The State v “JK”

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 26 July 2012
• Citation: (2012) N4748
• Court: National Court
• Year: 2012
• Judgement Number: N4748

Full : CR No.5 of 2012; Independent State of Papua New Guinea v a Juvenile “JK” (Prisoner) (2012) N4748

National Court: David, J

Judgment Delivered: 26 July 2012

N4748

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No.5 of 2012

BETWEEN:

INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:

A JUVENILE “JK”

Prisoner

Mt. Hagen: David, J

2012: 5 April & 11 & 26 July

CRIMINAL LAW – sentence - indictable offence engaging in act of sexual penetration with a child under the age of 16 years – prisoner aged 12 years - child aged 3 years – introduction of penis into victim’s mouth – introduction of finger into victim’s vagina - prisoner acted alone - no use of threatening weapon or aggravated physical violence – no physical injury although perforated hymen and superficial abrasions on right side of vulva - isolated incident - cooperation with police – no further trouble to victim and family since incident - plea of guilty – demonstration of remorse – first offender – youthful offender – parental and family background and limited educational background – big age difference – victim well under age of 16 years - lack of consent – existing relationship of trust, authority or dependency – prisoner and victim distantly related – victim under care of prisoner – prisoner did not give myself up after incident – seriousness, prevalence and abhorrence of society to offence - sentence of 10 years both in light and hard labour – custodial and non-custodial sentence - Criminal Code, Section 229A (1) and (2).

Facts:

The prisoner pleaded guilty to one count of engaging in an act of sexual penetration with a child under the age of 16 years contrary to Section 229A (1) and (2) of the Criminal Code. The prisoner was a 12 year old male juvenile and the victim a 3 year old female. They were distantly related. Sexual penetration was achieved by the prisoner introducing his penis into the victim’s mouth and his hand in the victim’s vagina. Medical report revealed that the victim had a perforated hymen and existence of abrasions on the right side of the vulva. The offence was committed in the victim’s house when the babysitter went to do laundry at a nearby creek and the victim’s mother was away at work.

Held:

The prisoner was sentenced to ten years imprisonment both in light and hard labour less period served on remand. Four years was suspended on the condition that the prisoner entered into his own recognizance without surety to keep the peace and be of good behaviour for a period of four years.

Cases cited:

The following cases are cited in the judgment.

Paulus Manadatititip & Anor. v The State [1978] PNGLR 128

Peter Naibiri & Kutoi Soti Apia v The State (1978) SC 137

Public Prosecutor v Tom Ake (1978) PNGLR 469

Kuri Willie v The State (1987) PNGLR 298

Lawrence Hindemba v The State (1998) SC593

The State v Eddie Peter (No 2) (2001) N2297

The State v Damien Mangawi (2003) N2419

The State v Junior Apen Sibu (No.2) (2004) N2567

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

The State v Ezra Hiviki (2004) N2548

The State v Peter Lare (2004) N2557,

The State v Eddie Trosty (2004) N2681

The State v Kemai Lumou (2004) N2684

The State v John Ritsi Kutetoa (2005) N2814

The State v Kaminiel Okole (2006) N3052

The State v Tiama Esrom (2006) N3054

The State v Biason Benson Samson (2005) N2799

The State v Ndrakum Pu–Uh (2005) N2949

The State v Brown Kawage (2009) N3696

Counsel:

Joe Kesan & Philip Tengdui, for the State

Philip L. Kapi, for the prisoner

DECISION ON SENTENCE

26 July, 2012

1. DAVID, J: On Thursday, 5th April 2012, I convicted the male prisoner, a juvenile on a plea of guilty upon being indicted for committing an offence under Section 229A (1) of the Criminal Code; engaging in an act of sexual penetration with a child under the age of sixteen years. The victim’s age at the time of the incident of three years was charged in the indictment as a circumstance of aggravation under Section 229A (2) of the Code. The prisoner was twelve years old at the time.

2. The short facts presented to the Court for purposes of arraigning the prisoner were these. The prisoner originates from Poroma in the Southern Highlands Province, but now resides at Kumunga village, Hagen Central in the Western Highlands Province. On 21 October 2011, the prisoner was at the village with the victim at the victim’s house. The victim’s mother went to work leaving the victim with the babysitter. The babysitter left the victim with the prisoner in the house to do laundry at a nearby creek. While the babysitter was away, the prisoner undressed the victim who was three years old at the time. After locking the doors to the house, the prisoner sexually penetrated the victim by inserting his penis into the victim’s mouth and by inserting his fingers into her vagina. While doing that, the prisoner told the victim to close her eyes and he repeatedly said to her “Yu em nana bilong me ya”. The events were relayed to the victim’s mother when she returned from work in the afternoon. The victim’s mother then took the victim to the Mt. Hagen General Hospital for a medical check up. The medical report confirms that the victim’s vagina was sexually penetrated. The prisoner was apprehended and brought to the police the next day, formally arrested and charged for the offence.

3. The record of interview dated 31 October 2011 contains no admission to the offence. However, the statements of Anna Pianga and Ellaine Pianga, the victim’s mother and sister respectively and the medical report of Dr. Zzferio, O & G Service Registrar of the Mt. Hagen General Hospital dated 26 October 2011 support the charge. The victim was medically examined on 21 October 2011 at the Mt. Hagen General Hospital sometime in the evening. The medical report reveals, amongst other things, that the victim had a perforated hymen and the existence of superficial abrasions over the right region of the vulva. It was concluded that there was vaginal penetration.

4. In his allocutus, the prisoner said he was brought up in a broken home therefore having a difficult upbringing. His father had left him and his mother. He committed the offence so that his father could get the blame for his conduct.

5. Following the administration of the allocutus, the prisoner requested through his lawyer for a pre-sentence report to be provided by the Probation Service here and for a deferral of submissions on sentence pending the filing of the report. I granted the application and directed that the report be filed by 9:30 am on 12 April 2012. The report was furnished by the Probation Service as directed, but submissions on sentence could not be heard as scheduled due to my being called to help out in Waigani for the balance of the April 2012 circuit. Circuit arrangements thereafter for myself and lawyers for the parties have not made it possible for me to hear submissions on sentence until this circuit.

6. The prisoner is now 13 years old. He is the fourth born of 6 siblings in his family comprising 5 males and a female. His parents are alive, but his father left him and his mother when he was 2 years old. Until the offence, he was residing at Kumunga village which is located just outside of Mt. Hagen city with his mother and another brother and was a student at the Kelua Primary School doing Grade 3. He is a first offender. He has been in custody since 22 October 2011 and that works out to be 9 months and 4 days. He attends the Lutheran Church.

7. In mitigation it was submitted that; the prisoner is a first offender, he co-operated with the police; he pleaded guilty despite initially denying committing the offence hence saving the trouble and expense of a trial; he was a youthful offender being a juvenile; no weapon was employed; he acted alone; he expressed remorse; this was an isolated incident; and there was little or no psychological effect on the victim because she was only 3 years old at the material time to recollect what happened.

8. Mr. Kapi submitted that given the presence of a good number of factors in mitigation, more particularly the fact that the prisoner is a juvenile, he urged the court to impose a short sharp sentence that best befits the crime. He suggested that a sentence between 5 to 6 years less time spent in custody already awaiting trial and sentence partly or wholly suspended was appropriate. A prolonged detention could make the prisoner potentially dangerous than he is now because he will be exposed to bad influences by other prisoners counsel said.

9. Mr. Kapi invited me to consider two decisions of the National Court on sentence namely, The State v Biason Benson Samson (2005) N2799; and The State v Ndrakum Pu–Uh (2005) N2949. I have considered them.

10. In Biason Benson Samson, on a plea of guilty, the Court sentenced a 17 year old prisoner to 5 years imprisonment for committing the offence of sexual penetration of a child under the age of 16 years against the victim who was aged 13 years. No weapon was used, there was no aggravated physical violence or...