State v Bernard [2021] PGNC 603; N9457 (30 July 2021)

N9457

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 710 OF 2019

THE STATE

V

JEFFREY BERNARD

Alotau: Koeget, J
2021: 14^th , 30^th July

CRIMINAL LAW – sentence – prisoner pleaded guilty to the charge of exual penetration of a minor under twelve years – prisoner and victim close blood relatives – breach of trust authority and dependency – mitigating and aggravating factors considered – prisoner sentenced to six years in hard labour less presentence custody period

Facts:

The accused is charge with one count of Sexual Penetration of a minor under the age of twelve years. He is charged pursuant to Section 229A (1)(2)(3) of the Criminal Code Act (as amended).

Cases Cited
Stanley Sabiu -v- The State (2017) SC866
The State -v- Esrom (2006) NC 53, N3054
The State -v- Mokei (2004) PGNC 129, N2635
The State -v- Jason John (2017) PGNC 154, N6818
The State -v- Paliako (2019) PGNC 292, N8016

Counsel
D. Mark, for the State
C. Namono, for the Accused

30^th July, 2021

1. KOEGET J: The complainant, a minor was born on 1^st April 2012 at Port Moresby General Hospital. On the afternoon of 21^st February 2018 at Koukou village, Alotau District of the Milne Bay Province between the hours of five o’clock and six o’clock the accused took the victim to a hauswin within the premises of the victim’s family and removed her pants and told her to lay on the floor. He forced his penis into the vagina of the victim, then aged between five to six years. The victim’s mother became suspicious so she searched for her and found her inside the hauswin naked with the accused. The State alleges that the child was below the age of twelve (12) years and that there existed a relationship of trust, authority and dependency between them. The accused’s conduct breached that relationship as they are related to each other and are also neighbours.

2. The State further alleges that the accused’s conduct contravened Section 229A(1)(2)(3) of the Criminal Code Act (as amended).

Issue

3. The accused pleaded guilty to the charge and so he was convicted accordingly. The issue for the Court to determine is what is the appropriate sentence the Court should impose upon him.

4. The following factors/particulars are considered to determine what is the appropriate sentence to be imposed.

Personal Particulars

5. He was 17 years old when he committed the offence but now he is 20 years old. He is a bachelor and lived in the village as a subsistence gardener. He completed Grade 7 and returned to the village to live as a subsistence gardener.

Aggravating Factors

6. The victim was five years when the offence was committed upon her. The age gap between the victim and the prisoner is twelve (12) years and this is a serious factor because the victim was introduced to sex at a very tender age when she knew nothing about sex.

7. The prisoner is the maternal uncle of the victim so the offence was committed within the family circle.

Mitigating Factors

8. The prisoner is a youthful offender. He committed the offence when aged 17 years but now 20 years old. He is a first-time offender and he pleaded guilty to the charge and saved valuable time of the Court. His guilty plea saved the victim from embarrassment during cross examination in Court by defence counsel in the presence of the trial judge.

9. He admitted commission of the offence to the police and in Court pleaded guilty so co-operated well in the disposal of the case.

10. The prisoner’s family paid to the victim’s family customary compensation of cash of K400.00, garden food, store goods, three pigs and one live chicken all valued at K4,404.00. The compensation was accepted by the victim’s family. No weapons were used in the commission of the offence, the victim sustained no permanent physical injuries to her body.

Sentence

11. The prisoner is the relative of the victim and is also a neighbour. He planned to commit the offence and executed that plan, unfortunately found by the mother of the victim.

12. A payment of customary compensation to the victim’s family cannot pay for the crime the prisoner committed under the Criminal Code Act but is taken as an evidence of settlement of the rift between the family. It implies that the rift is mended and all live together in the village happily.

13. The serious factor in this case is that the victim, a tender aged girl was introduced to sex when she knew nothing about it.

14. She needs to be protected from such offender. This means custodial sentence ought to be imposed to separate the victim from the prisoner and that after the service of the imprisonment term, he is released to the community as a corrected person.

15. The prisoner is sentenced to be imprisoned for a period of six (6) years in hard labour. The pre-sentence custodial period of three (3) years is ordered to be deducted and he is to serve the balance of three (3) years at Giligili Jail.

Order

1. The prisoner is sentenced to be imprisoned for a period of six (6) years in hard labour.
   
2. The pre-sentence custodial period of three (3) years is ordered to be deducted.
   
3. The prisoner is to serve the balance of three (3) years in hard labour at Giligili Jail.

Accordingly sentenced.
_____________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused