The State v Kenneth Peter (2002) N2336

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 11 April 2002
• Citation: (2002) N2336
• Court: National Court
• Year: 2002
• Judgement Number: N2336

Full Title: The State v Kenneth Peter (2002) N2336

National Court: Injia J

Judgment Delivered: 11 April 2002

1 Criminal Law—Sentence—Unlawful carnal knowledge of 13 year old school girl (aged 16 years at the time of trial) by 19 year old man—Appropriateness of non–custodial sentence—Appropriateness of Compensation order—Accused Sentenced to 2½ years—Sentence wholly suspended on condition he pays K5,000.00 compensation to victim within 18 months—Funds to be held in trust and invested by the Registrar until victim attains the age of maturity (18 years old)—Criminal Code (Ch262), s216—Criminal Law (Compensation Act) 1991, s2.

2 Pike Dambe v Augustine Peri and The Independent State of Papua New Guinea [1993] PNGLR 4, Samuel Era v Susan Paru [1994] PNGLR 593, Lawrence Hindemba v The State (1998) SC593 and The State v William Muma [1995] PNGLR 161 referred to

___________________________

N2336

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 100 OF 2000

THE STATE v. KENNETH PETER

LAE : INJIA, J.

2002 : APRIL 11

Criminal Law – Sentence – Unlawful carnal knowledge of 13 year old school girl (aged 16

years at the time of trial) by 19 year old man – Appropriateness of non-custodial sentence –
Appropriateness of Compensation order – Accused Sentenced to 21/2 years – Sentence wholly
suspended on condition he pays K5,000.00 compensation to victim within 18 months – Funds
to be held in trust and invested by the Registrar until victim attains the age of maturity (18 years
old) – Criminal Code (Ch. No. 262), S.216 – Criminal Law (Compensation Act) 1991, S.2.

Cases cited in the judgment

Pike Dambe v. Augustine Peni & The State [1993] PNGLR 4.

Samuel Era v. Susan Paru [1994] PNGLR 598.

Lawrence Hindemba v. The State SC 593 (1998).

The State v. William Muma [1995] PNGLR 161.

Ms M. Zurenuoc for the State

Mrs. A. Raymond for the accused

11 April, 2002

INJIA, J.: The prisoner pleaded guilty to a charge that on 3/10/99, at Bulolo he had unlawful carnal knowledge of Miss SF (named “victim”), a girl under the age of 16 years, contrary to S.216 of the Criminal Code. At that time she was aged 13 years old and going her 4th Grade at Primary School. Now she is aged 16 years old and she is doing her Grade 7.

The prisoner was at that time aged about 19 years old and single. He is now between 21 – 22 years old and still single. He is educated up to Grade 10 in 1996 and has been employed by PNG Forest in 1997. This year, he resigned his job and is attending Mt. Hagen Technical College studying to be a heavy machinery operator. The prisoner and his parents reside at Kapriman Compound at Bulolo Township but they originally come from Kapriman village, Angoram in the East Sepik Province. The victim and her family also come from Kapriman village, Angoram. They reside at Kapriman compound as well. The two families have known each other for a long time. The victim describes her relationship with the accused as “us brothers.”

On 3/10/99 at about 7.00p.m., the victim and her small sister and brother were alone in her house. The prisoner came and signaled her to come outside and asked her to accompany him to find some “ice block.” She agreed and they went out. On the way, the prisoner pulled her to a pineapple garden, laid her on the ground, undressed her and had sexual intercourse with her. The accused covered her mouth with his hand and prevented her from shouting. In the course of the intercourse, she felt pain and “cried slowly.” Then he left her there after hearing her mother call out for her. Her father got angry after finding out she had sex with him and belted her up.

The accused in his Record of Interview says the sexual intercourse was voluntary. They kissed and cuddled each other before they had sex and she undressed herself. He says he was something like her “secret admirer”. This is not denied by the victim.

Also in his ROI, the accused says he only used his fingers because he tried to have intercourse but “cannot and she said not to that to.” But he was arraigned on actual sexual intercourse with her and he pleaded guilty to the charge on that basis. As this version has not been disputed at any stage of the trial, I sentence him on that basis.

The medical evidence is consistent with actual carnal knowledge. It shows that there was actual penetration of the vagina by a penis. This finding was based on bleeding in her vagina due to torn hymen. Preliminary tests showed negative sperm presence.

The prisoner expressed remorse in open Court and asked for a non-custodial sentence to enable him to continue his education. He also asked for a chance to be given to pay compensation of K5,000.00 within 18 months. The victim and her relatives who were present in Court spoke through the State Prosecutor. They agreed to accept the compensation offered. I indicated I would have to consider this request in the light of all other factors and adjourned the matter to today for sentence.

The payment of compensation for all kinds of offences as a form of punishment under our penal laws is permitted by the Criminal Law (Compensation) Act 1991. In deciding whether compensation is appropriate in a particular case, the Court is required to take into account the following factors:-

“(a) the nature and seriousness of the offence;

(b) the degree and nature of any personal injury or damage to property suffered by any person as a result of the commission of the offence;

(c) any factors regarding the commission of the offence or the offender’s attitude which may be considered in mitigation or aggravation of the punishment;

(d) any relevant custom regarding compensation, including but not limited to—

(i) any custom regarding the nature, the amount, the method of payment and the appropriate person or persons to be paid the compensation; and

(ii) any custom which relates the amount of compensation to the age or life expectancy of the person suffering injury or loss;

(b) the information provided in the means assessment report, including any recommendations made by the Chief Probation Officer in the means report;

(c) any other relevant matter.” (see S.3(1)).

In considering a matter under this section, a court is not bound to apply the technical rules of evidence but may act on such information as is available to it. (see Section 3(2)). I consider each of the factors listed under S.3(1) as follows:-

(a) The nature and seriousness of the offence.

In considering the accused’s request, I bear in mind the seriousness of the offence. The offence carries a maximum punishment of 5 years imprisonment. It is a serious offence and it is also prevalent in this country. This laws seeks to protect young under-age girls from being physically hurt, sexually exploited and morally corrupted by men whose only desire is to satisfy their lust for sex. A strong deterrent and punitive sentence in the form of custodial sentence is usually imposed by the Courts. The sexual exploitation of young school children by men have attracted severe punishment: see Lawrence Hindemba v. The State SC 593 (1998).

(a) Personal injury to victim.

The victim sustained vaginal injuries. She suffered some pain and discomfort. She was also belted up by her father and was therefore subjected to further physical harm. She lost her virginity prematurely and she was morally corrupted at an early age. Life will not be the same for her after this incident. She remains vulnerable to being subjected to shame and degradation in the future.

(a) Offender’s attitude & mitigating and aggravating factors.

In favour of the accused, I take into account that he is a young man of prior good character. He is educated and has past job experience. He is presently undergoing studies at Mt. Hagen Technical College to improve his career. He is a first offender. He has willingly pleaded guilty to the charge, expressed genuine remorse and co-operated with the police in admitting the offence some 3 days later. He comes from a church background and I am sure he is genuinely prepared to make good the wrong he has done to the victim and her relatives, who are no strangers to him.

At the same time, I have considered the particular extenuating circumstances of the offence. I have considered the fact that minimal force was used by the accused, no other physical injury was inflicted on her, minimal threat or intimidation was used and no weapons were used. I have also considered the age difference of 6 years between. The difference is not that great between them. Both were in the teen age group.

As for the aggravating factors, there was breach of trust, physical vaginal injuries were inflicted, that she was morally corrupted and subjected to shame and ridicule by her own family and the stigma no doubt will remain with her for the rest of her life.

(a) Customary compensation.

(i) There is no evidence before me that compensation for crimes committed against individuals...