The State v Elijah Javuso

• Jurisdiction: Papua New Guinea
• Citation: (2013) N5452
• Date: 23 November 2013
• Court: National Court
• Year: 2013

Full : CR NO. 1059 of 2013; The State v Elijah Javuso (2013) N5452

National Court: Toliken, AJ

Judgment Delivered: 23 November 2013

CRIMINAL LAW—Sentence—Sexual Penetration of a girl under 16 years—Juvenile offender—Mitigating factors - guilty plea—first time offender—one-off incident—consensual intercourse—no injuries or violence—Aggravating factors—prevalent offence—complainant became pregnant and has had a child - Interest of juvenile offender of paramount consideration—Need to balance interest of juvenile with need to discourage delinquency -Need to protect rights and interest of child victims including the infant child—Sentence of 5 years—Appropriate case for full suspension to promote for deterrence and rehabilitation—Criminal Code Act Ch. 262, s229A (1); Juvenile Courts Act 1991, s4; Lukautim Pikinini (Child) Act 2009 (No.7 of 2009).

Cases Cited in Judgment:

Goli Golu v The State [1979] PNGLR 653

Avia Aihi v The State (No. 3) [1982] PNGLR 92

Public Prosecutor v Don Hale (1998) SC564

Saperus Yalibakut v The State (2006) SC890

The State v Chandrol (2011) N4648

The State v Daniel (2008) N3612

The State v Biason Benson Samson (2005) N2799

The State v Pennias Mokei (No.2) (2004) N2635

The State v Eddie Trosty (2004) 2681

1. TOLIKEN, AJ: Prisoner pleaded guilty to the charge that between the month of November 2012 and 16th of February 2013 at Siroga Oil Palm Estate, Northern Province, he sexually penetrated one Yoshabel Arenadi, a girl under the age of 16 years. This is an offence against s229A (1) of the Criminal Code Ch. 262 (the Code).

BRIEF FACTS

2. On a date between November 2012 and 16th February 2013 the complainant and the prisoner were going to the market at Double Cross. Along the way as they were walking under the oil palm trees at Siroga block the prisoner sexually penetrated the complainant. The Complainant was then aged 14 years and the prisoner was 16 years old.

3. The complainant did not report the matter to relatives. Two months later her mother noticed a change in the appearance in the complainant and requested a female HEO to check her. It was found that she was pregnant. The complainant told her mother that the prisoner was the father of her child. The accused was then arrested and charged. The prisoner was 16 years old.

4. I confirmed the prisoner’s plea after reading the committal depositions and accordingly convicted him.

ANTECEDENTS

5. The prisoner is now 17 years old but was 16 at the time of the offence. He is of mixed Milne Bay and Popondetta parentage and is the second born in a family of four. He is currently doing Grade 9 at Popondetta Secondary School. He is a first time offender.

ALLOCUTUS

6. In his address to the Court the prisoner said that the complainant was his steady girl friend. One day he was at the market when the complainant came. She asked him to follow her and he did. When they came to a secluded spot they sat down hugged and kissed. She then asked him to quickly have sex with her before people came. She undressed and the prisoner said he pulled down his trousers and they had sex. After that they dressed and then left with the prisoner following the complainant. When they came to the road and parted and went to their respective houses. The prisoner pleaded for mercy on him because he is a student.

PRE-SENTENCE REPORT

7. I ordered a Pre-Sentence Report (PSR) for the prisoner. Basically the PSR is favourable to the prisoner. It recommends probation because of his age and the fact that he is a student.

SUBMISSIONS

8. Mr. Moses submitted that the complainant and the prisoner had consensual sex and did not...