N11339

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR No. 1678 OF 2024

THE STATE

V

PHILEMON JOHN

BOMANA: MIVIRI J
11, 12 JUNE 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – Plea – Sexual penetration Minor 16 years old – 13years Old – Section 229A (1) CCA – Penial Penetration – Boy & Girl Friend – Consensual Sex – Prisoner 18 years 0ld First Offender – Prisoner Admission Sexual Penetration Record of Interview – No Evidence of Emotional & Physical Trauma – Protection Young Girls & Females – Prevalent Offence – Deterrent Sentence – 6 years IHL.
 
Facts
Accused 18 years old took the complainant to a secluded area where both had consensual sex/ he penetrated her vagina with his penis and had sexual intercourse with her. She was 13 years old. 

Held
Sexual penetration.
13-year-old Girl.
Boy & Girl friend relationship.
Protection of young females & Children.
6 years IHL.

Cases cited 
State v Pastin [2014] PGNC 81; N5623 
State v Kenny (No 2) [2024] PGNC 201; N10848
Meaoa v The State [1996] PNGLR 280
Kalabus v State [1988] PGNC 120; N604
Golu v The State [1979] PNGLR 653
Simbe v The State [1994] PNGLR 38
State v Chadroi [2011] PGNC 211; N4648
Public Prosecutor v Hale [1998] PGSC 26; SC564
Tardrew, Public Prosecutor v [1986] PNGLR 91
Sabiu v State [2007] PGSC 24; SC866
State v Trosty [2004] PGNC 103; N2681

Counsel:
J. Tugaha & S. Patatie for the State
K. Watakapura for the defendant

SENTENCE

1.	MIVIRI J: Philemon John of Wapia village, Tari Pori District, 18 years old, pleaded guilty to the Indictment that he sexually penetrated Elvina Steven 13 years old after both went up a hill. He told her to follow him up. She did and there he held her breasts, removed her trousers and inserted his penis into her vagina. He had sexual intercourse with her. She felt pain pushed him away and he left. It was reported to police and the accused was arrested and charged with the offence.

2.	Which is the charge the prisoner has been indicted under section 229A (1) of Criminal Code, Sexual Penetration of a Child which read:

“ (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 Subsection (2) and (3), imprisonment for a term not exceeding 25 years.
(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.
(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.”

3.	He has pleaded guilty confirming the admissions in the record of interview to police of 08th July 2024. He is now 19 years old but was 18 years old at the time of the offence. A first offender originally from Wapia village, Tari Pori resident with his single parent, mother at the 8-mile block. He does not have any record of formal employment possibly because his education level is to grade 6 at primary. He expressed remorse in his allocutus and pledged not to commit the offence again. These are all in his favour and mitigating. Importantly his guilty plea has saved the complainant sitting in an open court testifying. Against the fact that he has committed the offence is his preparedness to accept responsibility for his action. Without that fact the pledge not to commit the offence again shows commitment on his part to abide by the law. He was 18 years old at the time of the offence. It may have been consensual, but it is responsibility that the law entails upon young men and women to refrain from such conduct as defiance leaves lingering effects that are lifelong. For example, pregnancy that may emanate from a 13-year-old girl as here.

4.	The 13-year-old consenting complainant does not bear any responsibility for the crime committed. But she is the other half to the execution of that offence. By its nature the offence will not be perpetrated in this manner without consent. It is not an element but works for and against in the determination of an appropriate sentence appropriate. She was in an area watching a state of origin game of rugby and could have easily refrained from going with the prisoner. He is 18 years old she is 13 so the gap is 5 years apart. There is immaturity in the relationship and the consequences that flow from the engagement do not deter both. Young girls must be protected from themselves because there is real propensity that pregnancy may follow: State v Pastin [2014] PGNC 81; N5623. And sexually transmitted diseases maybe transmitted. Fortunately, that is not the scene here. But disclosed in the medical report dated the 11th June 2024, attached to the affidavit sworn same date and time under hand of one Sister Christine Fuka Waure nursing officer at the Family Support Centre is the fact that, she was sexually penetrated. There is nothing over or above to depict any aggravating features because of the offence.

5.	There is no evidence of violence beyond necessary to execute the offence. This is not a situation where a weapon is used to commit the offence. Nor are there injuries upon the complainant: State v Kenny (No 2) [2024] PGNC 201; N10848 (22 May 2024). Because the young age of a complainant and the level of violence exerts strongly to tally sentence passed: Meaoa v The State [1996] PNGLR 280. Underlying is that children, young females are vulnerable, and the Court must do its duty bestowed by the Legislature to protect them together with any others similar. Life sentences have been imposed in extreme aggravating cases to reflect the level of tolerance of society: Kalabus v State [1988] PGNC 120; N604 (27 October 1988). Comparably this is not the most serious offence of its kind measured against this backdrop.

6.	It is not the worst offence of sexual penetration of a minor so that the maximum or near maximum is warranted: Golu v The State [1979] PNGLR 653. It is a serious offence but draws its sentence by its own facts and circumstances: Simbe v The State [1994] PNGLR 38. Its prevalence cannot be downplayed and has been addressed time and again: State v Chadroi [2011] PGNC 211; N4648, facts similar here. She was 13 years old. He was 17 years old. Sexual intercourse took place consensually. The court imposed 6 years imprisonment that was suspended in total. There is sufficient material here by the evidence presented to suspend sentence: Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). N4648 (23 May 2011). Because he has been detained awaiting trial of this matter for a year since 05th June 2024. He is a first-time offender aged 18 years old. Some leniency must be exercised in his case he no doubt will be deterred by the one-year service on remand for the offence. And to impose further time in jail would be excessive considering: Tardrew, Public Prosecutor v [1986] PNGLR 91.

7.	The Supreme Court confirmed 17 years imprisonment and dismissed the appeal in Sabiu v State [2007] PGSC 24; SC866 (27 June 2007). That was anal intercourse of a six (6) year child by his maternal uncle who took him into the bush and committed the offence upon him because part of the bride price money was not given to him. I am not faced with that kind of violence here. Prisoner is very remorseful, a 18-year-old man who may be likened to the facts in State v Trosty [2004] PGNC 103; N2681 (10 September 2004) and she was 16 years old; he was 22 years old the act was consensual for several times, hence the 5 years imprisonment imposed.

8.	I determine that the aggregate fair and proportionate sentence given his facts and circumstances is 6 years imprisonment in hard labour. And I so impose that upon the prisoner for the crime committed. From that I deduct the one year spent on remand leaving 5 years. In the exercise of my discretion pursuant to section 19 Criminal Code Act given all that is set out above I suspend that on good behaviour bond for the same period of time. He will be released from custody after signing the orders made.

Orders Accordingly

________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the defendant: Public Solicitor