The State v Joseph Pastin

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ.
• Judgment Date: 23 May 2014
• Citation: (2014) N5623
• Court: National Court
• Year: 2014
• Judgement Number: N5623

Full : CR NO. 565 OF 2012; The State v Joseph Pastin (2014) N5623

National Court: Toliken, AJ.

Judgment Delivered: 23 May 2014

N5623

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 565 OF 2012

THE STATE

V

JOSEPH PASTIN

Alotau: Toliken, AJ.

2014: 08th, 23rd May

CRIMINAL LAW – Sentence – Sexual penetration of girl under 16 years – Guilty plea – Consensual intercourse resulting in pregnancy – Complainant a primary school student – Early termination of school – Complainant 2 months shy of age of consent - Remorse shown – Offer for reconciliation, compensation and to marry complainant rejected – Prevalent offence – Appropriate sentence - 4 years less time in custody – Criminal Code Act Ch. 262, s 229A.

Cases Cited

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

The State v Daniel Javuso; Cr 1059 of 2013 (unnumbered and unreported judgment dated 23rd November 2013)

Counsel

L. Luman & B. Gore, for the State

P. Palek, for the Prisoner

JUDGEMENT ON SENTENCE

23th May, 2014

1. TOLIKEN, AJ: The prisoner was indicted with one count of sexual penetration of a girl under the age of 16 years contrary to Section 229A (1) of the Criminal Code Act Chapter 262 (as amended to date). The indictment read –

JOSEPH PASTIN of BOILAVE VILLAGE, SUAU, MILNE BAY PROVINCE, stands charged that he on the 25th day of August 2011 at BOILAVE, SUAU in Papua New Guinea, engaged in an act of sexual penetration with a child under the age of 16 years namely Texanna Doriri, then aged 15 years old, by inserting his penis into her vagina.

2. Section 229A (1) of the Code provides for the offence as follows:

“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 subsection (2) and (3), imprisonment for a term not exceeding 25 years.

(2) ...

(3) ...

2. The brief facts put to the prisoner for the purpose of arraignment we that of the prisoner had befriended the complainant prior to the incident. On 25th August 2011 the prisoner and the complainant met near the complainant’s parents’ house at about 5.00p.m. and then moved into the nearby bushes where they could hide and chat without anybody seeing them. While they were chatting the prisoner insisted on having sexual intercourse with the complainant. It was getting dark and the complainant wanted to leave before her parents started looking for her and so she allowed the prisoner to sexually penetrate her vagina using his penis. She then left and went home. The complainant was 15 years at the time of the offence.

7. I entered a provisional plea of guilty which I confirmed after I had satisfied myself from the District Court’s Depositions that the evidence supported both the plea and the charge. My perusal of the committal deposition reveals, however, that she was just a little over 2 months shy of the age of consent having been born on 14th October 1996. This brief liaison also resulted in the complainant getting pregnant and her withdrawal from Boilave Primary School where she was doing 7th Grade. I then convicted the prisoner.

8. The State alleged no priors against the prisoner. He is from Boilave Village, Suau, Alotau District, Milne Bay Province. He was 18 years old at the time of the offence and hence is would be over 20 years old now. He is single and at the time of his arrest was employed as crew to a Public Motor Vehicle. He is an Anglican and has an 8th Grade education only and is a simple villager. He had been in pre-sentence custody for 2 years 2 months and 3 weeks.

9. The issue for my determination is whether this case is the worst instance of sexual penetration therefore warranting the imposition of the maximum penalty. If not then what would be an appropriate sentence?

10. The prisoner addressed the court saying:

Sorry your Honour. I would like to apologise for breaking the law of Papua New Guinea. I would like also to apologize to the victim and to her parents for what I have done. I would like the Court to have mercy on me and give me good behaviour bond.

11. I have considered the submissions by Mr. Palek in behalf of the prisoner and Mr. Luman for the State and in particular what they said about the mitigating and aggravating factors in the case and relevant cases which they say ought to assist me in arriving at an appropriate sentence.

12. The offence of sexual penetration of a child under the age of 16 years is serious violation of the child’s body and privacy hence it is met with appropriately stiff penalties. Offenders are liable to 25 years imprisonment. However, if the child is under 12 years or there is in existence a relationship of trust, authority and dependency an offender is liable to imprisoned for life. (Section 229A (2) (3)) So what sort of sentences have this Court imposed imposeb? Let me consider a few cases.

13. The State v Chandrol (2011) N4648 ( 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.

14. The State v Daniel (2008) N3612 (Gavera-Nanu J): The prisoner, aged 16 years pleaded guilty to sexually penetrating his 15 year old girl friend. They had previously had intercourse on another occasion. The court took into account his guilty plea, he had no prior conviction, expressed remorse and only had a primary level education, there was an age difference of one year only and he was a simple villager. He was sentenced to 2 years imprisonment. This was wholly suspended and the prisoner placed on good behaviour for 2 years.

15. The State v Pennias Mokei (No.2) (2004) N2635 (Canning J.). The prisoner was found guilty after trial for sexually penetrating the victim who was a little over 13 years old. He was a first time offender but the court among other things found that the victim did not consent and there was in existence a relationship of trust of which there was a serious breach. The prisoner was sentenced to 15 years. In this case His Honour laid down some relevant factors which the court may take into account when sentencing offenders for crimes against children. His Honour subsequently expanded these in The State v Biason Benson Samson ((2005) N2799). These factors include among others, the age difference between the offender and child, the age of the child and how far below the age of consent was, whether there was consent, whether threats, weapons or aggravated violence was used, whether victim was impregnated or contracted STI, whether there was an existing relationship of trust, dependency and authority, plea, whether offender paid compensation, apologised or reconciled with victim etc.

16. The State v Biason Benson Samson (supra) per (Cannings J.): The 17 year old prisoner penetrated his 13 year old victim. He pleaded guilty, was a first time youthful offender and even though there was no consent, no violence or weapon was used nor did the victim suffer any injuries. He was sentenced to 5 years, 3 of which were suspended and he served the balance of 2 year.

17. The State v Eddie Trosty (2004) N 2681: This case involved consensual intercourse between the 21 year old offender with his 15 year old girl friend. The offender was sentenced to 5 years.

18. The State v Daniel Javuso; Cr 1059 of 2013 (unnumbered and unreported judgment dated 23rd November 2013): There the prisoner (17 at time sentence) pleaded guilty to sexually penetrating his 14 year old girl friend when he was 16 years old. I surmised that sexual intercourse was consensual but it resulted in pregnancy. The complainant also had to withdraw from school. The prisoner was a juvenile at the time he committed the offence and at the time of sentence was in the 9th Grade at Popondetta Secondary School. Given the circumstances I imposed a 5 year sentence which I then fully suspended and placed him on 3 years...