The State v Wesley Penias (2014) N5659

• Jurisdiction: Papua New Guinea
• Date: 13 March 2014
• Citation: (2014) N5659
• Docket Number: CR 452 of 2012
• Court: National Court
• Year: 2014

Full Title: CR 452 of 2012; The State v Wesley Penias (2014) N5659

National Court: Batari J

Judgment Delivered: 13 March 2014

CRIMINAL LAW—Practice and Procedure - Indictment charging one count of aggravated sexual penetration of a child under 16 years on allegations of victim being under 12 years—plea—age of victim - issue of, raised by accused in record of interview and observation of the victim in court—subsequent informant confirming girl over 12 years at time of offence—Indictment—amendment of subsequent to plea—power of the court to order amendment after the plea and before sentence.

CRIMINAL LAW—Sentence - Sexual Penetration—Accused sexually penetrated child under 16 years in boy/girl relationship—Plea - Factors in mitigation—sentence of 4 years wholly suspended appropriate.

Cases Cited

Papua New Guinea Cases

Kuri Willie v. The State [1987] PNGLR 298

State v Frank Kagai [1987] PNGLR 320

The State v August David (2008) N3612

The State v Herman Joseph Leahy (2008) N3570,

The State -v- Morobet Awui Komia and Petro Kevein [1987] PNGLR 262;

The State v Murray William, & 2 Ors (No 1) (2004) N2556

The State v Saul Ogerem [2004] N2780

The State v Stanley Marai Uriye o (2003) N2386

Overseas Cases

William Davey (1980) 2 A. Crim R 254,

SENTENCE

1. BATARI J: You have been convicted on one count of sexual penetration of a girl under the age of 16 years, following your plea of guilty. The girl you violated was said to be 10 years old and therefore, under the age of 12 years. The prescribed penalty for sexually violating a girl under the age of 12 years pursuant to s. 229A (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, subject to s. 19 is life imprisonment.

2. There are factors on file tending to show the victim was indeed 10 years on 11/12/11, the time of the incident. She was in or had just completed grade 2 schooling. A Birth Certificate recorded the date of birth as 10/5/01 and the medical report dated 12/12/11 stated her age as 10 years old. Police Witness Statements from her natural father, the adopting father and the victim’s elementary school teacher all indicated she was 10 years when sexually violated.

3. However, in admitting the offence in the record of interview the prisoner in response to a question, “Em liklik meri or bigpela meri?” said, “Em bigpela meri.” His answer was translated as, “An adult.” This in effect, questions the evidence that the victim was 10 years old. The certificate of birth from Bialla Health Centre was quite clearly issued for use in this case. The basis or source of that information is unknown. It could well have been concocted.

4. The incidental conduct of the victim best described as permissive and cooperative, prior to, during and after the offence add to the lingering doubt about her age and maturity. Furthermore, the result of medical examination of the victim’s genitals the next day do not support the expected physical injuries a 10 year old would likely sustain from being sexually violated for the first time by an older person.

5. More crucially, the victim would this month be 13 years old and 14 in May...