State v Douglas [2019] PGNC 199; N7958 (10 July 2019)

N7958

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 43 OF 2019

THE STATE

V

EVERTIUS DOUGLAS

Alotau: Toliken, J.
2019: 10^th July

CRIMINAL LAW – Sentence – Persistent sexual abuse – Digital penetration of 6 year old victim by 16 year old prisoner – Sentencing principles and objectives of Juvenile Justice Act 2014 considered – Interest and welfare of juvenile paramount – Welfare of juvenile to be balanced with welfare of child victim – Aggravating and mitigating factors considered – Appropriate sentence – 7 years less pre-sentence detention period – Appropriate case for full suspension – Probation with additional conditions – Criminal Code Ch. 262, ss 229A(1; Juvenile Justice Act 2014.

Cases Cited:
Nil

Counsel:

J Apo, for the State
P Palek, for the Prisoner

SENTENCE

10^th July, 2019

1. TOLIKEN, J: Evertius Douglas, on 19^th February 2019, you pleaded guilty to an indictment charging you with one count of persistent sexual abuse of a child. In doing so, you committed an offence under Section 229D of the Criminal Code Ch. 262.
   
2. Section 229D of the Code provides that a person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against a child, is guilty of a crime of persistent sexual abuse of a child. Such conduct may include penetration of a child, sexual touching, indecent acts against a child or abuse of trust.
   
3. If the abuse does not involve penetration, an offender may be sentenced 15 years imprisonment. If, however, penetration is involved, then an offender may be sentenced to life imprisonment subject to the courts discretion under Section 19 of the Code to impose a lesser sentence.
   
4. The brief facts of your case are that on three occasions between the months of January and June 2018 you sexually penetrated the victim child with your fingers. On the first two occasions you found the victim who was 6 years old on the beach at Guga village and inserted your fingers into her vagina. And on the third occasion you found the victim at the river and there you again inserted your fingers into her vagina.
   
5. On these facts and the fact that you sexually penetrated the child, albeit with your fingers instead of your penis, you are liable to be sentenced to life imprisonment.
   
6. If you were an adult when you committed this offence you would indeed be looking down a sentence of life imprisonment. However, you were a juvenile at the time of your offending and the Juvenile Justice Act 2014 (JJA) does not allow a juvenile to be sentenced to life imprisonment or death.
   
7. Notwithstanding that, you have committed a very serious offence and you must be appropriately punished. But again as a juvenile I must take into account the dictates of the JJA say that juveniles must be treated differently from adult offenders. The JJA provides that the interest and welfare of the juvenile must be of paramount consideration. The juvenile must be made to recognize and acknowledge his wrong doing, acknowledge that he has hurt another person and must of course be made to recognize and accept responsibility for his offending and accept the consequences that flow there-from.
   
   8. I must therefore impose a sentence that will achieve the objectives of the JJA so that you are redirected away from your criminal behaviour and change your ways.
      
   9. I take into account that you are a first time offender and that you pleaded guilty very early to your offence. You also co-operated with the police. I also take into account that you come from a dysfunctional family, that your father is mentally infirm and therefore you were deprived of the guidance and support you would have got from him had he been of sound mind. That of course led you to fall into pressure exerted upon you by your peers. I accept your apology.
      
   10. But you need to do better than just apologise to the Court. You ought to make it right with your victim and her relatives whom I am told are also your relatives.
       
   11. I accept also that you did not cause any physical injuries on the victim or infected her with any sexually transmitted infection. I accept also that you are not adequately educated.
       
   12. Against you is the fact that your victim was a child of only 6 years of age. You were 16 years old when you offended hence there was a huge age difference of 10 years. You penetrated her tender body with your fingers, not once, but three times altogether. This was therefore not a one-off incident. What makes your case more serious is the fact that the victim was merely 6 years old which is 10 years below the age of sexual maturity. This is the age where a child is most vulnerable and in need of protection.
       
13. This places your culpability right up to the top and if you were an adult you would be slap with a very stiff sentence.
    
14. I have considered the submissions by both your lawyer and the lawyer for the State and recommendations in the pre-sentence report and I am grateful for their assistance.
    
15. Now this Court has had its fair share of cases of this nature. I need not cite any of these though, but the offenders there were invariably adults. Some have received sentences of 15 – 14 years and some much lower. I am, however, not bound by those sentences because what you should get must be a sentence that must be tailored to fit your case so that you are rehabilitated.
    
16. Now while your interest and welfare must be the paramount consideration, what sets your case apart is the fact that your victim was also a child whose welfare this Court must also take into account. Your victim was a helpless girl of 6 years. And so I must strike a balance between your interest and her welfare and interest.
    
17. While I accept that you are a juvenile your offending against a girl of tender years must be condemned in the strongest possible way which in my view should be way of a custodial sentence. That victim did not deserve to be sexually abused in the manner you did. She is a relative of yours and it goes without saying that even at your age you ought to know that relatives ought to care for each other.
    
18. You have brought shame to yourself and your mother and of course others who are related to you. The girl may not at this time aware of the nature of the abuse she received from you but she will in due time as she grows older. Once she recollects this abuse and defilement there is every chance that this will scar her psychologically for life.
    
19. So, having said all that, I should think that you ought to get a sentence of 7 years imprisonment. I therefore sentence you to 7 years imprisonment less time spent in pre-trial custody.
    
20. There is need to redirect you back from the dangerous path you took and rehabilitate you, and so I will wholly suspended your resultant sentence on the following conditions –
    
    1. You will enter into probation for a period of 5 years with the following additional conditions;
       
       • (i) You will within 3 months from today reconcile with and pay the following as compensation to the victim and her family _
         
         • K2000 cash to be paid to the victim child
         • 1 x live pig valued at K1000
         • 2 x baskets of assorted vegetable @ K30 each = K60
         • 2 x Bales of 20kg Roots Rices = K156.00
         • 1 x 10kg bag of Roots rice = K35.00
         • 1 x bale of 1kg Sugar = K53.55
         • 3 x 6packs Diana Tuna @K13 each = K39
         • 3 x 6 packs of Noodles @12 each = 37.80

Total = K3381.35

(ii) You will not have any personal contact whatsoever with the victim child
(iii) You will not consume any form of intoxicating liquor or smoke marijuana
(iv) You will attend Church Service at the Local Foursquare church at Topa Village every Sunday
(v) You will perform 120 hours of community service at the Topa Primary school under the Supervision of the Head Teacher of Topa Primary School

2. The Provincial CBCO shall facilitate the reconciliation and payment of compensation and file a report to the Court within 2 weeks from the date of reconciliation. Thereafter file progress reports to the court every 6 months.
   

Ordered accordingly.
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner