State v Eddie (No 1) [2009] PGNC 173; N3782 (23 October 2009)

N3782

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1143 OF 2007

THE STATE

V

PETER EDDIE

(No: 1)

Kokopo: Makail J,
2009: 8th, 10th July & 23rd October

CRIMINAL LAW - Verdict - Plea of not guilty - Sexual penetration - Elements of offence - Penetration of vagina by penis - Girl under age of 16 years - Defence raises mistake of fact - Defence of reasonable belief of victim aged 16 years or older - Defence of victim being aged 12 years or older and accused no more than 2 years older than victim - Onus of proof on prosecution to negate honest and reasonable belief - Whether prosecution has discharged onus of proof and negated honest and reasonable belief - Criminal Code - Section 25 - Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 - Sections 6(a), 229A(1) & 229F(a)&(b).

Cases cited:
Papua New Guinea cases

The State -v- Penias Mokei (No 1) (2004) N2606
The State -v- Simam July Melly: CR No 1122 of 2007 (Unnumbered & Unreported Judgment of 13th July 2009)
The State -v- Thomas Narop and Morris Kramer: CR No 355 of 2006 (Unnumbered & Unreported Judgment of 21st February 2009)
The State -v- Peter Yama (1990) N817
The State -v- Flotyme Sina (No. 1) (2004) N2540
The State -v- Garry Sasoropa & 2 Ors (No 1) (2004) N2565

Overseas cases cited:

Browne -v- Dunn (1893) 6 R 67 HL

Counsel:

Ms N Lipai, for the State
Mr B Tanewan, for the Accused

VERDICT

23rd October, 2009

1. MAKAIL J: The accused is indicted with four counts of sexual penetration of a female child under the age of 16 years by the name of "EK" (the "victim") between 01st March and 31st April 2007 at Niolam Security Barracks, Takubar of the East New Britain Province contrary to section 229A(1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (the "Criminal Code as amended").

2. This section states:

"229A. SEXUAL PENETRATION OF A CHILD.

(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 Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) ...................."

2. The State alleges that the accused comes from Galilo village in Hoskins of the West New Britain Province. Between 01st March and 31st April 2007, the accused and the victim were living at Niolam Security Barracks at Takubar in Kokopo of the East New Britain Province. During that period, the accused sexually penetrated the victim on four separate occasions. It alleges that during that period, the accused was over the age of 17 years and the victim was 14 and a- half years old and was attending Kalamanagunan Primary School.

3. The State alleges as a result of the acts of sexual penetration, the victim became pregnant and after sometimes, the victim revealed to her mother her sexual relationship with the accused when her mother noticed changes in her physical appearance. The accused was apprehended and charged with four counts of sexual penetration of a child under the age of 16 years contrary to section 229A(1) of the Criminal Code as amended.
The State’s evidence consists of the following documentary evidence which were admitted by consent of the defence:

1. Record of Interview of the Accused in the Pidgin and English versions dated 04th September 2007 (Exhibit "P1");

2. Statement of Interviewing Officer, Veronica Gusamo dated 20th September 2007 (Exhibit "P2");

3. Statement of Corroborator, Edina Timmie dated 20th September 2007 (Exhibit "P3");

4. Medical Report of Dr S Arua dated 09th October 2007 (Exhibit "P4");

5. Dental Report by Ludwig Lukara dated 12th September 2007 (Exhibit "P5"); and

6. Statement of Delyne Geoba undated (Exhibit "P6").

4. In addition, the State called the victim and the mother of the victim to give evidence. They gave oral evidence and were cross examined by defence counsel. The accused was the only witness for the defence. He also gave oral evidence and was cross examined by the State prosecutor.

5. The evidence of the victim is that she comes from Duke of Yoke Island but lives at Niolam Security Barracks at Takubar with her parents. In 2007 she was doing Grade 6 at Kalamanagunan Primary School but stopped going to school this year because she has given birth to a baby. The accused is the father of the baby. The baby is a result of her sexual relationship with the accused.

6. The first time they went out was when she was standing with another child at the side of the road when the accused called her to go and see him. She went over to him and he pulled her by her hands and told her to follow him but she told him that she was afraid of her mother discovering them together. The accused told her that her mother would not find out and pulled her by her hands and she followed him. "They had sex" and that day was a Sunday in March 2007.

7. The second occasion was on a Friday after school. The victim’s mother told her to go and get some vegetables and on her way, the accused met her and told her to go with him and she did. He told her to "have sex" and "they had sex". This took place at PNG Balsa Plantation. The third occasion was when she and some girls went into the coconut plantation to collect coconuts. The accused followed them into the coconut plantation and called her over to him. He told her to "have sex" and "they had sex". This was in April 2007. The fourth and the last time was also in April 2007 when the accused entered the house of the victim and "they had sex".

8. After the fourth occasion, she stopped having her menstruation and so she told the accused not to visit her again. She realized that she was pregnant and stopped going to school. She says she is now 17 years old as she was born on 18th October 1992 because her mother had told her about her date of birth. She says that in 2007, she was 15 years old.

9. It was suggested during cross examination by defence counsel that she and the accused were "boy-friend and girl-friend" and she agreed. It was further suggested to her that her parents were fully aware of her "boy-friend and girl-friend" relationship with the accused and she agreed. But she also agreed to defence’s counsel suggestion that her mother did not know the extent of their "boy-friend and girl-friend" until she was pregnant. She also denied the suggestion by defence’s counsel that she and the accused were in the same age group and maintained that she was 15 years old when she and the accused were friends.

10. The mother of the victim also gave evidence that she is the adopted mother of the victim. She comes from Duke of Yoke Island and married with four children. Three of them are her biological children and they are Wesley, Anna and Delila whilst the fourth one is the victim who is the adopted one. She adopted the victim from her younger sister when she gave birth to her at Kimbil Health Center on Duke of Yoke Island on 18th October 1992. Although she was not present when her younger sister give birth to the victim she took the victim with her when she was only a week old because she remembers well that the victim’s belly button were still intact after birth, signifying the very early stage of infancy and birth.

11. They reside at Niolam Security Barracks at Takubar and in 2007, the victim was doing Grade 6 at Kalamanagunan Primary School. She has stopped going to school since 2007 because she had given birth to a baby and the father of the baby is the accused. How she came to know about this is that one morning she became suspicious of her daughter’s physical appearance because she noticed changes in her physical appearance and called her over to her. She asked the victim if she was pregnant and asked her to lift up her t-shirt which she did. She saw both of her nipples were black and she told the victim that she was pregnant.

12. She told her elder daughter, Anna about the victim’s pregnancy and told her not to mention it to their father but when Anna heard it, it was too much for her and she cried. While she was crying, their father came and inquired and Anna told him about the victim’s pregnancy. Their father summoned her and the victim and asked the victim who made her pregnant. The victim told him that it was the accused and so their father went to talk to the accused’s parents to settle the matter. Both sides held a meeting at Niolam Security Barracks and the father of the accused and the accused agreed that he would take the hand of the victim in marriage but it was the mother of the accused who disagreed. As a result, the matter was reported to the police where the accused was arrested and charged with these offences.

13. There was very little cross examination by defence counsel of this witness but one question that was asked was whether she was present at the time of the birth of the victim. She answered, no.

14. The accused is from Galilo village in Hoskins of the West New Britain Province. He lives at Niolam Security Barracks with his parents. He knows why he is in Court and that is, he has been charged with four counts of sexual penetration of the victim. How all these happened is that, the victim wrote him a letter. On one Friday night as he was going for a night out with friends, he saw the victim and he called her over and told her that he would see her the next day because he was going out with friends that night.

15. On the next day, the victim met him and he asked her why she wrote him that letter. She told him that she wanted to be his girl friend. That was how they became "boy friend and girl friend". On the first occasion, "he got her" and the second occasion he gave her time and "got her out again" and "got her again" on the third occasion. He gave her sometimes and on the fourth occasion, she told him that she had some problems. When the victim’s parents found out that she was pregnant, she told them that he made her pregnant. He wanted to solve the dispute out of court but the victim’s parents reported it to the police sexual offences squad and he was arrested and charged accordingly.

16. When they were either dating or "had sex", he did not ask the victim about her age but from her physical appearance, he saw that she was physically matured because of her large breasts and how she talked as well as how she did things. She acted like a grown up and from her physical appearance and actions, he believed that she was a matured woman and befriend her.

17. In cross examination it was suggested by the State prosecutor that the "incident" occurred in 2007 and he agreed. When asked as to when he moved over to Niolam Security Barracks, he said in 2003. When suggested by the State prosecutor that, as he had lived at Niolam Security Barracks since 2003, he would have known the victim, he agreed. When it was further suggested that, in 2007 the victim was doing Grade 6 at Kalamanagunan Primary School, he agreed.

18. But he was unsure of the State prosecutor’s suggestion that in 2003, the victim was doing Grade 2 but agreed to the suggestion that the victim was not in his age group as she was under the age of 16 years. He also agreed to the suggestion that generally children attending primary school were "small" or young children. In re-examination by his counsel, he said that he and his parents first moved to Niolam Security Barracks last year (2008).

19. To prove the offence of sexual penetration of a child under the age of 16 years, the State bears the onus of proving the following elements:

1. the accused engaged in the act of sexual penetration; and

2. the child is under the age of 16 years.

20. In my view, these are two very important elements that the State must prove. The State’s case stands tall or falls on these two elements. As Cannings J, correctly stated in The State -v- Penias Mokei (No 1) (2004) N2606:

"The accused has been charged under Section 229A(1) of the Criminal Code. It must be proven beyond reasonable doubt that:

- the accused engaged in an act of sexual penetration; and

- it was with a child under the age of 16 years.

They are the two actus reus elements of the offence. The provision does not expressly prescribe the mens rea element. So it implied that it must be proven beyond reasonable doubt that:

- the accused voluntarily committed the act, with the intention of doing it, and with honest and reasonable knowledge that it was not an innocent act (see The State v Okun John (2000) N1977 (Kirriwom J)."

21. I now first, turn to the element of sexual penetration. Did the accused sexually penetrate the victim? It is common ground between the parties that the accused sexually penetrated the victim between 01st March and 31st April 2007 on four different occasions. Given the parties’ common position in respect of the element of sexual penetration, I find that the accused sexually penetrated the victim during the period in question. It is also common ground that as a result of the acts of sexual penetration on the four different occasions, the victim fell pregnant and gave birth to a child but it seems the accused disputes the paternity of the child.

22. Be that as it may, I must warn the State prosecutor that if evidence is led in the manner in which it was led in this case where the victim simply said that, "we had sex", the chances of securing a conviction against an accused on a charge of sexual penetration of a child under the age of 16 years under section 229A(1) of the Criminal Code as amended is very minimal or none. This is because the definition of sexual penetration under section 6(a) of the Criminal Code as amended makes it mandatory that the State must establish that the accused "inserted or introduced his penis into the vagina of the victim."

23. This means, the victim must state in unequivocal terms that the accused inserted or introduced his penis into her vagina. It is therefore, not sufficient to say "we had sex" or "we had sexual intercourse". See the discussions on the element of sexual penetration in my recent judgment of The State -v- Simam July Melly: CR No 1122 of 2007 (2009) N3772 and Lay J’s judgment of The State -v- Thomas Narop and Morris Kramer: CR No 355 of 2006 (Unnumbered & Unreported Judgment of 21st February 2009). However, since the defence does not take issue with the first element of the offence that the accused sexually penetrated the victim’s vagina with his penis on four separate occasions, the above discussions becomes academic, and I must find that this element is satisfied.

24. I now turn to the second element of the offence and that is, age. The victim must be under the age of 16 years. Was the victim under the age of 16 years when the accused sexually penetrated her? It appears the accused takes issue with the age of the victim. He challenges the evidence of the mother of the victim in respect to the date of birth of the victim of 18th October 1992. It seems the accused says that the victim was 16 years or older or alternatively, it could not be established from the evidence of the State witnesses if the victim was under the age of 16 years at the time of the acts of sexual penetration.

25. In this respect, I note the mother of the victim gave evidence that she is the adopted mother of the victim. The victim is her younger sister’s daughter, born at Kimbil Health Center on 18th October 1992. Whilst counsel for the accused submits that I should not accept and rely on the evidence of the mother of the victim in respect of the date of birth of the victim because she was not present at the time the victim was born, hence hearsay, I respectfully reject this submission because there is further evidence from her that she took the victim from the biological mother when she was a week old. She is certain that the victim was only a week old because her belly button was still intact when she took her from her biological mother.

26. On this basis, whilst I cannot say with certainty that the victim was born on 18th October 1992 as that aspect of the evidence is hearsay, there is further evidence from her mother upon which I can find that the victim was born sometimes in October 1992. In making this finding, I place no reliance on the victim’s evidence of her date of birth as that evidence is hearsay since she was told by her mother. See Thomas Narop & Morris Kramers’ case (supra) at p 11.

27. Thus, counting from October 1992, by March 2007, she would have been 14 years and 5 months old when the first act of sexual penetration took place. By 31st April 2007, she would have been 14 years and 6 months old when the fourth and final act of sexual penetration took place. It is therefore, clear and I so find that the victim was under the age of 16 years at the time the acts of sexual penetration took place.

28. But the accused says that he reasonably and honestly but mistakenly believes that she was aged 16 years or older when he sexually penetrated her during that period. First, he raises mistake of fact under section 25 of the Criminal Code. Section 25 states:

"25. Mistake of fact.

(1) Subject to Subsection (2), a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

(2) The operation of Subsection (1) may be excluded by the express or implied provisions of the law relating to the subject."

29. In The State -v- Peter Yama (1990) N817, a case where the accused was charged for rape of a woman whom he believed had agreed to marry him raised mistaken belief and Jalina AJ, (as he then was) explained mistaken belief under section 25 of the Criminal Code in this way:

"The defence has submitted, in light of the evidence regarding the exchange of words about marriage, exchange of clothes with the prosecutrix, the accused’s accompanying the prosecutrix to Matilda Lahis’s house at Moitaka coupled with the evidence that he did not attempt to run away, that he had an honest and reasonable (though it may have been mistaken) belief that she was consenting and as such he is not criminally responsible. Although not referred to by Mr Sakumai, he appears to be making the submission pursuant to s 25 of the Code.

Mistake under the Code is not a defence but a matter which exonerates criminal responsibility, accordingly the prosecution must negative the existence of honest and reasonable belief, R v Philip Boike Ulel (1969) No 533. If there is some evidence of a mistaken belief the onus is on the State to establish beyond reasonable doubt that the accused did not have such a belief, R v Yoka Kiok (1970) No 607.

To absolve the accused from criminal responsibility the belief though mistaken, must be both honest and reasonable. "Honestly held" belief involves a subjective test and "reasonably held" involves an objective test applying the standard of the ordinary man coming from the accused’s environment, R v Yoka Kiok (1970) (Supra)." (Underlining is mine).

30. In a case where an accused raises mistake of fact under section 25 of the Criminal Code, the State must negate the accused’s belief that he acted under an honest and reasonable but mistaken belief. An honest belief involves is a subjective test whilst a reasonable belief involves an objective test. This means that the Court must be satisfied beyond reasonable doubt that the accused honestly believed that what he did was not wrong and that what he did was reasonable when applying the standard of ordinary man coming from the accused’s environment.

31. In the present case, the State bears the onus of proof to negate the accused’s honest and reasonable belief that the victim was aged 16 years or older once he raises mistake of fact under section 25 of the Criminal Code in respect to the four counts of sexual penetration of a child under the age of 16 years under section 229A(1) of the Criminal Code as amended. In other words, the accused never carries the burden to prove his mistaken belief. If he raises it, and if the State does not negate it, he should be acquitted.

32. Secondly, he raises the defence of a reasonable belief that the victim was aged 16 years or older and also the defence that the victim was 12 years or older and he was no more than 2 years older than the victim at the time he sexually penetrated her under section 229F(a)&(b) of the Criminal Code as amended respectively. This section reads:

"229F CONSENT NO DEFENCE

Subject to Section 229E, it is not a defence to a charge under this Division that the child consented unless at the time of the alleged offence -

(a) the accused believed on reasonable grounds that the child was aged 16 years or older; or

(b) the child was aged 12 years or older, and the accused was no more than two years older than the child."

33. Neither counsel have referred me to any case authority discussing the above provision. I too have not been able to find any to assist me in my deliberations. Nonetheless, this does not mean that I cannot decide the issue. I have the authority to decide the issue now as it has been raised by the defence and I do so hereafter. In a case where an accused person raises a defence of reasonable belief that the victim was aged 16 years or older under section 229F(a) above, I consider that, the State bears the onus to negate that reasonable belief. I also consider that a reasonable belief involves an objective test. That is, the Court must be satisfied that the accused believed that what he did was reasonable in the circumstances when applying the standard of an ordinary man coming from the accused’s environment or background.

34. But in my view, there is no requirement that the State must negate the accused’s honest belief here. This is the difference between mistake of fact under section 25 of the Criminal Code and reasonable belief under section 229F(a) of the Criminal Code as amended. Thus, the questions that arise from these two provisions and the facts of this case are, first, did the accused have an honest and reasonable but mistaken belief that the victim was aged 16 years or older under section 25 of the Criminal Code and secondly, did the accused have a reasonable belief that the victim was aged 16 years or older and finally that the victim was aged 12 years or older and he was no more than 2 years older than her under section 229F(a)&(b) of the Criminal Code as amended respectively?

35. First, I turn to the honest and reasonable but mistaken belief of the accused under section 25 of the Criminal Code. Did the accused have an honest belief that the victim was aged 16 years or older? It is his evidence that he believed that the victim was aged 16 years or older because first, it was the victim who proposed to befriend him and he accepted the proposal. Secondly, although he was reluctant to continue the relationship, and stayed away from her, she was the one who insisted on the relationship by encouraging and allowing him to sexually penetrate her. Finally, he saw that she was matured or an adult because she had big breasts and talked like other older women. She also acted like other older women or did things like other older women.

36. Based on the above evidence, his counsel submits that the accused honestly believed that the victim was aged 16 years or older when he sexually penetrated her.

37. For the State, the victim said that first, she was lured by the accused to have sex with him one Sunday in March of 2007 when she was standing beside a road with another child. She was reluctant to go but he insisted and she gave in. This was the first sexual encounter and thereafter, they had three more sexual encounters which resulted in her falling pregnant.

38. Secondly, she said that when the accused first sexually penetrated her on a Sunday of March 2007, she was 14 years and 5 months old and on the fourth and final sexual encounter, in April 2007, she was 14 years and 6 months old and during that period was doing Grade 6 at Kalamanagunan Primary School. Based on the above evidence, the State prosecutor submits that there could be no doubt in the mind of the accused that, the victim was not aged 16 years or older. The Court should therefore, find that the State has negated the accused’s honest belief.

39. Having considered the competing arguments and of course, the evidence of both sides, I am of the opinion that the State has negated the accused’s honest belief that the victim was aged 16 years or older because first, I do not believe the evidence of the accused that it was the victim who initiated the boy friend/girl friend relationship. Logic and common sense would dictate that a male would initiate the relationship. Not the other way around. See The State -v- Flotyme Sina (No 1) (2004) N2540 and The State -v- Garry Sasoropa & 2 Ors (No 1) (2004) N2565.

40. I find that the accused initiated the relationship by luring the victim on one Sunday in March of 2007 and sexually penetrated her. Further, I do not believe his evidence that the victim wrote him a letter, inferring a proposal to befriend him. If that is the case, where is the evidence of the letter? I find there is none before the Court. Furthermore, it was not suggested to the victim by defence counsel in cross examination that she had written a letter to the accused, as part of the defence case to challenge State’s case. I find that the failure by the defence to do that is in breach of the famous rule in Browne -v- Dunn (1893) 6 R 67 HL. Thus, in all fairness to the State, I place no reliance on the evidence of the accused that the victim was the one who initiated the boy/girl relationship by writing him a letter.

41. On the other hand, I accept her evidence that she was reluctant to follow the accused when he first approached on the side of the road on the Sunday of March 2007 because she was afraid that her mother might find out about their boy/girl relationship. The victim’s initial reaction indicates to me that she was not ready to enter into the boy/girl relationship and the accused should have known that she was not ready. Secondly, he knew that the victim was under the age of 16 years because at that time she was doing Grade 6 at Kalamanagunan Primary School. I say this because, it is usually the case that students enroll at school at the age of 7 years to do Grade 1 and by the time they reach Grade 6, they would be around the age of 13 years. I would say 13 years is the average age of a child in Grade 6.

42. If I accept that to be the case in the victim’s case, then she would have been around 13 years old at the time of the alleged offences. The age of 13 years is just a difference of 1 year and 5 months to her age of 14 years and 5 months old which I had worked out earlier if we count from her date of birth of October 1992 to March 2007. This means, he should have known that the victim would have been around that age group at that time he befriend her and ended up sexually penetrating her.

43. Thirdly, and following on from the second reason is that, he knew and had seen the victim since 2003 when the victim and her parents moved to Niolam Security Barracks. This means, the victim is not a stranger to him and he would have seen her grow up right before his eyes from a child to where she was when they engaged in the sexual activities.

44. I say this because, I do not believe the accused’s evidence that he did not see or knew the victim until 2007. His evidence is contradictory. In his evidence in chief, he said that he knew and had seen the victim since she moved with her parents to Niolam Security Barracks in 2003 and in cross examination by the State prosecutor, he reaffirmed that he had lived at Niolam Security Barracks since 2003 and the acts of sexual penetration took place in 2007. But in re-examination by his counsel, he said that he and his parents moved to Niolam Security Barracks in 2008. I can see that he wants to deny seeing or knowing the victim prior to the sexual activities in 2007 but in so doing, he has contradicted himself which makes me have no hesitation to find that he had seen or knew the victim prior to 2007.

45. For the forgoing reasons, I find that the accused did not have a honest belief that the victim was aged 16 years or older when he sexually penetrated her on four different occasions between March and April 2007.

46. Secondly, I turn to the question of whether the accused had a reasonable belief that the victim was aged 16 years or older. As I have alluded to above, this question is determined objectively. In other words, it is not dependant on what he thinks is reasonable but what others in his position would have thought and how they would have viewed the victim at that time.

47. I find this case, a case of a "boy friend/girl friend" relationship between two teenagers. The accused and the victim were befriending each other under the very noses of their parents. Their parents were unaware of their sexual activities until the victim became pregnant and her mother found out after making enquiries with her. Her mother secretly broke the news of her pregnancy to her elder sister Anna, who with a sorrow filled heart reported her younger sister’s pregnancy to her father.

48. I also find that the revelation of her pregnancy caused a big uproar and argument between her parents and the accused and his parents. It appears both sides could not resolve the dispute although it was proposed the victim and the accused get married. As there was no agreement reached, the parents of the victim went ahead and laid a complaint with the police. This led to the police arresting and charging the accused with four counts of sexual penetration of the victim. The victim has since left school to raise the baby.

49. I do not believe that any boy in his age group would have held the same belief that he had because they would have known that the victim was under the age of 16 years. This is because, the victim was still attending primary school and any girl attending primary school, doing Grade 6 would be around 13 years of age, a point of observation I made earlier. Girls around that age group would not have developed big breasts and act like older women. In my view, this is a case of two young children engaging in sexual activities they knew were wrong, but yet went ahead and committed them. They were consensual sexual acts.

50. Secondly, from my own observations of the physical appearance of the victim in the dock, I could tell that although she looks matured because she has developed big breasts, the observation I make is some two years after the alleged offences. Going back two years, I doubt she would have developed big breasts to indicate that she was matured at that time. Further still, the breasts she has developed are the result of child bearing and breast feeding. I would therefore, conclude that she was not matured at that time and the accused could not have been mistaken.

51. These matters lead me to conclude that the accused did not hold a reasonable belief that the victim was aged 16 years or older at that time he sexually penetrated her. It follows I find that the State has negated the accused’s mistaken belief that the victim was aged 16 years or older.

52. I now turn to the defence of reasonable belief that the victim was aged 16 years or older under section 229F(a) of the Criminal Code as amended. As I have said above, for the Court to be satisfied that the accused believed that the victim was aged 16 years or older, the Court must apply the objective test and that is, what is reasonable when applying the standard of an ordinary man coming from the accused’s environment or background. This test is the same test applied in a case of mistake of fact under section 25 of the Criminal Code.

53. Proceeding one this basis, I adopt the reasons I have given above, herein and find that the accused did not have a reasonable belief that the victim was aged 16 years or older at the time he sexually penetrated her.

54. It follows too that the State has negated the accused’s belief that the victim was aged 16 years or older. In other words, he knew that the victim was under the age of 16 years and knew that he was engaging in sexual activities with a minor at that time.

55. Finally, I turn to his defence that the victim was "aged 12 years or older" and he was no more than 2 years older than the victim under section 229F(b) of the Criminal Code as amended. In his Record of Interview (Exhibit "P1"), the accused told the police investigating officer that he was 17 years. That was the age he gave at the time of interview on 04th September 2007. The State has produced a Dental Report by Ludwig Lukara dated 12th September 2007 (Exhibit "P5") to verify his evidence if he was indeed 17 years old at that time. Based on this evidence, his counsel submits that the defence under section 229F(b) of the Criminal Code as amended applies.

56. He submits that if the accused was aged 17 years and the victim was 14 years and 5 months, and if we take her age from the date of the first sexual encounter on Sunday of March 2007, there would be an age difference of 2 years and 7 months between them. He would not be criminally liable because he is excused by operation of section 229F(b) above. On the other hand, the State prosecutor submits that even if we were to apply the age difference of 2 years and 7 months, the accused would still be caught out by being outside of the 2 years, by 7 months. Hence, this defence is not available to him.

57. Again, having considered the competing submissions and evidence of both sides in respect of the defence under section 229F(b) of the Criminal Code as amended, first, I find that the accused was aged 17 years at the time he sexually penetrated the victim. I so find based on the Dental Report by Ludwig Lukara dated 12th September 2007 (Exhibit "P5") where Dr Ludwig after examining the teeth of the accused stated that in his opinion, the accused was "almost 18 years old". This means, the accused was 17 years going 18 years old. I say this because the dental examination was done on 12th September 2007, some 5 months after the acts of sexual penetration in March and April 2007 which could mean that the accused was 17 years old then.

58. Based on the accused’s age of 17 years, I must agree with the submissions of the State that even if we were to apply the age difference of 2 years and 7 months, the accused would still be caught outside of the 2 years by 7 months because of the words "no more than two years older than the child (victim)" under the last part of sub section (b) of section 229F.

59. Just to emphasize the point, I have found earlier that, the victim was born sometimes in October 1992 at Kimbil Health Centre on Duke of York Island. Counting from October 1992 to March 2007, the victim would have been aged 14 years and 5 months old. She is above the age of 12 years and by deducting 14 years and 5 months from 17 years, it gives 2 years and 7 months. He is outside the "permissible period" by 7 months. I find therefore, that the defence under section 229F(b) of the Criminal Code as amended is not available to the accused. It follows I must find that he sexually penetrated the victim who was under the age of 16 years during that period.

60. In summarizing all the above discussions, I am not satisfied that the accused did have an honest and reasonable but mistaken belief that the victim was aged 16 years or older. On the other hand, I am satisfied that the State has discharged the onus of satisfying me beyond reasonable doubt that the accused had no honest and reasonable belief that the victim aged 16 years or older, and it follows that, it has excluded beyond reasonable doubt the existence of a honest and reasonable but mistaken belief that the victim was aged 16 years or older under section 25 of the Criminal Code.

61. Further, I am neither satisfied that the accused had a reasonable belief that the victim was aged 16 or older at that time he sexually penetrated her under section 229F(a) of the Criminal Code as amended nor was the victim aged 12 years or older and he was no more than 2 years older than her at the time he sexually penetrated her under section 229F(b) of the Criminal Code as amended.

62. I am satisfied that all the elements of the offence has been proven beyond reasonable doubt and as the State has first, negated the accused’s mistaken belief under section 25 of the Criminal Code, secondly negated his defence of reasonable belief under section 229F(a) of the Criminal Code as amended, and finally negated his defence that he is 2 years in age difference to the victim under section 229F(b) of the Criminal Code as amended, I therefore, find the accused guilty of four counts of sexual penetration of the victim, a child under the age of 16 years and convict him accordingly. The accused must now await the hearing on sentence on a date to be nominated by counsel.

63. Guilty verdict returned and orders accordingly.

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Acting Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Accused