The State v Jessie Chadrol (2011) N4648

• Jurisdiction: Papua New Guinea
• Date: 23 May 2011
• Citation: (2011) N4648
• Docket Number: CR 265 of 2009
• Court: National Court
• Year: 2011

Full Title: CR 265 of 2009; The State v Jessie Chadrol (2011) N4648

National Court: Batari J

Judgment Delivered: 23 May 2011

CRIMINAL LAW—sentence - sexual penetration of girl under 16 years—accused first offender aged 17 years—victim aged 13 years—boy/girl relationship—plea - sentencing principles—Appropriate approach to sentencing—use of range instead of starting point as guide.

CRIMINAL LAW—sentence—particular offence - sentencing policy - sexual penetration of girl under 16 years—change in legislation increasing seriousness of offence and penalty—legislative intent not to punish every act of sexual penetration—effect on sentencing discretion - sentence of six years imprisonment wholly suspended appropriate - Criminal Code s292A(1).

Facts

The offender pleaded guilty to one count of sexual penetration of a girl under the age of sixteen, she being his girl friend,13 years of age and the offender being 17 years of age at the time of the offence. The sexual penetration was consensual.

Held

1. The use of a sentencing ‘scale’ or ‘range’ as a guide in sentencing is preferred to a starting point because ‘starting points’ give the impression of an inflexible sentencing option;

2. Because there are legal excuses or defences available in some factual circumstances to sexual intercourse with a girl under the age or 12, or 14 years of age, the seriousness of the offence and the aim to protect young children should not be the overriding factors in sentencing sexual penetration cases;

3. In the circumstances of the case a sentence of 6 years imprisonment, wholly suspended on probation terms is appropriate.

Cases Cited

Stanley Sabiu v The State (2007) SC866; John Elipas Kalabus v The State [1989] PNGLR 195; Tau Jim Anis v The State (2000) SC642; Rex Lialu v The State [1990] PNGLR 487; The State v Pennias Mokei (No 2) (2004) N2635; The State v Ndrakum Pu–Uh (2005) N2949; The State v Rex Lialu [1988–89] PNGLR 449; The State v Polin Pochalon Lopai [1988–89] PNGLR 48

SENTENCE

1. BATARI J: Jessie Chandrol will be sentenced on his plea of guilty to sexual penetration of a 13 year old girl.

Background

2. The agreed facts which also form the basis for sentence are brief. Jessie and the complainant of Igam Defence Force Barracks have been friends since 2006. Their relationship led to sexual intercourse in January 2007. The complainant was then aged 13 ½ years and attending Igam Primary School. Jessie was 17 and attending a TAFE course at Coronation College, Lae. Attempts by parents to dissuade them failed so; the matter was referred to the police resulting in this case.

The Offence of Sexual Penetration

3. Section 229A of the Criminal Code creates the offence of sexual penetration with a child under 16 years. It re-enacts and gives a combined effect to the now repealed provisions of s213 (Defilement of girls under 12) and s216 (Defilement of girls under 16) of the Criminal Code. The new law is non-gender specific. It also divides the offence into “simple” and “aggravated” acts of sexual penetration.

4. The two categories of sexual penetration are set out under s229A (1),(2) and (3) as follows:

“(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 Subsections (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 s19, to imprisonment for life.”

5. Cases involving victims over 12 years where there is no breach of trust or the offence does not amount to rape come under this provision. If the victim is under 12 years or the offence involved breach of an existing relationship of trust, authority or dependency, the maximum penalty is life imprisonment.

6. Prior to the amendment, the maximum penalty for what was then the offence of “unlawful carnal knowledge of a girl under 16 years” was 5 years and life imprisonment if the victim is less than 12 years.

Effect of the new law on sexual offences against children

7. It is relevant to make some observation on what I consider a troublesome task that confronts a sentencing judge under the new law.

8. By repealing and replacing s213 and s216 of the Criminal Code...