State v Gala [2017] PGNC 220; N6892 (28 July 2017)

N6892

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 115 of 2014

THE STATE

V

DONZIL GALA

Popondetta: Koeget, AJ

2017: 26^th, 28^th July

CRIMINAL LAW-Indictable offence – Sexual Penetration under section 229 A(i) of the Criminal Code Act (as amended) - conviction on guilty plea –sentence wholly suspended on conditions accused enter into recognisance and promise to Keep Peace and be on Good Behaviour Bond – Discretionary powers of Court under section 19(1) (d) (i) of the Criminal Code Act.

FACTS

There existed a boyfriend and girlfriend relationship between the accused and the victim. On 9^th of January 2014, between 3 o’clock and 5 o’clock in the afternoon, the victim and her two sisters walked to the river and along the route the accused met the victim so all went along. The victim and accused went into the near-by bushes while the sisters proceeded to the river. They had consensual sex in the bush.

The victim’s hymen was torn during the intercourse so she bled from the vagina during the intercourse and also after the intercourse. The victim wore her clothes after the intercourse and walked to the river where she met up with her sisters.

When the victim and the sisters returned to their house, she was still bleeding and the parents enquired what happened to her. She fell down unconscious and was taken to the Popondetta Hospital. She told the hospital staff of the sexual encounter she had with the accused that afternoon. She has now fully recovered from the injury and is well.

Case Cited:

The State –v- Anderson Agalie (2016) N6717
The State –v- Aki Laio (2016) N6490

Counsel:

L. Toke, for the State
E. Yavisa and C. Namono, for the Accused

28^th July, 2017

1. KOEGET AJ: INTRODUCTION: The accused is charged with one count of Sexual Penetration pursuant to section 229 A(i) of the Criminal Code Act. The victim was aged twelve (12) years on the date of the offence.

ARRAIGNMENT

2. The accused pleaded guilty to the charge so he was convicted accordingly.

ISSUE

3. The issue for the Court to decide is what is the appropriate sentence the Court should impose upon the prisoner?

LAW

“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),

(2) if the child is under the age of 12 years, an offender against subsection (1) is guilty of a crime and subject to section 19, to imprisonment for life.”

PERSONAL PARTICULARS

4. The prisoner was 13 years old at the time he committed the offence but he is now 16 years old. He attends Martyr’s Memorial High school and is in Grade 10 this year. He resides at the school as a boarding student.

ALLOCATUS

5. In allocutus, the prisoner said:

“I say sorry to the victim and her family. I say sorry to my mother who raised me when my father deserted us and provide no support.”

AGGRAVATING FACTORS:

6. The victim sustained injuries that required medical treatment at the Popondetta General Hospital. Such an offence is prevalent in the province and in the country as well these days.

MITIGATING FACTORS

7. The prisoner pleaded guilty to the charge and saved valuable time of the Court. He is a first time offender. He was a juvenile when he committed the offence. The prisoner and the victim are young offenders and agreed to engage in sexual intercourse that day. The prisoner admitted the commission of the offence to the police in the record of interview. So credits are attached to these factors.

8. He spent two weeks in custody at the Popondetta police station cells before being released on cash bail of K300.00.

SENTENCE:

9. This type of offences are prevalent in Northern Province and in the country as well. The prisoner and the victim were very young when this offence was committed.

10. It is not the worst type of Sexual Penetration case that attracts severe punishment.

11. The prisoner has a future if he continues with his education at Martyr’s Memorial High school so he should be given a chance to continue with that opportunity.

12. The prisoner is sentenced to be imprisoned for one year in hard labour.

13. The pre-trial custodial period of 2 weeks is deducted. The balance of 11 months and 2 weeks are wholly suspended on conditions that the prisoner enters into recognisance and promise to keep peace and be on Good Behaviour Bond for 11 months 2 weeks.

14. Should the prisoner breach the conditions, he shall be brought to the Court to be dealt with the suspended portion of the sentence.

15. The prisoner’s bail money of K300.00 is to be refunded to him.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused