The State v Willie Dominic (2005) N2938

• Jurisdiction: Papua New Guinea
• Date: 25 November 2005
• Citation: (2005) N2938
• Docket Number: CR No 158 of 2005
• Court: National Court
• Year: 2005

Full Title: CR No 158 of 2005; The State v Willie Dominic (2005) N2938

National Court: Cannings J

Judgment Delivered: 25 November 2005

1 Criminal law—indictable offence—Criminal Code, Division IV.2A, Sexual Offences Against Children—s229A, sexual penetration of a child—sentence on plea of guilty—offender aged 17 at time of offence—child aged 14 years—no consent—offender acted alone—no weapons used or aggravated physical violence—no physical injury—no existing relationship of trust—series of incidents—offender did not surrender—cooperated with police—no trouble caused with victim since the incident—nothing tangible done towards repairing his wrong—determination of maximum penalty—expression of remorse—first offender—youthful offender—starting point for head sentence—new law—few precedents—identification of relevant considerations—application of relevant considerations—sentence of 4 years.

2

? The State v Aaron Lahu (2005) N2798, The State v Biason Benson Samson (2005) N2799, The State v Eddie Trosty (2004) N2681, The State v George Taunde (2005) N2807, The State v John Ritsi Kutetoa (2005) N2814, The State v Kemai Lumou (2004) N2684, The State v Mark Kanupio and Others (2005) N2800, The State v Pennias Mokei (No 2) (2004) N2635, The State v Peter Lare (2004) N2557, The State v Titus Soumi (2005) N2809

Sentence

A young man pleaded guilty to one count of engaging in an act of sexual penetration with a child under the age of 16 years. He was 17 years of age at the time of commission of the offence. The child, a girl, was aged 14. Despite concessions to the contrary, the court could not accept that the girl consented.

Held:

(1) It is a matter of concern that both counsel agreed that the sexual intercourse that took place was consensual. The report of the interview with the complainant suggested exactly the opposite.

(2) On a plea of guilty the court is obliged to give the benefit of the doubt to the offender on matters of mitigation. But here it would not be reasonable to accept that intercourse was consensual.

(3) Lack of consent was a major aggravating factor. There were, however, many mitigating factors, principally to do with the age of the offender and his personal circumstances and the small age gap between the offender and the complainant.

(4) The maximum penalty for this offence is 25 years imprisonment.

(5) The offender was sentenced to 4 years imprisonment, 2 years of which may be later suspended on application to the court.

PLEA

The accused pleaded guilty to engaging in an act of sexual penetration with a 14–year old child and the following reasons for sentence were given.

___________________________

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a young man who pleaded guilty to the offence of engaging in an act of sexual penetration with a child under the age of 16 years.

BACKGROUND

Incident

The incident giving rise to the charge took place at Madang in 2004.

Indictment

On 11 November 2005 the accused was brought before the National Court and faced the following indictment:

Willie Dominic . . . stands charged that he on the 10th day of October 2004 at Jomba market . . . engaged in an act of sexual penetration with [the complainant], a child under the age of 16 years.

The indictment was presented under s229A (sexual penetration of a child) of the Criminal Code.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

On 10 October 2004 in Madang the accused took the complainant, a girl aged 14 years to a house at Jomba market, Madang town. He had sexual intercourse with her by inserting his penis into her vagina.

Conviction

The accused pleaded guilty to those facts by saying 'yes, it is true, she is my girlfriend'. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. I noted that absence of consent is not an element of the offence and the fact that the accused was a juvenile did not provide him with a defence. Both those issues are, however, relevant to the question of penalty.

ANTECEDENTS

The prisoner has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

This girl is my girlfriend. I say sorry to the court and before God for what I have done. We had this friendship for a year. This was not the first time we had had sex. She used to come to my place but her parents did not know about it. I am currently going to school and a church worker. I ask the court to be lenient on me and to give me the opportunity to complete my studies.

OTHER MATTERS OF FACT

Though the prisoner has pleaded guilty there are some issues of fact raised in the depositions and in the allocutus, which, if resolved in his favour, may be relevant to the sentence.

Principles to apply

In two recent Kimbe cases I have set out the principles to apply whenever there are significant issues of fact arising from the depositions or the allocutus that were not in the prosecutor's summary of the facts. Those cases are The State v Mark Kanupio and Others (2005) N2800, which deals with issues arising from the depositions, and The State v Aaron Lahu (2005) N2798, which deals with issues arising from the allocutus. The principles to apply are as follows:

1 The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.

2 Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.

3 If the judge detects any significant mitigating matters in the depositions or in the allocutus that were not put to the accused in the prosecutor's summary of the facts the judge should ascertain whether there is agreement between the prosecution and the defence on those matters.

4 If there is agreement, the judge should work on what has been agreed to unless the claims made in the depositions or allocutus are so beyond the bounds of possibility as to be unbelievable.

5 If there is a dispute between the parties about those matters, it would be appropriate for the court to take sworn evidence on them. The accused can be invited to give evidence, but cannot be forced into the witness box.

6 If, however, the court does not...