State v DP (Juvenile) [2020] PGNC 497; N9270 (22 April 2020)

N9270

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 937 OF 2019

BETWEEN:
THE STATE

AND:
DP (Juvenile)

Waigani: Salika, CJ
2020: 17^th February, 12^th March & 22^nd April

CRIMINAL LAW – Practice and Procedure – Plea of Guilty – Juvenile Offender – What is appropriate Sentence – Circumstances of case dismissed – term of 6 years imprisonment imposed – to be served at a Child Remand Center.

Cases Cited:
Goli Golu v The State [1979] PNGLR 653
Ure Hane v The State [1984] PNGLR 105
Lawrence Simbe v The State [1994] PNGLR 38
Steven Loke Ume & others v The State (2006) SC836
State v Thomas Pipon [1988-89] PNGLR 179
State v Iori Veraga (2005) N2921

Counsel:
Ms E Kave, for the State
Ms A Peter, for the Accused

22^nd April, 2020

1. SALIKA CJ: INTRODUCTION: The prisoner in this matter is 16 years old now. At the time of the commission of the offence he was 15 years old. He is therefore a juvenile under s.2 of the Juvenile Justice Act.
   
2. He pleaded guilty to a very serious offence namely Persistent Sexual Abuse of a 7-year old child, a charge laid under s.229D (1) and (6) of the Criminal Code Act as amended chapter No. 262.
   

Facts

3. The facts he was arraigned on and to which he pleaded guilty to are these:
   

The victim and the accused are related to each other in that the accused is the victim’s mother’s cousin brother.

It was alleged that the sexual abuse of the victim child, Trisholis Bagelo took place over a period of time from an unknown date in January 2018 to an unknown date in January 2019. The victim had been taken by the accused parents to spend the holidays with them at their family home at Tanatana Street, East Boroko in Port Moresby and the alleged incident took place during this time.

It was alleged that the first incident occurred one night on an unknown date in January 2018. The victim had gone to spend the holidays with the accused family and one night when the victim was asleep with the accused in the room, she felt something being put in her bum and she woke up and saw the accused who quickly put his penis back into his trousers, got up and went back to his bed.

It was further alleged that the other incidents occurred sometime on unknown dates in January 2019 when again the victim was taken by the accused parents to spend holidays with them.

It was alleged that on an unknown date between the 1^st of January 2019 and the 31^st of January 2019, the victim was in the bathroom and the accused walked into the bathroom and touched her bum.

On another occasion in that same period of time, the accused followed the victim into the bedroom after she came out of the bathroom, removed her towel and licked her vagina. He then told the victim that they were best friends and that she shouldn’t tell anyone. The victim told the accused that they were not friends and then put on her clothes.

This continued for some time. The final incident occurred when the family went to a hotel. It was alleged that the accused went to the victim who was in the hotel room when the adults were outside, and he put his hand into her trousers/shorts and touched her bum all the way to her vagina.

The incident came to light when the victim returned to her parents’ home and her mother noticed that her daughter was not acting the same and questioned her. She told the mother what the accused had done to her and a complaint was laid with the police.

The State says that the actions of the accused in persistently sexually abusing the victim was unlawful and therefore breached s.229D (1) and (6) of the Criminal Code Act Ch.262.

Issue

4. The issue before the Court now is to consider and determine the appropriate sentence to impose on him.
   

The Law

5. The Criminal Code (Sexual Offence and Crimes Against Children) Act 2002, S229D says:
   
   • (1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent abuse of a child.

Penalty: Subject to subsection (6), imprisonment for a term, not exceeding 15 years.

(2) If one or more of the occasions involved an act of penetration, an offender against subsection (1) is guilty of a crime and is liable, subject to s.19, to life imprisonment.

6. The maximum penalty prescribed by law in this case is life imprisonment, subject to S19 of the Criminal Code Act. Section 19 of the Code gives the Court the discretion to impose a lesser penalty than the maximum prescribed. The maximum penalties are usually reserved for the worst offences in the category of offences the prisoner is charged with. See Goli Golu v The State (1979) PNGLR 653 and Ure Hane v The State (1984) PNGLR 105.
   
7. The Supreme Court in Lawrence Simbe v The State (1994) PNGLR 38 said that when determining a sentence each and every case should be decided upon on its own peculiar facts and circumstances. Sitting as a National Court, I, with respect, agree, with that proposition and I am bound by the Supreme Court decision as a superior Court.
   
8. In Steven Loke Ume & others v The State (2006) SC836, the Supreme Court said:
   

“In exercising of its sentencing discretion, the Court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors. The Court must then balance these factors and determine the punishment which fits the particular crime.”

9. Again, with respect I agree with that proposition of the law and the National Court is bound by the pronouncement of the Supreme Court.
   

Mitigating Factors.

10. The following mitigating facts are noted and taken into account:
    
    1. First time offender
    2. Pleaded guilty to the very serious charge
    3. Admitted offence early
    4. He is a juvenile offender

Aggravating Factors

11. The following aggravating factors are noted and taken into account:
    
    1. The offending was persistent and occurred over a period of time
    2. The offender was in a position of trust and authority being the uncle of the victim.
    3. There was preplanning involved.
    4. The victim was only 7 years old then.
    5. The age gap between the victim and the offender is 9 years.
    6. The offending was committed in the house of the offender and in a hotel room.
    7. Family relationships between the victim’s family and the offender’s family is adversely affected.
       

Extenuating Factors

12. The Supreme Court in Steven Loke Ume & Ors v The State SC836 defined what extenuating factors are and said:
    

“the particular circumstances in which the offence was committed that have the effect or diminishing the gravity of an offence.”

13. With respect this is the accepted principle of law which has the effect of diminishing the gravity of an offence. In this case no such factors were submitted to the Court to have existed. I could not find any myself.
    

Allocutus Statements

14. On allocutus the juvenile offender said:
    

“I say sorry to the victim and her parents, relatives and the Court. I say sorry to my parents and I say sorry to my God.”

PRESENTENCE REPORT BY PROBATION SERVICE

15. The pre-sentence report was compiled by the Probation Service on 2^nd March 2020. The offender and his family now live at Ilimo Avenue, Boroko, Port Moresby, National Capital District. The offender is in Grade 9 at the Butuka Academy Secondary School at Sabama, NCD. The report further says the prisoner is healthy and is a Seventh Day Adventist Church goer at the Korobosea SDA Church and attends the church’s Pathfinder Program.
    
16. The report also says that the offender was asked about the circumstances of the offence and his answer was that what is stated in the police file was correct and that it was true. He told the probation officer that he sexually abused the victim four (4) times.
    
17. The offender attributed this conduct to watching pornographic movies. The report says the offender started watching pornographic movies when he was doing grade 8 at Bavaroko Primary School. He told the probation officer that at Bavaroko Primary School, him and 5 of his male school friends would watch the pornographic movies on one of his friends’ mobile phone at school, during lunch breaks and after school.
    
18. To me, with respect, with the advent of smart phones, this is a trend which is already in existence in primary schools and high schools in the National Capital District and perhaps the entire country. Education authorities need to check this out with the view to stopping the growth of such activities in schools. This is a dangerous trend in my respectful opinion.
    
19. The Probation Officer also reported on the feelings of the victim’s parents and the pain they are going through as a result of the ordeal their young now 8 year old girl had gone through. The parents of the victim child report that they are traumatized by this incident and that their 8-year-old girl is also traumatized. They reported that the victim child does not want to get on the school bus for drop offs and does not want to be around any male at school and at home. The parents of the victim say that one of the main distressing features of the offence was that when the offender’s parents found out they talked to the 7 year old victim and told her not to tell her parents about what the offender did to her. The parents of the victim child are asking the question; did the parents of the offender want the offender to keep abusing the child? Was that why they did not want the victim to tell her parents about the incident? The attitude of the offender’s parents in my respectful opinion is a cause for concern. What were they doing by their conduct?
    
20. The probation report says the offender is a suitable candidate for probation supervision because he is a first time offender, he is still in school doing grade 9 at the Butuka Academy Secondary School and that the offender is not a threat to the community and others. With respect I cannot be 100% certain of that assessment especially when his parents are prepared to hide the incident under the carpet.
    
21. I have considered the recommendation of the Probation Officer and the Juvenile Justice Officer. The Recommendations are consistent with Sections 5 and 6 of the Juvenile Justice Act 2014. Section 5 of the Juvenile Justice Act say:
    

5. Objectives of the Act.

The objectives of this Act are —

(a) to establish the basis for the administration of a comprehensive and separate juvenile justice system based on the principles of restorative justice, melanesian tradition and contemporary juvenile justice practices; and

(b) to establish a code for dealing with juveniles charged with or alleged to have committed an offence; and

(c)to ensure that the rights of juveniles charged with or alleged to have committed an offence are fully respected and protected; and

(d)to provide for the jurisdiction and proceedings of courts dealing with juveniles; and

(e) to recognise and reinforce, in accordance with the Constitution, the role of the family unit as the fundamental basis of society, and in particular the importance of involving parents, families, victims and communities in juvenile justice processes in order to encourage :-

(i) the rehabilitation of juveniles who commit offences; and

(ii the reintegration of juveniles who commit offences into the community; and

(f) to promote co-operation between all government departments and agencies, and other organisations, agencies and civil society groups involved in implementing an effective juvenile justice system.

Section 6 of the Act says:

6. General principles.

A Court or person exercising a power or performing a function in accordance with this Act is to be guided by the following principles:

(a)because of their youth and vulnerability, special considerations apply in respect to proceedings against juveniles, and —

(i) at all stages, the criminal justice system for juveniles must be separate from that of adults; and

(ii) juveniles are entitled to enhanced protections to ensure that they are treated fairly and that their rights are respected; and

(b) in all actions concerning a juvenile, the best interests of the juvenile are the primary consideration; and

(c)a juvenile must, as far as possible, be given an opportunity to express his or her views before any decision affecting the juvenile is taken; and

(d)a juvenile is to be addressed in a manner appropriate to his or her age and intellectual development and is to be spoken to in his or her language of choice, through an interpreter if necessary; and

(e)a juvenile is to be treated in a manner which takes into account his or her cultural values and beliefs; and

(f) all procedures under this Act or any other law in respect of a juvenile are to be conducted and completed speedily; and

(g)a juvenile being dealt with under this Act or any other law is to have access to legal and other support services; and

(h)parents of a juvenile have the right to assist him or her in proceedings under this Act or any other law, and, if possible, to participate in decisions affecting the juvenile; and

(i) unless the interests of justice require otherwise, criminal proceedings are not to be instituted against a juvenile if there is an alternative means of dealing with the matter; and

(j) while juveniles must be held accountable for their actions, this should be done in a manner that —

(i) emphasises rehabilitation and reintegration; and

(ii) recognises their lack of maturity and limited capacity to understand the consequences of their actions; and

(iii) deals with each juvenile in an individualised way; and

(k) all consequences arising from the commission of an offence must be proportionate to the circumstances of the juvenile, the nature of the offence, and the interests of society; and

(l) within the limits of fair and proportional accountability, measures taken against a juvenile are to —

(i) reinforce respect for societal values; and

(ii) encourage repair of harm done to victims and the community; and

(iii) if appropriate, involve parents, family, the community and other agencies in the juvenile's rehabilitation and reintegration; and

(m)parents, family members and other role models are to be encouraged to support juveniles in taking responsibility for their actions and to promote responsible behaviour in the future; and

(n)a juvenile is to be detained in custody for an offence (whether on arrest, in remand or under sentence) as a measure of last resort, and for the shortest period of time necessary; and

(o)in order to avoid labelling and stigma, the dignity and privacy of juveniles shall be respected at all times; and

(p)female juveniles who are in conflict with the law are particularly vulnerable and require special protections, and special attention is to be paid to their particular needs and problems at all stages of the juvenile justice system.

22. To generate some discussions relating to sentencing in relation to juvenile offenders, this is what the Criminal Code says in relation to persons who are of immature age. Section 30 of the Code says:
    

30. Immature age.

(1) A person under the age of seven years is not criminally responsible for any act or omission.

(2) A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

23. In contrast to the Criminal Code the Juvenile Justice Act Section 3 says:
    

3. Application and criminal capacity.

(1) Notwithstanding any other Act or law, this Act applies to a person who—

(a) is charged with or alleged to have committed an offence; and

(b) is under the age of 18 years at the time of the alleged commission of the offence.

(2) If a child is under the age of 10 years at the time of the alleged commission of an offence, the child is not criminally responsible for any act or omission.

24. A significant difference is noted in the two provisions. Moreover, the Juvenile Justice Act s.2 defines “Juvenile” to mean a person who is, or appears to be 10 years old or older, but less than 18 years old.
    
25. Under the Criminal Code Act, the age bracket is 14 years-for a person not to be criminally responsible or any act or omission, unless it is proved that at the time of doing the act or making the omission he had the capacity to know that he ought not do the act or omission. Section 6 of the Juvenile Justice Act probably captures in a general way what s30 of the Criminal Code Act specifically states. For instance, s30 of the Criminal Code Act first assumes that persons15 years old and over are criminally responsible for any act or omission and secondly meaning in my respectful opinion, that they had the capacity to know that what they were doing was wrong. See R v Bradley (1948) No 5 176 cited in Criminal Law and Practice of Papua New Guinea by Chalmers, Weisbrot, Injia and Andrew, Third Edition.
    
26. The Juvenile Justice Act s6 generally in my respectful opinion summaries and assumes that Juveniles do not have the full capacity to know that what they are doing is wrong, and therefore they should be treated accordingly as juveniles and not as adults. I accept that general statement in that some children or juveniles do easily make rash decisions only to regret them later. It is part of growing up. However, I will not, with respect, easily accept a behavior that is planned and willed and executed. To me that is behavior that is purposed intentional and knowing that it was wrong to put his penis into the 7 year olds bum and to lick her vagina, let alone knowing that the little girl is his niece.
    
27. Brunton AJ (as he then was), in State v Thomas Pipon (1988-89) PNGLR 179, when considering an appropriate sentence for the offence under s213 of the Criminal Code Act (defilement of girls under 12 years) said this:
    
    1. Defilement is not just a repugnant, offensive and unnatural offence against a particular child, but maybe also seen as part of a wider oppressive structure. Sentencing policy needs not only “to protect the public and in particular, “young girls”, but also to address the offence in the social context.
    2. Because the offence involves unlawful sexual intercourse and a maximum term of life imprisonment, the principles of sentencing for the offence of rape should be applied. This is particularly to where consent is not present.
    3. On a plea of not guilty where the accused is mature and there are no aggravating or mitigating circumstances, a sentence of five years should be taken as the starting point.
    4. Where the age gap between the victim and accused is narrow, a sentence appropriate to a juvenile offender may be appropriate.
    5. The actual sentence imposed may vary depending on the facts such as the frequency of the acts the duration of the relationship and whether or not any permanent physical or psychological damage has been done to the victim or the family.
    6. The sentence may be increased for aggravating circumstances such as offences committed over a long period of time, offences where the accused is pathologically driven to sex with young children resulting in pregnancy, the infliction of sexually transmitted diseases and offences involving very young children; any of the above in combination with the status of the accused as a person in loco parents to a child, or to whom the child gives the complete trust, acts of group sex involving children and a number of adults; and organized child prostitution (including child conspirators, aiders, abettors and counsellors.)
       
28. I echo similar sentiments to Brunton AJ (as he then was). In this regard I note that the Juvenile Justice Act is only concerned about the welfare of the offending juveniles who come face to face with the law. Nowhere in the Act does it give any consideration to the welfare of a “baby victim” for want of better words to describe victim children below 10 years old. Children over 10 years old are juveniles. What would be the appropriate name for victim children say 5 years to 9 years. Nowhere in the Act does it address the welfare of baby victims and juvenile victims.
    
29. Just like carnal knowledge of girls under 12 years old, engaging in persistent sexual abuse of a child under the age of 12 years(in this case victim is 7 years old) it is not just a repugnant, offensive and unnatural offence against a 7 year old child, but it must also be seen as an unnatural offence and seen as part of a wider oppressive structure. I agree, with respect too, that the sentencing policy needs not only to “protect the public but victims of such, in particular young girls, but also to address the offence in its social context”.
    
30. I am very aware that the sentence the Court imposes on the Juvenile must befit the offence and its seriousness and the degree of culpability. The word “culpability” is defined by Oxford Advanced Learners Dictionary-8^th edition as “responsible and deserving blame for having done something wrong.”. Wikipedia describes culpability as “responsibility for a fault or wrong”. It has the similar meaning as guilt, blame, accountability, liability and responsibility. Culpability would include intention, motive and the factors that led the offender to commit the offence.
    
31. In this case the offender voluntarily allowed himself to watch pornographic movies from a school mate’s smart phone during school breaks including lunch breaks. That got him on to an exploratory mode and what better victim than his 7 year old innocent but vulnerable niece. It could be said on his behalf that his state of mind was clouded by his imagination of what he had watched and seen on his school mate’s smart phone. How long he was involved in watching pornographic movies on his school mates’ smart phone is not stated but it would seem that after however long of watching, he decided that it was time to put into action what he was seeing. He picked his 7 year old niece to do his trial runs, she was to be the “guinea pig”. To me with respect, his conduct and actions from then on became deliberate. His explanation for his conduct is that he watched the pornographic videos and movies on a smartphone and decided he wanted to experiment the same conduct. His state of mind was placed and fixed in a position to sexually abuse the victim. His actions were therefore intentional and reckless because to have sex albeit oral sex with a 7 year old “baby” with respect is not natural.
    
32. No wonder the victims parents are traumatized by this event. The events began in January 2018 and were finally brought to light in January 2019 – a period of one year. During that encounter the offender told the 7 year old girl that he was her “best friend” and not to tell anyone about what was happening. The offender in other words had started a “good thing” and he was not about to put a stop to it sometime sooner or later. The offenders conduct was such that he was going to take the victim and her baby body for the long term. The evil power dynamics of the offender was set in his mind to experiment on someone so young and naïve. To me, with respect, this is sickening.
    
33. The victim’s parents are worried for their young child. I am not sure about the extent of the emotional and psychological impact of the incident on the victim in the immediate and long term future her well-being, education and prospects for the future is not known at this stage. This should be borne in my mind in considering the appropriate sentence.
    
34. Sakora J in the State v Iori Veraga (2005) N2921 said:
    

“Purposes for which a sentence may be imposed can be summarized as follows;

• to punish the offender to an extent or in a way that is just in all the circumstances, the retributive purpose, justified by the fact that he has done wrong and deserves to be punished for it; or
• Because punishment will ensure that he and others do not commit like offences in the future (individual and general deterrence); or
• Because he will learn from his punishment the folly of his way (reformation); or
• Simply to keep him out of harm’s way, in confinement, out of circulation, as it were (for the protection of the public).
  

35. With respect, I subscribe to the list of the purposes for sentencing as I agree with them. Those are in my opinion consistent with s76 of the Juvenile Justice Act which says:
    

76. Purpose and principles of sentencing.

(1) The purposes of sentencing a juvenile are to —

(a) encourage the juvenile to understand the consequences of and be accountable for the harm caused by his or her actions; and

(b) promote an individual response which is appropriate to the juvenile's circumstances and proportionate to the circumstances surrounding the offence; and

(c) promote the rehabilitation and reintegration of the juvenile into the family and community; and

(d) ensure protection of the public.

(2) A Court that imposes a sentence on a juvenile shall determine the sentence in accordance with the principles set out in Section 6 and the following principles:

(a) the sentence shall be proportionate to the seriousness of the offence and the degree of responsibility of the juvenile for that offence; and

(b) the sentence shall —

(i) be the least restrictive sentence that is capable of achieving the purposes set out in Subsection (1); and

(ii) be the one that is most likely to rehabilitate the juvenile and reintegrate him or her into society; and

(iii) promote a sense of responsibility in the juvenile, and an acknowledgement of the harm done to the victim and the community; and

(c) the sentence shall have regard to the juvenile's age and limited capacity to appreciate the consequences of his or her actions; and

(d) the sentence shall not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; and

(e) if appropriate, juveniles shall be permitted to remain in the community; and

(f) deprivation of liberty shall be used only as a measure of last resort, for the shortest period necessary to achieve the purposes set out in Subsection (1).

36. I am mindful of the provision of s.77 of the Juvenile Justice Act which says:

77. Factors to consider when sentencing juveniles.

(1) In determining a sentence to be imposed on a juvenile, a Court shall take into account —

(a) the seriousness of the offence and the circumstances in which it was committed; and

(b) the degree of participation of the juvenile in the commission of the offence; and

(c) the harm done to the victim and whether it was intentional or reasonably foreseeable; and

(d) the age, maturity, education, health, character and attitude of the juvenile; and

(e) the juvenile's previous history in respect of offences and his or her responses to previous orders in relation to those offences; and

(f) the community services and facilities that are available to assist the juvenile and his or her willingness to use those services or facilities; and

(g) any proposals that the juvenile or his or her parents may put forward for the future improvement of the juvenile; and

(h) any views of a juvenile justice officer in relation to the juvenile; and

(i) any views of any person who is involved in the education or custody of the juvenile; and

(j) information contained in a pre-sentencing report; and

(k) any sentencing recommendations made by a community based conference; and

(l) any time spent by the juvenile in custody on remand in relation to the offence; and

(m) any other factor that the Court considers relevant.

(2) In determining a sentence to be imposed on a juvenile, a Court is not, having regard to the need for an individualised approach to juvenile sentencing, strictly bound by precedent.

37. I have considered the provisions of s76 and s77 of the Juvenile Justice Act. I consider the provisions to be relevant and appropriate because the Court is dealing with a juvenile. A Juvenile is described by the Oxford Advanced Learners Dictionary as “connected with young people who are not yet adults (adjective), a young person who is not yet an adult” (noun). Juveniles will do silly things and have juvenile or childish behavior. Is persistent sexual abuse of a 7 year old considered to be juvenile or childish behavior? Is inserting ones tongue into the vagina of a 7 year old child, juvenile or childish behavior? With respect, God forbid this, this is not juvenile or childish behavior. To the contrary with respect it is abnormal conduct and behavior. It is not normal for children to persistently sexually abuse other children.
    
38. To me, with respect the welfare and interest of the victim appears to be the least of the concerns of the law and the State. After having gone through the indignity of the persistent sexual assaults, the victim is immediately forgotten but the offender is given all the assistance by the law and the State to go back to his family and pretend nothing serious happened and that all is good and that he can enjoy life.
    
39. The juvenile committed a very serious crime, the punishment for which is life imprisonment subject to s.19 of the Code. The commission of the offence was not a chance opportunity one, it was calculated and a planned offence, committed over a period of 1 year and was persistent. When I see the photograph of the victim on file, as she innocently points out to the police photographer where the abuse took place, I cannot help but to console myself how inconsiderate the offender was to her.
    
40. She is his niece. He therefore is and was in a position of trust and authority to take good care of her and be a “small father” to her. Alas, this was not the case here.
    
41. The pre-sentence report says the juvenile offender is now 16 years old and that he is an “active member” of Korobosea SDA Pathfinder Club and that this year he will be in the Pathfinder Guide class. The Seventh Day Adventist Church each year runs Pathfinder Class Activities in many of its’ local churches to mould and grow young people between 10 years old to 15 years old to positions of leadership, trust and responsibility. Having been a teacher myself in the Pathfinding activities, I wonder what happened to the teachings of the Pathfinder Clubs. The anthem goes like this:
    

“We are the Pathfinders

Tomorrow’s in our hands

In a world of problems

We gonna make a stand

We are the Pathfinders, believe us when we say

We are headed in the right direction

Cos Jesus leads the way”

42. What happened to the teachings of doctrines of the church in its Pathfinder classes? What has happened to the Aim, the Motto, The Pledge and the Law that the church teaches. The Pathfinder pledge reads like this:
    

“By the grace of God

I will be pure and kind and true

I will keep the Pathfinder law

I will be a servant of God

And a friend to man”

43. That has been your pledge for the last 5 years as a Friend, Companion, Explorer, Ranger and Voyager. This is also your pledge as a Guide. What happened to the pledge that was taught to you? Where did you hide it?
    
44. The Pathfinder law reads like this:
    

The Pathfinder law is for me to

1. Keep the morning watch
2. Do my honest part
3. Care for my body
4. Keep a level eye
5. Be courteous and obedient
6. Walk softly in the sanctuary
7. Keep a song in my heart
8. Go on Gods errands
   
45. The church is committed to understanding young people and training its youth for leadership and service to humanity. The actions of the juvenile offender in this case departed from all the doctrines and teachings that the Pathfinder club and the church teaches and stands for.
    
46. The juvenile offender engaged in activities which are both immoral, unnatural and unlawful. They offend God’s law and man-made law.
    

SENTENCE

47. The sentencing options are catered for under s.80 of the Juvenile Justice Act. It says:
    

80. Juvenile sentencing.

(1) If a Court finds a juvenile guilty of an offence, the Court may make one or more of the following orders:

(a) direct that the juvenile be discharged and take no further action; or

(b) reprimand the juvenile; or

(c) make a good behaviour order for a period of not more than 12 months, requiring the juvenile to abide by an agreement made between the juvenile and his or her parents to comply with certain standards of behaviour; or

(d) order the juvenile to report to a specified person, agency or organisation for counselling, on such terms as the Court may decide; or

(e) make a supervision and guidance order for a period of not more than 12 months, placing the juvenile under the supervision and guidance of a specified adult or peer mentor in order to monitor and guide the juvenile's behaviour; or

(f) order the juvenile to attend a non-residential vocational training or rehabilitation program approved by the Director, on such terms as the Court may decide; or

(g) order the juvenile to make restitution to any other person, including the return of any item taken or repair of any damage done; or

(h) subject to the consent of a person, order that the juvenile compensate the person by way of personal service, at the time and on the terms that the Court may decide, for any loss, damage or injury suffered by the person as a result of the offence; or

(i) having regard to the ability of the juvenile to pay, order the juvenile to pay restitution in kind to a person, at the time and on the terms that the Court may decide, for any loss, damage or injury suffered by the person as a result of the offence, in an amount not exceeding K5,000.00; or

(j) subject to Section 82, order the juvenile to perform community service work under the supervision of a juvenile justice officer, or a specified person or civil society group that has agreed to supervise the juvenile, for a maximum period of up to 100 hours, and to be completed within a maximum period of six months; or

(k) having regard to the ability of the juvenile to pay, order the juvenile to pay a fine, not exceeding K500.00, to be paid at the time and on the terms that the Court may decide; or

(l) subject to Section 83, order that the juvenile be placed on probation in accordance with the Probation Act (Chapter 381) for a specified period, not exceeding three years; or

(m) order that the juvenile be committed to the care of the Director, with a directive that the juvenile be committed to custody in a juvenile institution selected by the Director, for a period not exceeding five years; or

(n) subject to Section 81, order that the juvenile serve a term of imprisonment in the juvenile section of a correctional institution; or

(o) if the order is made by a Juvenile Court or a court of summary jurisdiction, for a period not exceeding six years; or

(p) if the order is made by the National Court, for any period as is prescribed for an adult who committed the same offence in similar circumstances; or

(q) defer passing sentence on the juvenile for a specified period and subject to such conditions as the Court orders.

(2) If a Court orders a term of imprisonment under this section, the Court may —

(a) in addition, make some other order under Subsection (1); and

(b) order the suspension of the term of imprisonment and place the juvenile on probation with the condition that the other order is complied with.

(3) If the other order referred to in Subsection (2) is not carried out, the term of imprisonment originally imposed automatically takes effect.

(4) If —

(a) a Court imposes a sentence of imprisonment on a juvenile; and

(b) in the opinion of the Court, the juvenile does not have a parent or responsible person,

the Court shall advise the Director of Lukautim Pikinini of the juvenile's imprisonment.

(5) When making an order sentencing a juvenile for an offence, a Court shall take steps to ensure that the juvenile understands —

(a) the purpose and effect of the order; and

(b) the consequences, if any, that may follow if the juvenile fails to comply with the order.

48. I have taken into account all the matters in s.80 and s.81 of the Juvenile Justice Act. I am of the opinion that this was a very serious crime perpetrated by a 15 year-old juvenile who had no regard for family; no regard for the “baby victim” and no respect for himself. The victim was a mere “baby”, only 7 years old who was his niece for whom he should be looking out for and ensuring she was safe from predators other than himself. For this I am of the firm opinion that he be sentenced to a custodial term. He is now 16 years old and a juvenile at that. The offender is a first-time offender and he pleaded guilty to the serious charge. I take those factors into account. However, against him remains the fact that he planned the offence after voluntarily watching phonographic movies. The victim he chose is a 7 year old girl. He invaded her privacy and innocence over a period of time. He suggested to the child that he was her best friend and then told her not to tell her parents or anyone for that matter. His parents kept the crime under the carpet until her own mother found out what was happening to her little girl. The parents of the juvenile have exhibited a tendency or a nature that shows no real care to the victim and no real duty to reprimand their juvenile son and no real desire to stop child abuse.
    
49. I am mindful and keep reminding myself that, I am dealing with a juvenile and not an adult and that I shall give proper consideration to his age as a juvenile. However, I am also aware that he was engaged in activities and conduct which usually are for adults only. Parental guidance is required or recommended as we too often see on our television screens. Lack of reporting of instances of child abuse encourages the sexual abuse to thrive and continue. In this case the child reported the abuse first to the offender’s parents. His parents kept it to themselves and told the young girl not to report the incident to her parents. She did not report it herself until her own mother confronted her and found out the truth.
    
50. Is sending the offender back to his parents going to arrest child abuse. I think more emphasis should be on stopping child abuse. Children are and should be at the top of the vulnerable group of people. Instead of protecting the children from being abused, the law is encouraging the Courts not to punish the young, juvenile offenders. I think we are confused in our fight to stop child abuse.
    
51. Having said those things, I will deal with this matter in this way. I sentence him to 6 years imprisonment. Three years of that is suspended upon him entering into a good behavior bond for a period of 2 years. He will spend three years imprisonment at a Juvenile Remand Center to be identified by the Director Juvenile Services. He will be supervised there by the Juvenile Justice Officers for the duration of the three years with the help of probation officers.
    

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused