State v DM [2018] PGNC 584; N7747 (25 October 2018)

N7747

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 555 OF 2018

THE STATE

V

DM

Kiunga: Koeget, J
2018: 25^th October

CRIMINAL LAW- Indictable offence – Sexual Penetration of a female child under the age of 16 years pursuant to section 229A (1), (2) of the Criminal Code Act chapter 262 (as amended) – sentence on guilty plea – sentence of a youthful offender (juvenile) – sentence wholly suspended subject to conditions attached.

Counsel

Ms. T. Aihi, for the State
J. Kolowe, for the accused.

25^th October, 2018

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Sexual Penetration of a girl under the age of 16 years pursuant to section 229A (1) (2) of the Criminal Code Act (as amended).
   

FACT

2. On 30^th March 2018 between 11 o’clock and 1 o’clock, the accused, a juvenile, went to a creek between Bonat Street and Tabubil Secondary High school as a result of a “nature call” at that location the accused saw the victim “M” aged 5 years in company of a female child and a male child both of similar age. The accused asked the children what they were searching for, the children replied they were chasing birds.
   
3. The accused joined the children and searched for birds. In the course of looking for birds, the accused told the boy to follow the drain up to the road, but allowed the victim and her female friend to remain with him. The victim with her female friend and the accused went through the culvert to the other side. The victim’s female friend was frightened so she left leaving the victim and the accused at that location.
   
4. The State alleges that when the victim and the accused were alone, the accused told the victim to remove her clothes and she obliged. He too removed his clothes and rubbed his erected penis on the victim’s vagina and later penetrated her vagina. He had sex with the victim till he ejaculated sperm in her vagina and on her thighs. The accused dressed up and also told the victim to put on her clothes.
   
5. Both returned following the same track leading to the drain and the road. The relatives of the victim searched and found the victim in company of the accused. He was apprehended by the police at that location.
   

ARRAIGNMENT

6. The accused admitted commission of the offence so he was convicted accordingly.
   

LAW

Section 229A – Sexual Penetration of a child.

“229A. Sexual Penetration of a child.

(a) a person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

(1) if the child is under the age of 12, an offender under sub section (1) is guilty of a crime and is liable, subject to section 19, to imprisonment for life.

Penalty: subject to sub sections (2) and (3), imprisonment for a term not exceeding 25 years.”

PERSONAL PARTICULARS

7. The prisoner is 15 years of age and is in grade 6 at Wangbin Primary school at Tabubil in the Western Province. He was arrested on 3^rd of March 2018 and is in custody.
   

AGGRAVATING FACTORS

8. Such offence is prevalent in the country and in this case the victim is 5 years of age. She experienced mental stress and fear of men and young boys.
   

MITIGATING FACTORS

9. The prisoner is remorseful and in court he apologised to the victim for what he did to her. The prisoner is a first time youthful offender. He admitted to the police the commission of the offense during the conduct of record of interview. In court he pleaded guilty and saved valuable time of court. He also saved the young victim from embarrassment from cross- examination by lawyers before a Judge in the National court. No weapon was used in the commission of the offence.
   
10. The victim has fully recovered from the incident. The prisoner acted alone in the commission of the offence.
    

SENTENCE

11. The prisoner and victim are young children although the prisoner is older than the victim. The victim experienced sex at a very young age. She had a slight tear on the side of her vagina and it has fully healed up.
    
12. The victim is in fear of younger boys and men as well because of the experience she had with the prisoner.
    
13. The prisoner is a first time offender and he is a juvenile.
    
14. A Probation report prepared by the Probation Officer shows that he is an eligible candidate for probation.
    
15. The previous decided cases demonstrated a pattern of sentences ranging from an imprisonment term of 1 year to 11 years.
    
16. In this case the prisoner is a very young offender and so imposition of a lenient sentence would in my view be fair and just.
    
17. The prisoner is sentenced to be imprisoned for a period of 2 years in hard labour. The pre trial custodial period of 10 months and 3 weeks are deducted and the balance of 2 years, 2 months and one week are wholly suspended upon the prisoner’s promise to Keep Peace and be on Good Behaviour Bond for 2 years, 2 months and 1 week.
    
18. The prisoner is to be released from custody forthwith and he shall remain in the custody of his father Mathew Moses.
    
19. Should the prisoner breach any of the conditions he shall be apprehended and brought to court to be dealt with by Court for the suspended portion of the sentence.
    

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused