The State v Jessie Chadrol (2011) N4648

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

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

National Court: Batari J

Judgment Delivered: 23 May 2011

N4648

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 265 OF 2009

THE STATE

V

JESSIE CHADROL

Lae: Batari J

2011: 11 April

: 23 May

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. Ndakum Pu-Uh (2005) N2949

The State v Rex Lialu [1988–89] PNGLR

The State v Polin Pochalon Lopai [1988-89] PNGLR 48

Counsel

H. Simon, for the State

L. Vava, Jnr., for the Accused

SENTENCE

23 May, 2011

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 s.213 (Defilement of girls under 12) and s.216 (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 s.229A (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 Section 19, 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 with s229A of the Code as amended, Parliament clearly intended to provide for a more serious offence of sexual penetration against children. In effect, the scheme of the whole amendment is clearly to give children greater protection by raising the degree of seriousness for all kinds and manner of sexual violations and by treating sexual offences against children much more serious than had been the case in the past.

9. Hence, the offence of sexual penetration is now much more serious with increased maximum penalty provisions. And it has been made gender neutral so that it has a wider application. The prominence given to the offence is also apparent from the substitution of the term, “unlawful carnal knowledge” with the more defining term, “sexual penetration.”

10. However, in my view, the scheme of the new law is clearly not to punish every act of sexual penetration involving children. This intention is evident from exemption of certain classes of child sexuality from criminal responsibility. For instance, s.229F (b) permits sexual penetration between a child over 12 years with a person who is no more than two years older than the child where that person has no existing relationship of trust, authority or dependency with the child and where elements of rape under ss. 347 and 347A are not present.

11. Section 229G which provides for a statutory defence of marriage is another provision that exempts prosecution under the Act. An accused person will escape criminal liability if he can show that he is married to the child who is 14 years or older. In the third exclusion provision under s.229F (a), the accused person can avoid legal responsibility if he believed on reasonable grounds at the time of the offence that, the child was 16 years or older or (b) the child was 12 years or older and the accused no more than two years older than the victim.

12. The law in permitting a child between 12 years and 16 years sexual freedom is logical. It recognizes child psychology and innocence which assumes lack of adult maturity to know and to make informed decisions on his or her sexual behavior. This presumes that a child in that age group still lacks the moral aptitude and mental capacity of an adult to fully appreciate the legal and social implications and consequences of his or her conduct.

13. Conversely, it is paradoxical that a girl can get married at 14 years. This assumes that a 14 year old girl has the adult maturity, mental capacity and physical ability to appreciate and partake in adult ways and activities. Be it as it may, the Court must interpret and apply the law as it stands.

Practical considerations on application of new Law

14. The enforcement of this offence can present some real practical difficulty from a conceivable view that, the law makes sexual penetration of a child under 16 years a very serious crime at the same time as it recognizes and gives validity to child promiscuity and marriage. In my view, the attribute of “seriousness” of the offence lapses into insignificance if a child over 12 years can lawfully engage in sexual activity and lawful to wed at 14 years.

15. What this means in practice is that, if A and B engage in consensus sexual penetration with two 14 year olds and unlike B, A is married to his partner; B will be severely punished whereas A will be excused. In another scenario where A is two years older than his victim, he will be excused from criminal liability whereas B would not. If convicted, B will be severely punished because of the purported seriousness of the offence.

16. Hence, the seriousness of the offence and the aim to protect young children should not alone, be the overriding factors in sentencing sexual penetration cases. It is also my firm view that, there can be no real justice and fairness if for technical reasons in the examples given; B must be heavily punished for his crime as well as deter others while A gets off scot-free by operation of the same law.

17. The sentence of the Court I am about to impose is considered and arrived at from that perspective. And as an aid to this difficult task of sentencing the prisoner, I am ably assisted from comprehensive pre-sentence report and means assessment report the CBC Office has compiled. The...