The State v Elijah Javuso

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ
• Judgment Date: 23 November 2013
• Citation: (2013) N5452
• Court: National Court
• Year: 2013
• Judgement Number: N5452

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

National Court: Toliken, AJ

Judgment Delivered: 23 November 2013

N5452

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1059 OF 2013

THE STATE

V

ELIJAH JAVUSO

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, s 229A (1); Juvenile Courts Act 1991, s 4; 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) SC 564

Saperus Yalibakut v The State (2006) SC 890

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

Counsel

J.W. Tamate, for the State

P. Moses, for the accused

JUDGEMENT ON SENTENCE

23rd November, 2013

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 Section 229A (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 anticipate that the complainant would fall pregnant and that because they are young and did not foresee consequences. He said the prisoner comes from a good family and wants to be an engineer when he grows up. Mr. Moses urged the Court to consider his future. Sending him to jail would be disastrous for him so he should be given a second chance.

9. Counsel also asked the court to consider his mitigating factors which, among others, include his plea of guilty, lack of priors and that he is a juvenile. Counsel cited three cases to assist court in deciding an appropriate sentence. The prisoners in those cases were all youthful, aged from 16 – 17 years, while the victims were aged 13 -15 years. The sentences imposed ranged from 3 – 6 years with either full or partial suspensions. (The State v Chandrol (2011) N4648; The State v Daniel (2008) N3612; The State v Biason Benson Samson (2005) N2799)

10. He submitted that and appropriate sentence in this case should be 4-6 years which can then be fully suspended with condition that he pays compensation to C and relatives.

11. Mr. Tamate on the other hand submitted that the victim’s statement reveals that this was not a consensual act at all. Rather there was some element of force involved. He said that sexual penetration of girls under the age of 16 years is a very serious crime that must attract high sentences and the younger the victim the and the higher the sentence should be. (The State v Pennias Mokei (No.2 (2004) N2635) He acknowledged though that the courts have been imposing higher sentences for older offenders while younger offenders have generally received lighter sentences. He urged the Court to impose a sentence similar to that in The State v Eddie Trosty (2004) 2681, a case involving consensual intercourse between the 21 year old offender with his 15 year old girl friend. There the prisoner was sentenced to 5 years.

12. In the current case Mr. Tamate submitted that the victim became pregnant and now has a child born to her on 27/09/13. She had a difficult delivery and the baby had to be delivered by Vaginal Extraction (VE). She therefore suffered. Furthermore she had to leave school and it is not certain if she will continue with her education. While he agreed that the Court should be mindful of the prisoner’s future and w hat a jail term would do to him and his exposure to hardened criminal, Mr. Tamate asked “what about the victim’s future, now that she has had a child and is out of school?” Certainly she deserves a better future for herself and her child too. An appropriate sentence should be 6 years subject to courts discretion. Any compensation to be left parties but the prisoner should contribute towards his child’s upbringing.

THE OFFENCE

13. Section 229A provides for the offence under consideration in the following terms –

229A. Sexual penetration of a child

(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 Section 19, to imprisonment for life.

14. As we can see the penalties are very serious. While simple sexual penetration under Subsection (1) attracts 25 years only offences with circumstances of aggravation under subsections (2) and (3) attract life sentences, subject to the court’s discretion under Section 19 of the Code.

15. These penalties are Parliament’s response to the increasing level of sexual abuse on our children especially girls and the need to protect them. They generally reflect Parliament’s and society’s view of this abhorrent behaviour.

16. Let me now briefly consider a few cases to see how the courts have treated offenders for this offence. I am grateful to Mr. Moses for citing the following cases which are very relevant to the case at hand.

SENTENCING TREND

17. The State v Chandrol (supra) per Batari J.): The prisoner, aged 17 years, sexually penetrated his 13 year old girl friend. The prisoner pleaded guilty and was a first time offender. He also expressed remorse. He was sentenced to 6 years for the purpose of both punishment and deterrence. The sentence was, however, wholly suspended and he was placed on probation with additional conditions.

18. The State v Daniel (supra) per...