State v David [2010] PGNC 210; N4544 (15 February 2010)

N4544

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 495 OF 2008

THE STATE

V

HENRY DAVID

Goroka: Yagi J
2010: 5th, 12th & 15th February

CRIMINAL LAW – sentence - particular offence – sexual penetration of a girl under 12 years – unnatural penetration – youthful first offender – aged 17 years – close relations - victim aged 8 years – offender treated as juvenile – exercise of power under Juvenile Courts Act – prevalence of offence – protection and rehabilitation of offender –interest of the offender paramount consideration – sentence of 2 years imprisonment imposed – sentence suspended and placed on probation with strict conditions.

Cases Cited:

State v Linonge Kuso CR No. 1 of 2008 (2008, Goroka) (Batari J)

Counsel:

V. Mauta, for the State
M. Mumure, for the Accused

SENTENCE

15th February, 2010

1. YAGI J: The offender, Hendry David, is aged 17 years, and comes of Koningi village, Watabung District in the Eastern Highlands Province. He is born to a mix parentage. His father is from the Eastern Highlands Province and mother is from the East New Britain Province.

2. The offender has pleaded guilty to one count of sexual penetration of a girl under the age of 12 years, an offence under s. 229B of the Criminal Code Act (as amended). This offence carries a maximum penalty of life imprisonment.

3. The facts are that the offender was living with the victim and her family in the same house at DCA compound in Goroka. He came to stay with the victim's family so that he could attend school in Goroka. At the time of the offence he was aged about 17 years and doing grade 9 at Goroka Secondary School. It was an arrangement for convenience as his parents were living some distance away from the school. There is a further reason why the offender was welcomed and accepted to stay with the victim and her family. The victim's mother and the offender's mother are closely related. They are, as I understand, first cousins.

4. On that day in question the offender, the victim and a number of other children including the victim's elder sister, aged about 20 years, were playing cards within the DCA compound premises. It would appear that they were gambling with money with small bets.

5. After the gambling, the victim was going to her house when the offender asked the victim to join him at the kitchen house near to the house. The victim refused and the offender physically forced the victim into the kitchen house, removed her clothes, and sexually penetrated her anus several times with his penis until he ejaculated. The victim felt pain and cried but the offender closed her mouth with the palm of his hand and silenced the noise. After the act the offender gave the victim K1.00 and told her not to tell anyone about the incident.

6. The victim's parents were not present at that time. The mother is a teacher and was teaching at Faniyufa Primary School when the incident occurred. It is not clear why the offender was not attending school at that time.

7. The victim did not complain about the incident to anyone. She went to her room in the house and changed into a new set of clothes. When the elder sister queried why she changed clothes, the victim told her that the offender poured water on it. The answer drew curiosity and suspicion. The elder sister then took a closer inspection of the damped garment and discovered that the damp was caused by semen. The victim was further questioned by her elder sister and she revealed that the offender had sexually penetrated her anus.

8. After committing the offence, the offender ran away and was later apprehended and charged for the offence.

9. The offender's personal antecedent and background is as follows. The offender is the first born in the family. He has 5 other younger brothers and sisters. They are all in school from pre-school to upper primary level. His father is a senior church pastor with Mormon Church. The offender has been brought up in a disciplined Christian background and environment with strong religious upbringing. The family live in a reasonable accommodation presumably supplied by the church. His mother is from Kokopo in the East New Britain Province. The news about the offence has shocked and surprised his parents. The offender has never been in trouble previously and has no record of prior conviction.

10. The offender is a young person. The question is how should the Court determine the right kind of sentence or punishment that is appropriate to young persons such as the offender.

11. Mr. Mumure, the defence counsel, submits that the offender is a juvenile for the purposes of the Juvenile Courts Act and therefore the Court should exercise the powers of the Juvenile Court. The prosecution concedes to this submission. I accept this submission and will therefore deal with the offender in that manner.

12. The Juvenile Courts Act defines a juvenile as a person apparently not less than 7 years and under the age of 18 years. This means that a person between the age of 7 to 18 years is considered a juvenile for the purposes of the Act. The Act was enacted to replace certain provisions of the Child Welfare Act and the Village Courts Act, which deals with children that come into conflict with the law and in particular the powers and functions of the Children's Court in dealing with children who have committed offences.

13. The scheme of the Juvenile Courts Act is essentially to protect, promote and foster the welfare and interest of children who violate the criminal law. One of the objects of this legislation is to provide a regulatory guideline and procedure in sentencing of juvenile offenders.

14. The key consideration under the Act that is of paramount importance when a Court is dealing with juvenile offenders is the "interests of the juvenile". This is stipulated very clearly by the Juvenile Courts Act at the very outset. Section 4 of the Act states:

"4. INTERESTS OF JUVENILE PARAMOUNT.

In proceedings and actions under this Act, the interests of a juvenile shall be the paramount consideration."

15. The powers of the Court in sentencing a juvenile is vested in ss. 30 and 32 of the Act. These provisions provide a range of sentencing options such as discharge without conviction, conviction and discharge, fine, order to pay compensation, probation, placing a juvenile in a ward of Director of Child Welfare and detention is a juvenile section of a corrective institution.

16. However, whilst the Court has a wide discretion in sentencing, the Court must take into account a number of important factors in its deliberation. These are what I would call "mandatory factors". These factors are enumerated under s. 31 of the Act. They are:

"(a) the seriousness of the offence and the circumstances in which it was committed;

(b) the age, maturity, education, health, character and attitude of the juvenile;

(c) the juvenile's parental and family background as well as the social and community environment in which he lives and to which he is likely to return;

(d) the juvenile's previous history in respect of offences and his responses to previous orders in relation to those offences;

(e) the community services and facilities that are available to assist the juvenile and his willingness to use those services or facilities;

(f) any proposals that the juvenile or his parents may put forward for the future improvement of the juvenile;

(g) any views of a Juvenile Court Officer in relation to the juvenile;

(h) any views of any person who is involved in the education or custody of the juvenile;

(i) any other factor that the Court may consider relevant."

17. Having examined the relevant provisions of the Act, I now turn to consider the sentence. I start by first evaluating each of the mandatory factors prescribed in s. 31.

(a) the seriousness of the offence and the circumstances of the offence.

There is no doubt that the offence committed y the offender is very serious. This is reflected in the penalty. The offence is committed on a young girl under the age of 12 years. The girl was of a tender age, she was 8 years old. The maximum penalty that the offender is liable for as punishment is life imprisonment.

There is nothing much to be said about the circumstances of the offence. The offender had not provided any or sufficient explanation for his misconduct in terms of how and why he committed the offence. In the record of interview with the police, Q & A No. 23, the offender said that somehow he felt the sexual urge that day and seized the opportunity on a vulnerable little girl. But it appears that it was not all one way traffic. The girl may have played a part. In the pre-sentence report the offender told the CBC officer that the girl was the first to propose and according to the offender, invited him to perform the unnatural act. This appears to be consistent with the behaviour of the girl after the incident where she accepted K1.00 as payment in return for the sexual favour and did not make any complaint to her elder sister or anyone for that matter. But again this may not be the case because the girl said in her statement said the offender threatened her not to tell anyone and paid K1.00 as a bribe.

(b) the age, maturity, education, health, character and attitude of the juvenile;

The offender is aged 17 years. He has been brought up in a very disciplined environment with strong Christian background. He is a person of good character and attitude. He has demonstrated a sense of maturity and responsibility for his misconduct. He has not been involved in any trouble before. He is in good health. He has recognized that what he has done was wrong in the eyes of the law and God. He expressed remorse and promised not to get into trouble again. He was attending grade 9 in Goroka Secondary School but withdrew from studies as a result of the trouble. He plans to continue with his education.

(c) the juvenile's parental and family background as well as the social and community environment in which he lives and to which he is likely to return;

The offender's father is a senior church pastor with the Mormon Church. The family therefore belongs to the Mormon Church. The family has a strong Christian background. They live within the church community and therefore the family continued to maintain strong Christian principles and values. They live in a semi permanent house. The offender, if released to the community, will remain under the control and responsibility of his parents within the Church community. There is no information as to the social environment in which the offender is to live if returned to his parents.

(d) the juvenile's previous history in respect of offences and his responses to previous orders in relation to those offences;

The offender has no previous history of offences.

(e) the community services and facilities that are available to assist the juvenile and his willingness to use those services or facilities;

The Court is not aware of any community services and facilities in the Eastern Highlands Province. However, the Community Based Correction service appears to be the only service orientated organization funded by the State that is accessible to the offender. The offender has expressed willingness to use this service as an alternate to custodial sentence.

(f) proposals that the juvenile or his parents may put forward for the future improvement of the juvenile;

The parents of the offender have expressed deep regret about the offender's conduct. However, there is no information regarding any proposal by the parents for the offender's future improvement or rehabilitation. The offender, however, in allocutus expressed a strong and sincere desire not to be involved in trouble again and that he had learnt his lesson from this trouble.

(g) views of a Juvenile Court Officer in relation to the juvenile;

The pre-sentence report indicates that the offender is not a danger to the community and that the offender had learnt his lesson from his mistake which had seriously affected his education and caused him hardships whilst in custody awaiting trial.

(h) views of any person who is involved in the education or custody of the juvenile;

There is none.

(i) any other factor that the Court may consider relevant."

There is none.

18. In addition to the mandatory factors I take into account the following mitigation factors in favour of the offender:

• plea of guilty
• cooperated with the police and made admissions freely at the earliest opportunity
• he has expressed remorse
• he is a first offender
• he a juvenile
• it was a single isolated act
• no injury caused to the victim except for the initial short pain
  

19. The aggravating factors against the offender are:

• the offence is very serious
• the offence is prevalent
• the girl was under the age of 12 years
• the offence was committed against the order of nature
• the offence was committed on a very close relative
• the offender was in a position of trust and abused the trust
  

20. It seems to me that the mitigating and aggravating factors appear to evenly balanced and with neither weighing heavily against the other. In an ordinary case, I would be persuaded to take a strong view and tough line approach to dealing with offenders in cases of this nature.

21. Having accepted that the Court should deal with the offender as a juvenile, I remind myself of the overriding dictate of the statute in s. 4 of the Juvenile Courts Act that the interests of the offender shall be the paramount consideration.

22. In allocutus, the offender made an earnest plea for mercy and leniency. The plea stems from his unpleasant encounter and experience in custody whilst awaiting his trial. He spoke of the undignified and inhuman treatment and the abuse he suffered at the hands of hard-core offenders. The process of criminal indoctrination was forcefully exerted on him.

23. It is clear to me that the offender comes from a good strong Christian background. He is very young and at a vulnerable age. He needs good and proper care and supervision to guide and steer him through his young life as a means of rehabilitation. Although the offence is very serious, I think the offender deserve a second chance. Placing him within the community of hard core prisoners is certainly not in the best interest of the offender. There is a real possibility that his future will be destroyed if a custodial sentence is imposed.

24. I also take into account the sentence imposed in a similar case of sexual penetration in State v Linonge Kuso CR No. 1 of 2008 were a sentence of 2 years was imposed on a juvenile offender with 1 year suspended and the balance of the term served in a juvenile institution.

25. In all the circumstances, I sentence the offender to 2 years imprisonment to be served in the juvenile section at Bihute Correction Institution or any other Institution in the country having such a facility. I further order that the term of imprisonment be suspended and the offender shall serve the whole of the prison term on probation pursuant to s. 30(2)(c)(iii) of the Juvenile Courts Act on the following conditions:

1. The offender shall immediately enter into a bond with surety of K500.00 to be of good behaviour for the whole duration of the suspended sentence and agree to faithfully comply with the terms.

2. The offender is ordered to provide 3 hours of free community service work per day every Mondays, Wednesdays and Fridays each week between the hours of 8:00am and 4:00pm for a period of 4 months to the Watabung Government Station and be supervised by Community Based Correction Office Goroka or its duly appointed agent.

3. The offender shall attend religious counseling by the head or senior pastor, excluding his father, of the Watabung Mormon Church for a period of 2 months and shall comply with any religious instructions or counsel given.

4. The offender shall not leave Watabung District and Eastern Highlands Province within the period of the suspended sentence.

5. The offender shall reside with his parents at Watabung Mormon Church and shall be home bound between the hours of 5:30pm and 7:00am for the whole of the suspended period.

6. The offender shall not be in the company of any youth for the whole of the suspended sentence.

7. The offender shall not consume any alcoholic drink or illegal or illicit substances of whatever make including any home brew.

8. The offender shall allow for Community Based Correction Service Goroka to do home visits and do six monthly reports to this Court; the first of such reports shall be due by 15th August 2010.

9. Any breach of these terms will automatically result in the lifting of the suspended sentence and the offender shall be required to serve the balance of the suspended sentence commencing from the date of the first breach.

Sentenced accordingly

_____________________________________________________________
Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender