where the prisoner and the victim come from. But I am certain compensation is practices widely throughout PNG societies and Angoram society should be no exception.
(ii)	I have always maintained a strong view that compensation, customary or otherwise, is not appropriate in a criminal case where the victims of crime, particularly sex-related offences, are young children: The State v. William Muma [1995] PNGLR 161. This is because children are incapable of making their own decision regarding compensation and if compensation is paid, they re incapable of appreciating its value and benefiting from it. Adult relatives and parents always tend to benefit from those payments when they are not themselves victim of the crime.
(iii)	But there may be those cases I suppose where the child may have reached a stage in her physical and mental development where she is able to make an independent decision about her future, appreciate the payment for her injuries and be able to directly benefit from the payment either then or in the future when she reaches the age of maturity. I would think such children may fall in the age group of say the teenage group, say between 13 – 17 years old. If a compensation order is made in respect of "children" in this age group, the Court should make sure that the interest of the child is protected by ensuring that the money is held in trust and invested by the Court and released directly to the child when she reaches age of maturity. The current age of maturity is the age of 18 years: Pike Dambe v. Augustine Peni & The State [1993] PNGLR 4. In a case where the child is aged between 7 years – 13 years, compensation should not be allowed except in very exceptional cases: see S.7 of the Criminal Code which fixes the age of 7 years as the age of criminal culpability. I would also say that no compensation should be allowed where the child is aged 1 – 7 years.
(iv)	In arriving at the decision in this present case, I bear in mind that the victim is now aged 16 years old. This is the age most statutes governing the welfare of children fixes as the age where a "child" is regarded as coming of age and the chain of parental dependence is broken and he/she is able to think and decide for himself or herself: see definition of "child" S.1 of the Deserted Wives and Children Act (Ch. 277), S.1 of Child Welfare Act (Ch. 276) and S.4 Infants Act (Ch. 278), which define child as someone under the age of 16 years. This is also the adult consenting age: see SS.216- 217 of the Criminal Code.
(v)	In the present case, the victim has now reached the age of 16 years. When she fell a victim to the crime, she was 13 years old. I am told that she has now made an independent decision to accept the compensation offered and I do not think it is improper in the particular circumstances of this case to not endorse her decision.
(vi)	I have also considered the principle that compensation should not be used to pay for crime. If this were allowed, the more affluent would escape punishment for their crimes by using money. This should not be allowed to happen.	In the present case, the prisoner and his family are low-income earning or ordinary village people living away from their local villages and trying to make a living. I am satisfied that their willingness to pay compensation is genuine-gesture for restoring their damaged past good relationship and not simply to enable the prisoner to escape punishment.
(vii)	I am also mindful that the two parties come from another province and are temporarily resident in Bulolo and that as a result of the crime, there was some animosity between them resulting in the destruction of substantial properties of the prisoner’s family at Bulolo. Now both parties are prepared to put aside their differences and make peace through the payment of compensation. In these circumstances, I am prepared to give effect to their wishes. I will do so by imposing a non-custodial sentence in which the payment of compensation will feature prominently.
(viii)	I am also aware that the amount of compensation offered by the prisoner is the maximum amount allowed by the Criminal Law (Compensation) Act 1991. There is no evidence before me as to any local custom on assessment of quantum of compensation for this kind of wrong. But I would think the invasion of an underage girl’s most intimate parts of her body by a person in a position of trust, and the resultant loss of a girl’s virginity, the trauma and pain she was subjected to at the time of the offence, the damage to her reputation and the same and embarrassment she will no doubt bear in the future, are things for which substantial compensation is payable in local customary societies in this country. In arriving at the exact figure, some assistance may be gained from the decision of Woods J. in Samuel Era v. Susan Paru [1994] PNGLR 598. In that case, Woods J. dismissed an appeal against a District court decision awarding K1,600.00 in a case where the relationships between two consenting adults resulted in pregnancy of the woman. She submitted herself to the man after he promised to marry her but he later deserted her. In the present case, this case involves an underage girl who was deprived of her virginity by a man known to her in breach of trust and her consent to sex was obtained by trickery or fraud. In these circumstances, I do not think the sum of K5,000.00 offered by the accused is unreasonable.

(e)	Means assessment report

A Means Assessment Report is required to be requested of the Probation Officer under S.4 but in the present case, I am satisfied that the prisoner is a man of sufficient means to satisfy any compensation order made and it is therefore not necessary for such report to be requested.

(f)	Any other matters.

Nil.

In the circumstances, I sentence the prisoner to 21/2 years imprisonment in hard labour. I suspend the whole of this sentence on the following conditions:-

(1)	He will pay K5,000.00 compensation to the victim within 18 months as follows:-

(a)	K2,000.00	forthwith.
(b)	K1,000.00	18/10/02.
(c)	K1,000.00	14/04/03.
(d)	K1,000.00	18/10/03.

(2)	This means that he shall commence serving his term today and be released only upon full payment of the initial payment of K2,000.00.
(3)	The moneys shall be paid to the Registrar of the National Court at Lae who shall then hold the money in trust and invest such money in an interest bearing deposit until the child attains the age of 18 years which anniversary shall be deemed to occur on the 11th of April, 2004.
(4)	The prisoner be placed on good behaviour bond for 2 years.
(5)	The Probation Office in Lae shall supervise compliance with the above conditions.
(6)	The matter is fixed for review on the 19/12/02 at 9.30a.m. before this Court. The prisoner shall attend Court on this date for the purpose of this review.
________________________________________________________________________
Lawyer for the State		:	Public Prosecutor
Lawyer for the accused	:	Public Solicitor