State v Namah [2021] PGNC 383; N9157 (17 September 2021)

N9157

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 943 OF 2021

BETWEEN:
THE STATE

AND:
JUNIOR BOB NAMAH

Vanimo: Rei, AJ
2021: 21^st July & 17^th September

CRIMINAL LAW – Sentence – Sexual penetration of a girl under 16 years – Revising in Sexual organ – Consensual Sex – Guilty plea – First time offender – Minimum difference on age of maturity – 5 years substantially imposed – Sections 229A (1) and 19 of the Criminal Code Act.

Cases Cited:

The State -v- Rudy Solo N3165
The State -v- Eddy Trosty (2004) N2681
The State -v- Peter Lare (2004]) N2557
The State -v- Thomas Angup (2005) N2830
The State -v- John Ritsi Kutetoa (2005) N2814
The State -v- Paul Nelson (2005) N2844
Acting Public Prosecutor -v- Don Hale (2005) SC564

Legislations Cited:

Section 229A (1) & 19 Criminal Code Act
Section 158 (1) of the Constitution of PNG

Counsel:

Mrs. T. Aihi, for the State
Mr. M. August, for the Prisoner

17^th September, 2021

1. REI AJ: BACKGROUND: The prisoner pleaded guilty to the charge of sexual penetration of a girl under the age of 16 years which is contrary to Section 229A (1) of the Criminal Code Act (“the CCA).

2. An indictment was presented in the National Court of Justice at Vanimo West Sepik Province on the 21^st of July 2021 in which the prisoner was charged that on the 9^th day of January 2021 he did sexually penetrate a child under the age of 16 years whose name is Bertha Maria Aniyel then 15 years of age.

3. The brief facts as presented without any objection of the defence are that the complainant was born on the 30^th of April 2005 and that at the time the offence was committed, she was 15 years and 2 months of age.

4. The complainant was 10 months short of reaching the age of 16 years at the time the crime was committed. The prisoner was 28 or 29 years old at that time.

5. On the 9^th of January 2021, the complainant and the prisoner communicated over the telephone through face book and agreed to meet. The prisoner went to Vanimo Primary School where the complainant was attending school and picked her up and took her to his residence where he sexually penetrated her.

6. From the facts provided by consent the complainant did not object or resist the advances of the prisoner from the point she was picked up until sexual penetration took place.

7. Indeed, after the events had occurred, the complainant did not raise any issue or complaints with her parents or anybody.

8. But when her parents insisted as to her whereabouts on that day and upon admitting that she was with the prisoner, the parents attended at the Vanimo Police Station and reported the matter.

9. It can be deduced from the above set of facts that the prisoner had consensual sexual intercourse with the victim who was then 15 years 2 months old whilst the prisoner was 28 or 29 years of age.

10. I say this because the victim and the prisoner had been constantly in contact with each other and that a bonding relationship had been established.

11. Whilst I appreciate that the victim was somewhat 10 months short of becoming 16 years of age, certainly she was in the process.

ARRAINGMENT

12. The State presented an Indictment on the 21^st of July 2021 upon which the prisoner entered a plea of guilty.

13. After pleading guilty to the charge, the prisoner apologized to the Court and to parents of the victim and sought that the Court shows leniency on sentencing.

14. The guilty plea was consistent with the committal file depositions.

AGGRAVATING FACTORS

15. The aggravating factors in this case are that:

(i) sexual penetration of a child under 16 years of age who was 15 years 2 months old at the time of the offence;
(ii) a (male) adult;
(iii) prevalence of the offence

MITIGATING FACTORS

16. The mitigating factors according to the defence submission are:

(i) the prisoner is a first time offender
(ii) expressed genuine remorse

• (iii) victim was not forced coerced or enticed to engage in sex as there have been communications between the victim and prisoner who both planned to meet
• (iv) victim not far from reaching the age of 16 years; she was 15 years 2 months old
• (v) an isolated and not repeated abusive sexual relationship
• (vi) no relationship of trust, dependency or authority between the prisoner and the victim existed then

(vii) prisoner cooperated with the Police
(viii) paid compensation of K5,000 through Town Mayor to the family
(ix) no injuries were caused to the victim
(x) the victim was not infected with a sexually transmitted disease

THE OFFENCE AND SENTENCING TREND

17. Section 229A (1) of the CCA creates and prescribes the offence of sexual penetration of a child. It provides:

“229A Sexual penetration of a child by 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 Subsections (2) & (3) imprisonment for a term not exceeding 25 years.”

18. In my opinion, it does not matter if the victim is 15 years 11 months old or younger, she is still under the age of 16 years therefore she is a child within the meaning of Section 229A of the CCA.

19. The sentence to be imposed by the Court is a period “not exceeding 25 years.”

20. However, the range of sentence in each case is to be determined on the circumstances of each case.

21. In considering this issue in The State -v- Rudy Solo (2005) N3165 His Honour Kandakasi J. (as he then was) made reference to the range of sentences in The State -v- Eddy Trosty (2004) N2681, The State -v- Peter Lare (2004) N2557. The State -v- Thomas Angup (2005) N2830 decided by Lay J, The State -v- John Ritsi Kutetoa (2005) N2814 decided by Cannings J, citing the judgement of His Honour Kandakasi J. in The State -v- Paul Nelson (2005) N2844.

22. His Honour Kandakasi J. then made specific reference to the judgment of Cannings J. in The State -v- Paul Nelson (2005) N2844 and stated:

“more recently, Cannings J, in my view has given an excellent summation and comparable table of nearly all of the cases thus far dealt with by the Court since the Amendments in 2002 for an offence under Section 229A of the CCA in his judgement in The State -v- Paul Nelson. That summation shows that sentences have ranged from as low as 2 years to 20 years. Those going beyond 2 years and 6 years have been in cases, where the offenders committed the offence in breach of an existing trust, there exists, serious aggravating injuries or actual violence is used to secure the commission of the offence.” (emphasis added)

23. I agree with His Honour Kandakasi J with his assessment of the law as to sentences to be imposed under Section 229A of the CCA.

SENTENCE IN THIS CASE

24. The sentence to be imposed herein must reflect both the gravity of the offence of sexual penetration of a child and the degree of aggravation involved prior to, at the time and after the offence was committed.

25. The sentences passed in these types of case show three (3) extremes. The first is the category of offenders who were in a position of trust; close relatives enticing young children to enter into sexual intercourse. The other extreme is the category where people use violence to satisfy their evil desire whether the victim is related or that he is in a position of trust or not or is a stranger.

26. The third extreme category involves what is described as consensual sexual intercourse where the child voluntarily agrees to have sexual intercourse with an adult male despite of her being underage.

27. Applying the principles expressed in the case of The State -v- Paul Nelson (2005) N2844 by His Honour Cannings J. which was cited by His Honour Kandakasi J in his decision in The State -v- Rudy Solo (Supra), I am of the view that this case falls within category three (3) whereby consensual sex was performed given that there existed a courting relationship between the victim and the prisoner.

28. Although the victim here was under the age of 16, she was indeed 10 months shy of that age when the offence was committed. Further although “consent” is not an important element to be proven as in rape cases because a child under 16 years is involved, it should be given some consideration; not full consideration, where the victim is about to reach the age of 16 years as is in this case.

29. The prisoner in this case was 28 or 29 years of age at the time he committed the offence.

30. No force or undue influence was used to entice the victim to have sexual relationship with him. Indeed by her conduct it can be safely assumed she did agree to do so as supported by the fact that both were communicating with each other by facebook communication – prior to the incident. She consented to being picked up by the prisoner from her school grounds and did have voluntary or consensual sex with the prisoner. The acts of sexual intercourse having occurred in the house of prisoner.

31. The act of sexual penetration did not result in injuries to the vaginal area nor were any sexually transmitted diseases contracted by the victim resulting from that.

32. In paragraph 9.3.2 of the PSR, the victim is reported to have admitted that herself and the prisoner had been communicating by telephone for 2 weeks and that she liked him. That she did not resist the advances of the prisoner.

33. Most importantly, the prisoner paid compensation of K5,000.00 to the victim and her parents to maintain a peaceful accord. Although the father of the victim stated in the PSR that he did not accept that move, he nevertheless admitted receiving the sum of K5,000.00.

34. A PSR as filed by the Probation & Parole Office of Vanimo on the day of 23^rd July, 2021 speaks favourably for the prisoner. This report should be given weight as it reflects the views of the community where the prisoner comes from Somboi village, Bewani, West Sepik Province.

35. The report says in paragraph 13 that the prisoner was led to believe from telephone contacts that the victim held herself out as a matured person who then said she was willing to meet the prisoner.

36. In the case of State -v- Rudy Solo (2005) N3165, His Honour Kandakasi J. said with respect to the Supreme Court case of Acting Public Prosecutor -v- Don Hale (2005) SC564:

“In Acting Public Prosecutor -v- Don Hale the Supreme Court said sentencing is a community responsibility. After all, the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. I have endorsed and followed that view in many cases in the immediate past, including some of the decision I handed down in Vanimo in this circuit as in the case of The State -v- Bill Saun Daniel.”

“I am therefore prepared to impose a sentence that reflects the wishes expressed by the community through the pre-sentence report. This, I am prepared to do because I am of the view that, sending you to prison will not serve any useful purpose. You will be a strain on the State’s limited financial resources in terms of looking after you in prison and feeding you. Apart from not seeing you in your house and your community, the members of your family and community will not be able to see you serving your penalty. I therefore, consider a non-custodial sentence is appropriate but that has to be strict terms as an alternative to imprisonment.”

37. I adopt the views of His Honour Kandakasi J. in the above case and impose a sentence of 5 years in hard labour.

38. In the exercise of my discretion under S.19 of the CCA, the whole of that sentence is suspended on conditions as follows:

1. the prisoner pays a fine of K1,000.00 from the K2,000.00 cash bail and the balance of K1,000.00 to be refunded to you immediately;
2. you enter into a recognizance to keep the peace and be of good behaviour for a period of 5 years;
3. for the whole of the suspended period you render three hours of free community service each Mondays, in and around Vanimo Town excepting any public holidays by cutting grass and undertaking any other physical labour based activity under the supervision and direction of the Probation & Parole Officer Mr. Kasanda;
4. for the purpose of term 3 above, the probation service shall furnish to this Court a detailed work program within 7 days from today for the Court’s endorsement;
5. you be home bound between the hours of 6:00 pm and 6:00 am each day for the currency of your suspended sentence and report every day to the Officer in Charge of Police in Vanimo;
6. during the currency of your suspended sentence, you shall not leave your place of residence unless leave of this Court has been first sought and obtained;
7. you will allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to report with such recommendations as he might consider appropriate either for a variation or an implementation of these terms;
8. the Probation Service shall furnish a monthly report to this Court of your performance and observance of these conditions with the first being due by 22 October 2021;
9. if for whatever reason you breach any of these terms the suspension of your sentence shall immediately be lifted and you will serve the full term of 5 years from the date of the first breach;
10. you will be at liberty to apply for a review and or variation of any of these terms including a lifting of any of these terms and conditions provided there has been substantial compliance, which shall include a full compliance of term 1, 2 and 3 above.

______________________________________________________________

Public Prosecutor: Lawyer for the State

M Smiley Lawyers: Lawyer for the Defendant