State v Pongi [2020] PGNC 313; N8527 (20 August 2020)

N8527

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 587 OF 2020

THE STATE
-v-
EZEBI PONGI

Kiunga: Koeget, J
2020: 17^th, 20^th August

CRIMINAL LAW- Indictable offence – Sexual Penetration of a minor pursuant to section 229A (2) of the Code – conviction and sentence on guilty plea – offender a juvenile under the Juvenile Justice Act of 2014 – sentence imposed wholly suspended upon prisoner’s entry of recognisance and promise to keep peace and be of good behaviour bond for duration of the suspended period of the sentence.

Case Cited:

The State v S.E. (2019) N7971
The State v DM (2018) N7747

Counsel:

D. Mark, for the State
B. Popue, for the Accused

20^th August, 2020

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Sexual Penetration of a minor under the age of 12 years pursuant to section 229 A (2) of the Criminal Code Act (as amended).

FACT

2. On the afternoon of 15^th August, 2019 between 12 midday and one o’clock, the victim P.S and two other young girls were returning to their village after attending classes at Matkomnai Primary school near Ningrum sub district of the Western Province.

3. The accused walked ahead and hid in the bushes. As the victim P.S and friends approached him, he came out of the bushes and grabbed the victim and another girl who struggled and escaped leaving the victim.

4. The accused took the victim further into the bush and removed her school uniform, (a pair of shorts) and he inserted his penis into the victim’s vagina. The victim experienced pain in her vagina and struggled till she shrugged the accused off and she stood up, collected her clothes and ran away naked till she met her relative who were alerted by the other girls. She wore her clothes and reported the incident to the relatives. The victim was 10 years of age at the time of the offence.

5. The accused pleaded guilty to the charge upon arraignment. The plea is confirmed as there are admissions in the record of interview between himself and the police investigating officer.

ISSUE

6. The issue to be determined is what is the appropriate sentence the court should impose upon him.

LAW

“Section 229 A – 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 sub sections (2) and (3), imprisonment for a term not exceeding 25 years.

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

PERSON PARTICULARS

7. The prisoner is from Matkomnai village, Ningerum, North Fly District of the Western Province. He was 17 years of age when he committed the offence but now 18 years of age and is a bachelor. He attended Matkomnai Primary school and was in grade 7 when he committed the offence.

8. His father is deceased and he resides with the mother. She is a subsistence gardener.

AGGRAVATING FACTORS

9. Such offence is prevalent in the North Fly District and in the country. The age gap between the prisoner and the victim is seven years. The victim was virgin and sustained injuries to her private parts during the intercourse.

MITIGATING FACTORS

10. The prisoner is a youthful first-time offender. He was 17 years old when he committed the offence and now 18 years. He is to be treated as a juvenile under the provisions of the Juvenile Justice Court of 2014.

11. The prisoner co-operated with the police when he made admissions in the record of interview with the police. In court, he pleaded guilty and saved valuable time of court. He also saved the victim the embarrassment of giving evidence in open court and be subjected to cross-examination by lawyers.

12. No weapon was used to frighten the victim when the offence was committed. The victim did not sustain permanent physical disabilities. She has fully recovered and is well.

SENTENCE

13. The prisoner is older than the victim but both are still young children. The victim was virgin and experienced sex at a very young age. She suffered pain and discomfort during the intercourse but has recovered. Nevertheless, she lives in fear of boys and men because of the experience she had with the prisoner.

14. The prisoner is a first-time youthful offender and is a juvenile under the provisions of the Juvenile Justice Act of 2014. The trend of sentences for juveniles for committing such offences is imprisonment from one year to eleven (11) years in hard labour depending on facts and circumstances of each case.

15. The prisoner is a juvenile and attended Matkomnai Primary school when he committed the offence and a lenient sentence ought to be imposed upon him. So the prisoner is sentenced to be imprisoned for four years in hard labour. The pre-trial custodial period of four months is deducted and the balance of 3 years and 8 months are wholly suspended upon the prisoner entering own recognisance and promise to be on Good Behaviour Bond for 3 years and 8 months.

ORDER

1. Should the prisoner breach the Good Behaviour Bond, he shall be brought to court to be dealt with the suspended part of the sentence.
   
2. The prisoner’s cash bail of K300-00 is ordered to be refunded to him.
   

Accordingly Ordered
________________________________________________________________
Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyers for the Accused