State v Labu [2017] PGNC 334; N7029 (4 July 2017)

N7029

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1070 OF 1998

THE STATE

V

BERNARD LABU

Kimbe: Miviri AJ

2017 : 4^th July

CRIMINAL LAW- Plea-attempt UCK S216 (1) (a) old CCA- outstanding 1998 bench warrant rearrested- victim 12 years old-Prisoner 20 years old-attempted penetration ejaculated-readily admitted to police-PSR and MAR in favour of Prisoner-2 years IHL suspended on 12 months GBB.

Facts

Defendant got victim a 12 old girl to collect fish he speared. Along the beach asked her to have sexual intercourse with him. She agreed removed her panties to the side. He proceeded to try and penetrate. Did not succeed so rubbed his penis around the vagina and ejaculated. Matter was reported to Police and defendant was arrested.

Held
Convicted of Attempted Unlawful Carnal Knowledge under 16 years old.
2 years IHL wholly suspended on 12 months GBB.
Bail refunded forthwith.

Cases cited:

Apusa v The State [1988-89] PNGLR 170

Counsel:
R. Luman, for the State

B Popeu, for the Defendant

DECISION ON SENTENCE

2^nd August, 2017

1. MIVIRI AJ: The long arm of the law finally caught up with a 20 year old man then in 1998 for his crime of attempted unlawful carnal knowledge of a girl under 16 years old. This is the sentence of that crime.
   

Facts on Arraignment

2. In 1998 Bernard Labu was 20 years old and his victim CP was 12 years old. I will use the initial CP to refer to the victim who is now settled in life. Together both were fishing along the sea front on the morning of the 8^th July 1998. Bernard asked CP to have sexual intercourse and she obliged both went under a tree where he unsuccessfully tried to penetrate her vaginally and ejaculated outside. They were seen by another child who reported to the parents who reported to Police.
   
3. He has pleaded guilty to the charge laid under the old Criminal Code Section 216 (I) (a) of attempted unlawful carnal knowledge of a girl under 16 years old. As that was the law then and under which he was charged.
   

Issue

4. What is an appropriate sentence for him?
   

Law

5. Section 216 (1) (a) read, defilement of girls under 16 and of idiots.
   
   • (1) A person who------
   • (a) Has or attempts to have unlawful carnal knowledge of a girl under the age of 16 years; or
   • (b) .....................

Is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding 5 years.

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

(3).......................

(4).......................

Applied to Facts

6. The maximum penalty for the crime is a term not exceeding 5 years in hard labour. Certainly the facts here do not depict that the maximum penalty be imposed upon the prisoner. Instead a term of years is imposed taking into account that he has pleaded guilty saving what would have been a very embarrassing and humiliating matter for the victim CP who has now settled in life. I take special note of the victim impact statement that she made at the time of this judgement that she was happily settled down in life and voiced that she had her father receive the pig and the compensation that Prisoner paid. She has nothing against the prisoner and left the matter to the hands of the court.
   
7. The facts of the case are that the prisoner asked and the victim obliged he attempted to insert his penis into her vagina but could not penetrate so rubbed around her vagina and ejaculated. From the evidence of Edmund Keu it would appear that the matter was consensual. But an offence in law in view of the age of the victim. He was 20 years old in 8^th July 1998 and she was 12 years old. Both are notably raising their own families and live very good lives now.
   
8. His background is well set out in the Presentence report placed before me together with the means assessment report which has been well prepared by Probation officer Christine Robe who has despite problems of logistics within that office presented and filed a very good report to help the court in determining an appropriate sentence. The reports are both in favour of the Prisoner for a non-custodial term and also that he has paid some compensation initially received by the parents of the victim, particulars of which I set out under.
   
9. He is now 36 years old married to Jacklyne and both have 5 children. The victim is also married now and lives at a location away from the village of Gavaiva where they are both from. It is 19 years since and she is now 31 years old married and has a life to live. In her supplementary report on the 15^th June 2017 she was aware of the compensation payment which was paid to her father including a pig that was shared with all relatives. The report confirmed that K500, 2 bales of rice 2 baskets of garden food and shell money were paid in March 2017 by the defendant to the father of the victim who accepted the compensation paid. Importantly she said the matter happened a long time ago she left that matter to the discretion of the court. Her father was content with sentence outside and he had no grudges with the Prisoner. The Catholic Church of Valoka headed by the Catechist Charles Sauli together with the youth president of the Catholic Youth gave very positive remarks on the Prisoner as an active parish member of the church there.
   
10. The initial probation report did not have her views in it and I directed that her views be also presented as she was the victim in the case that it was important that her views were also heard so that I was balanced both ways to give the appropriate sentence thereafter.
    
11. Since the commission of the offence up to now the date of this judgement on sentence the Prisoner has shown excellence and up keep in his life. He is now a mature man settled in life. So much so that he has demonstrated qualities that show that he has realized where he has gone wrong. And has since repaired his relationship with the community where he hails from with the victim and her family and the general community. He is now a matured married man with five children who are dependent on him as their father and a wife to their mother. This is evidently produced by probation and means assessment report. All credit to the tireless work of the probation officer there despite hardship in logistics not forth coming from Waigani.
    
12. A wrong he has admitted readily saving the girl to come now because it is would have been embarrassing for her since she has since married and has settled down in life. This is a significant factor in his favour and which due weight will be given in the sentence that is passed upon him. The prisoner has done likewise and is affluent in his local Catholic Church community of Valoka confirmed by the father of the victim Paul Lakelo, the Catechist of Valoka Parish Hoskins Charles Sauli and the Youth President Gavaiva Catholic youth Valoka Parish Steven Gela.
    
13. He was a young 20 year old and she was 12 years old the age gap was 8 years apart. There was no weapon used nor was there evidence of any injury as a result of the act permanent and lasting. Consistent with his attempt there was bruises around the vagina hymen was intact report made by the nursing officer at Valoka health centre. He pleaded guilty and has paid compensation even without waiting for any orders of the court. And the compensation is substantial for a village man in his standing particulars of which I set out above.
    
14. His case would fall into the initial category discussed by Brunton AJ in the case of Apusa, The State v [1988-89] PNGLR 170:
    

“Acts of sexual intercourse under s 216 in the lower portion of the permissible range would be those offences committed by young men on girls who are between 14 and 16 years old. When dealing with young offenders the discretions under s 19(1)(f) of the Criminal Code and the Probation Act (Ch No 381) are always relevant, and there may be cases where it is not appropriate to proceed to conviction, but simply to discharge. This is so, in my view, where young participants are involved in those societies of Papua New Guinea in which heavy courting is the norm, and the custom allows a certain amount of sexual licence amongst youngsters, even though older people may formally remonstrate and express moral indignation. Another circumstance which could lead to a discharge without conviction is where the offender is disabled or physically or mentally handicapped and the victim was a consenting party. In summary, the lower portion of the range would go up to about 20 months; the middle of the range would be between about 20 months and 40 months; and the upper portion of the range would be between 40 months and 60 months.”

15. Further the mitigation outweighs the aggravation. There are no extenuating circumstances warranting further incarcerations of the Prisoner. There are no facts and evidence placed before me to warrant that he be placed on probation orders with conditions for compensation. He has of his own volition done that effectively without supervision and orders. It shows his acceptance of the matter and of his maturity. This is evidence of him taking responsibility personally to settle relationship in the community with the victim and her family. Given all these facts and circumstances that have been laid out before me, I consider that the exercise of my sentencing discretion would be to impose a sentence of 2 years IHL and to suspend that wholly on 12 months GBB. And I consider that sentence as proportionate to the gravity of the offence bearing in mind all facts circumstances for and against. Justice of the case would be best served by these orders that I so make.
    
16. According I sentence you Bernard Labu to 2 years IHL. I suspend that entire sentence on 12 months GBB on condition that;-
    

(1) You shall keep the peace and be of good behaviour at all times;

(2) You shall not take liquor or any form of intoxicating substance or drug

Orders Accordingly,

Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Defendant