State v Peter [2010] PGNC 48; N4011 (19 May 2010)

N4011

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 19 of 2009

THE STATE

V

PHILIP PETER

Kokopo: Sawong, J.
2010: 21 April, 13 & 19 May

CRIMINAL LAW – Sentence – Sexual Penetration of a girl under the age of 16 years – S.229 A(1) – Criminal Code – Plea – First Young Offender .

CRIMINAL LAW – Sentence – Victim impact statement – Section 21 A – Criminal Code – 5 years imprisonment – Suspended.

Cases Cited

John Elipas Kalabus v The State [1989] PNGLR 195.
State v Penias Mokei (No.2) (2004) N2635
State v Eddie Trosty (2004) N2681
State v Rudy Solo (2005) N3165
State v Simon July Meli (No.2) (2009) N3779
State v Kukubur Walim, CR.NO. 883/06 (Unnumbered & Unreported Judgment of 17 March 2009

Counsel
N. Miviri, for the State
P. Kaluwin with J. Ainui, for the Accused

19 May, 2010

1. SAWONG, J.: The accused pleaded guilty to a charge of sexual penetration of a girl under the age of 16 years old. The charge was laid pursuant to s 229 A(1) of the Criminal Code (Sexual Offences & Crimes Against Children) Act. I convicted him and adjourned hearing submissions on sentence till a Pre Sentence Report and a Measures Assessment Report were compiled and presented to the Court. These have now been compiled and presented to the Court.

2. The brief relevant facts are that the accused met the complainant along a track as she was on her way to visit a relative. They then agreed to have intercourse and they went into a secluded area and had consensual intercourse. The complainant was aged 15 years old at the time of the incident. The accused was aged about 20 years old.

3. Section 229 A (1) of the Criminal Code sets out the offence and the penalty to be imposed on a convicted offender. This section reads:-

"229 A - SEXUAL PENETRATION OF A CHILD

(i) 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...."

For the present purposes, the provision of subsections 2 & 3 are not relevant.

4. What is clear is that this particular offence attracts a possible maximum sentence of up to 25 years imprisonment. So you must realize that the crime you committed, is a serious crime, for which you could be sent to jail for up to 25 years in imprisonment. Members of Parliament have considered the crime of sexual penetration of under age children to be so serious and prevalent that they decided to increase the sentence to 25 years. It is the duty of the Court to apply the law and impose an appropriate sentence in a particular given case.

5. It is trite law that the maximum sentence must be reserved for the worse case of a particular crime. John Elipas Kalabus v The State [1989] PNGLR 195.

6. It is equally settled law that each case must be determined on its own facts and circumstances.

7. In considering the appropriate sentence in this case, I have considered other cases involving this offence. For instance in State v Simon July Meli (No.2) (2009) N 3779, after a trial the offender was convicted and sentenced to 8 years imprisonment. The complainant was 15 years old and the offender was a mature married man with several children. He was a first offender. No part of the head sentence was suspended.

8. In State v Penias Mokei (No.2) (2004) N 2635, Cannings, J. sentenced the offender to 15 years imprisonment. At the time of the offence, the complainant was aged 13 years and the offender was 33 years old. There was no breach of existing relationship of trust. The prisoner was a first offender. He pleaded guilty.

9. In State v Kukubur Walim, CR.NO. 883/06 (Unnumbered & Unreported Judgment of 17 March 2009, the offender pleaded guilty to two (2) counts of sexual penetration of a child under 16 years of age. No age disparity between the offender and the complainant. His Honour, Lenalia, J sentenced the offender to 8 years imprisonment on the 1st count and 6 years on the second count to be served concurrently. He suspended 5 years of the head sentence with conditions.

10. In State v Eddie Trosty (2004) N 2681, Kandakasi, J. imposed a sentence of 6 years on the offender after he pleaded guilty. He was a first time offender. At the time of the offence, the complainant was 15 years old and the offender was 21 years old. No physical injury to the complainant. The two of them were boy friend and girl friend relationship. None of the sentence was suspended.

11. In State v Rudy Solo (2005) N 3165, Kandakasi, J. imposed a sentence of 5 years imprisonment and suspended all of it with several stringent conditions. There, the offender pleaded guilty to sexually penetrating a girl under the age of 16 years. The girl was aged 15 years and the prisoner was 22 years old at the time of the offence.

12. Your Counsel has submitted that bearing in mind the mitigating factors present in your case, the Court should impose a sentence of between 5 to 6 years imprisonment. In addition, she urged the Court to seriously consider and accept the Pre-Sentence Report and suspend either the whole or part of the sentence.

13. Mr. Miviri, on the other hand submitted that sentencing was a matter for the Courts discretion and the Court should not lose sight of the fact that the law prescribed the penalty to protect young girls and to preserve morality in our society. As I understood his submission to mean that no part of the sentence should be suspended, and even if it was suspended, it should be a small part only.

14. I have taken into account in your favour the following mitigating factors:

1. First, is that you have pleaded guilty. Your plea of guilty is consistent with your co- operation with the police during the investigation and where you made early admission as evidenced in your Record of Interview. Therefore, it is my view that your plea of guilty before me is a genuine one.
   
2. Secondly, and following on from that, you expressed remorseness to the Complainant and her family for what you have done. That is good because, it would, hopefully go towards mending the broken relationship between you and them. You have also expressed remorseness to the Court.
   
3. Thirdly, and more importantly because you pleaded guilty, this has saved the girl from coming to Court and giving evidence in front of complete strangers, re-telling her ordeal and being subjected to cross examination from your lawyer.
   
4. Fourthly, you are a first offender. Obviously, you lived a peaceful life up until you committed this offence.
   
5. Finally, there is not much age difference between you and her. Furthermore, in my view you are a youthful offender. You are now aged 22 years but you were aged about 20 years old when you committed the offence.
   

15. At the time of the offence, you were aged about 20 years old. You are the eldest in a family of 3 children. You come from a broken family, in that your father has left you and your mother. You are relatively uneducated and up till you were apprehended, you lived a simple subsistence life in the village with your mother and other siblings. It is quite clear to me that your mother acted as a father and a mother to you and brought you up.

16. There are not many aggravating factors against you. The only factor against you is that there was an age disparity of about 5 years between you and the complainant. There was no breach of any existing relation of trust between you and the complainant.

17. The Pre-sentence report sets out the above matters in detail. I have read carefully the contents of that report and I thank the Community Corrections Officer, David Paul for the report.

18. What is of special interest and importance is that the report contains the views of the complainant and her parents in regards to the sentence that maybe imposed. Whilst the complainants statement is not strictly in accordance with the provisions of Section 21 A of the Criminal Code (Sexual Offences & Crimes Against Children) Act, nevertheless I consider it relevant in determining the appropriate sentence. I note in passing that, none of their Honours in the cases that I had referred to earlier, made any remarks about this provision. In other words, none of them addressed their minds to this aspect in their respective judgments.

19. Section 21 A reads:-

"21A. VICTIM IMPACT STATEMENTS

(1) For the purpose of determining the sentence to be imposed on an offender, the court shall consider any statement that may have been prepared in accordance with Subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

(2) A statement referred to in Subsection (1) must be:-

• (a) Prepared to writing in the form and in accordance with the procedures established for that purpose; and
  
• (b) Filed with the court.
  

(3) A statement of the victim of an offence prepared and filed in accordance with Subsection (2) does not prevent the court from considering any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender.

(4) For the purposes of this section, "victim", in relation to any offence –

• (a) means the person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence; and
  
• (b) where the person described in Paragraph (a) is dead, ill or incapable of making a statement referred to in Subsection (1), includes the spouse or any other relative of that person, anyone who has in law or fact the custody of that person or is responsible for the case or support of that person or any dependent of that person."
  

20. I do not propose to discuss or analysis s 21A in any great detail today and will leave it for another occasion. However, for the moment, I only wish to make some general observations. For the present purposes, that particular provision requires the Court to consider any written statement of a victim of an offence which is to be in a prescribed form to be in accordance with procedures set down for that purpose. In this case, I don’t have such a statement.

21. However, that is not the end of the matter, because Subsection 3 provides that the Court can consider any other evidence concerning any victim of offence for the purpose of determining the sentence to be imposed on the offender. I take that to mean that the Court is at liberty to take into account any relevant information from any source regarding the victims views relating to the offence in determining a sentence. It follows that, in my view, the views of the complainant as set out in the Pre-sentence Report ought to be taken into account and given whatever weight as one of the factors in determining the appropriate sentences.

22. Turning now to the complainants views, as set out in the Pre-sentence Report, the Complainant says that this offender has been sufficiently punished and that he should not be further punished. She also says that she would like the offender to pay some form of the compensation to her and her relatives.

23. The complainant’s father says that it would be unjust to further incarcerate the offender, in view of the complainants actions prior to the matter we are dealing with, and subsequently. He says that prior to the incident involving the offender, the complainant had committed a similar activity with another person. That person paid compensation and it appears nothing further may have happened. Then more recently, the complainant committed similar activity with another man from Raluan village. Therefore, he says that it would be unjust and unfair to send the offender to jail. He says that the offender should only pay compensation, whatever he could afford.

24. The Complainant’s mother expresses similar views as her husband.

25. In the final analysis, the report concludes that the offender is not a dangerous person, but he considers that the offender should be properly supervised by a Probation Officer. Mr. Paul, recommend that the offender is a suitable candidate for Probationary Supervision.

26. I next address the issue of whether any of the sentence shall be suspended either in part or in the whole.

27. Suspension of a sentence is not by any means an exercise of leniency. In other words, people should understand that suspension of a sentence is not meant to be a sign of leniency on the part of the Court. What it means is that, in principle, the offender would still be punished and serves his sentence. However, he would serve that sentence outside than inside a jail.

28. This way, if the offender is youthful he/she could be saved from being exposed to hardcore criminal in the jail and when they come out they become dangerous to the society. Whereas, if the offender serves his sentence outside of the jail, hopefully he will learn from his mistake and become a useful member of the community in the future.

29. For those reasons, I would impose a sentence of 5 years imprisonment in hard labour. From that I deduct the remand period of 1 year and 7 months leaving a balance of 3 years and 5 months to serve. Pursuant to s 19 (1)(f)(d) of the Criminal Code and ss 16 & 22 of the Probation Act. I suspend all of that and place you on Probation with the following conditions and Orders:

(a) SUSPENDS the sentence of imprisonment imposed on you of 3 YEARS and 5 MONTHS.

(b) RELEASES you on Probation from the date of this Order, with effect from the day you are released from detention with the CONDITIONS below:-

(AND ORDERS THAT YOU BE PLACED ON PROBATION for a period of 18 MONTHS from 19 MAY, 2010 with the CONDITIONS below.

(i) You shall go and remain at MALMALUAN VILLAGE, CENTRAL GAZELLE LLG until you are contacted by a Probation Officer; and

(ii) You shall report to a Probation Officer as and when required by the Probation Officer; and

(iii) You shall keep the peace and be of good behavior; and

(iv) You shall not change your address unless you have given a Probation Officer reasonable notice your intention to do so, and the reasons for the proposed change; and

(v) If you move to an area outside the Province, you shall report to a Probation Officer of that area within 48 hours of arrival and advise that Officer of the nature and place of your employment and or your new address; and

(vi) You shall, for the purposes of the Probation Act, allow a Probation Officer to enter your home during reasonable hours; and

(vii) ADDITIONAL CONDITIONS imposed by this Court under Section 18 of the Probation Act are:-

• (a) to pay K300.00 CASH and 100 FATHOMS of shell money as compensation to the complainant by 31 OCTOBER, 2010; and
  
• (b) not to have contact with PATRICIA RUKIE (name) during the Probation period; and
  
• (c) not to drink or take any form of alcohol or dangerous drug during the term of your Probation period.
  

_____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused