State v JT ( A Juvenile) [2012] PGNC 347; N4726 (22 June 2012)

N4726

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1132 OF 2011

THE STATE

V

"J. T." (A JUVENILE)

Wabag: Gauli, AJ
2012: 7, 13, 14, 15, 22 June

CRIMINAL LAW – Sentence - Sexual penetration of a child under age of 16, s.229A(1) of the Criminal Code – Plea of guilty – Juvenile offender – First time offender – Consensual sexual intercourse –Boy/girl relationship – No age disparity – Express remorse – Willing to pay compensation – Sentence to 4 years – Sentence wholly suspended and placed on probation

The accused, a juvenile, while intoxicated under liquor grabbed his girlfriend under the age of 16 years at night and sexually penetrated her on a soccer field in Wabag town.

Cases Cited:
Papua New Guinea Cases

The State v. Manga Kinjip [1976] PNGLR 86
Kuri Willie v. The State [1987] PNGLR 298
The State v. Biason Benson Samson (2005) N2684
The State v. Willie Dominic (2005) N3696
Maima v. Sma [1972] PNGLR 49
The State v. Eddie Trosty (2004) N2681

Overseas Cases

Lahey v. Sanderson (1950) Tas. S.R.17

Counsel

Mr. M. Ruari, for the State
Mr Siminji, for the Accused

SENTENCE

22 June, 2012

1. GAULI, AJ: You, "JT", a juvenile offender aged 16 years, pleaded guilty to one count of sexual penetration of a female child age under 16 years, pursuant to section 229A(1) of the Criminal Code Act.
   

Brief Facts

2. On Saturday 27th of August 2011, about 4.30 pm, you "JT" and your friends were drinking alcohol when the victim "DR", a girl aged 15 years, came across you. You called her over and she joined you but she did not drink alcohol. Later you all proceeded down to your father's house and continued to drink alcohol until it got dark. The girl "DR" wanted to go home, so Hamilton, one of the boys who were not drunk, escorted her back. You then followed them to the Mommers Soccer Field, you grabbed her and you sexually penetrated her.
   

Acceptance of the Plea of Guilty

3. You were arraigned and in your plea you said the charge is true. And your lawyer told the court that your plea is consistent with his advice. After considering the facts to which you pleaded guilty to, the Court was satisfied that it is safe to accept your plea of guilty as you have made your plea in plain unambiguous and unmistakable terms: The State v. Manga Kinjip [1976]PNGLR 86, applied.
   

The Law

4. The law in relation to sexual penetration is provided for under s 229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act and is in the following terms:
   

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) 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".

"(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 is liable, subject to Section 19, imprisonment for life".

5. The victim "DR" was 15 years old at the time of the incident. The maximum term of imprisonment applicable is 25 years, pursuant to s.229A (1), but subject to section 19 of the Criminal Code Act and other considerations including your mitigating and aggravating factors and the antecedent reports. At the time you grabbed the victim, she was being escorted by Hamilton to go home. There is no suggestion that you threatened Hamilton at the time. I find that there was a consensual sexual penetration with the victim.
   

Antecedent Reports

6. You have no prior convictions. You are a first time youthful offender.
   

Pre Sentence Report / Means Assessment Report

7. The Community Probation Officer has presented the pre-sentence report of you. That report stated that you are 16 years old, single, and you are a Grade 10 student at Sir Tei Abal Secondary School in Wabag. Your father is a policeman attached to the Mobile Unit based in Wabag. You have no criminal records of prior conviction. The victim and you were in a boy/girl friend relationship since your primary school days up to now. Your parents are willing to pay K1000.00 compensation within 6 months. The victim was interviewed. She confirmed that you were her boyfriend. She is sorry for what happened. She does not want you to be imprisoned. The Probation Officer recommended that you be given a three (3) years probation period with suspended sentence on conditions.
   

Allocutus:

8. Before imposing sentence, you were given the opportunity to address the Court on matters the Court may take into consideration and you said:
   

"She is my girl friend and we have been friends for 5 years. We go around together, this is not the first time. That night I met her and I took her away. I have done wrong so I wish to say sorry to the Court for what I did. I committed an offence against the law of this country. I ask this Court to give me a chance and place me on good behaviour bond or on probation. I am a student in school. After leaving school, my girlfriend and I will live together. That is all".

Mitigating Factors

9. You are 16 years old now. At the time of the incident you were 15 years old so as the victim. There is no age difference between you and the victim. You are a juvenile young offender. You pleaded guilty on the first available opportunity. That saves time and costs for the Court, the State and yourself as well. It also relieved the young victim from coming to testify in court of the event. The victim is your girlfriend at the time of the offence. You cooperated with the police during the investigation.
   

Aggravating Factors

10. You were under the influence of alcohol at the time of the incident. You grabbed her and you sexually penetrated her out in the field at night. She being your girlfriend there was breach of trust by you.
    

Submissions by Defence

11. Your lawyer submitted that you are juvenile first time offender and you have pleaded guilty to a very serious offence. He submitted that youthfulness is a very strong mitigating factor in sentencing and he referred to the case of Lahey v. Sanderson [1959] TASStRp 10; (1959) Tas. S.R. 17 and the case of Kuri Willie v. The State [1987] PNGLR 298. He submitted that this incident was a one on one rape and the victim was not infected with any venereal or sexually transmitted disease nor was she made pregnant as a result of the sexual penetration. This was a one of incident. The only aggravating factor was that you were under the influence of liquor but you did not use any force to achieve your desired result.
    
12. Your lawyer referred to a number of decided cases but the most relevant cases applicable to your case are The State v. Biason Benny Samson (2005) N2799 and The State v. Willie Dominic (2005) N3696. In the first mentioned case, the accused, a 17 year old sexually penetrated a girl aged 13 years under similar circumstance to the present case. The accused was sentenced to 5 years imprisonment. In the second mentioned case, the offender, also 17 years old, sexually penetrated a 14 year old girl. The offender was sentenced to 4 years. In the present case you are now 16 years old and your lawyer submitted that a sentence less than 4 years would be appropriate and that your sentence be wholly suspended and you be placed on probation with conditions.
    

Submissions by the State:

13. The State also referred to a number of decided cases but the cases that are more relevant and applicable to the present case he also referred to are the two cases your lawyer has referred to namely, The State v. Biason Benny Samson (above) and The State v. Willie Dominic (above). The State also referred a case that is much closer to the present case in circumstances, is that of The State v. Eddie Trosty N2581. The accused was a 21 year old man who sexually penetrated a 15 year old girl who was his girl friend. It was a consensual sexual intercourse with no aggravated physical violence. He cooperated with police. He had no prior convictions and he pleaded guilty. He was sentenced to 6 years. The State submitted that in your case a head sentence between 4 to 6 years would be appropriate.
    

Decision of the Court

14. I have considered the submissions from your lawyer and the prosecutor. Their submissions are of great assistant to this Court to arrive at an appropriate sentence to be imposed on you. I have also considered your mitigating and aggravating factors and that you have no prior conviction. Your mitigating factors far outweigh the aggravating factors.
    
15. The penalty this Court may impose on you for the offence you have been charged with is a term of imprisonment not exceeding 25 years since the victim was between 12 and 16 years at the time of the offence. It is a trite law that the maximum term of imprisonment is reserved for the worst type of cases: see Maima v. Sma [1972] PNGLR 49.
    
16. Sending a young offender like you to prison is likely to expose you to corruptive influences which defeat the very purposes of reforming or rehabilitating the young offenders: Lahey v. Sanderson [1959] TASStRp 10; (1959) Tas. S.R. 17, applied. Imprisonment does not always reform young offenders. The court need to look at other alternative means apart from imprisonment that would enable a young offender to reform from his or her wrong ways. Imprisonment should be the last resort in sentencing first time young offenders. In Kuri Willie v. The State [1987] PNGLR 298, His Honour Hinchliff J, said:
    

"Where a youthful first offenders are to be sentenced the court should treat imprisonment as a last resort and should investigate alternatives to imprisonment before sentencing".

17. This Court is vested with considerable discretionary powers to impose either the maximum penalty or a lesser penalty than the maximum or may impose a fine instead of imprisonment or to impose non-custodial sentence including entering into a recognizance with or without surety, or to discharge the offender without sentencing. The Court has these sentencing powers given to it by virtue of section 19 (1) (a) - (d) of the Criminal Code.
    
18. This Court also has the power under section 16 (2) of the Probation Act that by probation order, the court after imposing a sentence may suspend the sentence or defer the sentence and release the offender on probation for a specific period not less than 6 months and not more than 5 years with conditions pursuant to section 17 (1) of the said Act.
    
19. Your case falls in the same category as that of The State v. Biason Benny Samson (supra), The State v. Willie Dominic (supra) and The State v. Eddie Trosty (supra). In the case of Eddie Trosty (supra), there was an age difference of 6 years between the accused and the victim. In the other two mentioned cases, there was an age difference of 4 and 3 years respectively. In your case you and the victim were of the same age and there is no age difference between the two of you.
    
20. Your parents are willing to compensate the victim. Your father earns a fortnightly income of K300.00 and I consider that the commitment he is undertaking is taken to be a form of punishment on you. It is also your desire that when you leave school you want the victim to live with you as your partner. I also take into consideration of your mitigating and aggravating factors.
    
21. Having considered all that I have stated above including the sentences imposed on the decided cases cited, I find that the appropriate sentence to be imposed on you is a term of imprisonment of 4 years. The Probation Officer has recommended that you are a suitable candidate for probation supervision and I do appreciate it. That being the position in your case, I suspend the whole of your sentence and place you on probation with conditions.
    

Orders of the Court

1. You are convicted and sentenced to 4 years imprisonment.
   
2. Your time in custody of Five (5) days is deducted.
   
3. The balance of your sentence (3 Years 11 Months and 25 Days) is wholly suspended and you are released on Probation for a period of 2 years on the following conditions:
   
   • (1) You are to remain at Lai Barracks in Wabag Town with your parents until you are contacted by the Probation Officer Mr. Andrew Rai.
     
   • (2) You are to report to the Probation Officer as and when he requires you.
     
   • (3) You are to keep the peace and be of good behaviour for the period of your probation without surety.
     
   • (4) You must not commit any offence during your probation period.
     
   • (5) You shall not change your residential address other than the address referred in Paragraph 2 (1) above.
     
   • (6) Should you intend to change your address you must give the Probation Officer reasonable notice within 48 hours.
     
   • (7) You shall allow the Probation Officer to enter your home during reasonable hours.
     
   • (8) You are restrained from consuming any form of alcohol for the duration of you probation.
     
   • (9) You are restrained from having any physical contact with the victim for the duration of your probation period.
     
   • (10) You are to pay K1000.00 compensation to the victim within 6 months from the date of the entry of this Order.
     
   • (11) Your K400.00 bail money to be paid as part-payment towards your compensation to the victim.
     
4. Should you breach any of these conditions, you will be arrested and you will serve your term of the sentence in prison.

____________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender