The State v A Juvenile, “GP”

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 June 2014
• Docket Number: CR NO 632 OF 2012
• Citation: (2014) N5641
• Court: National Court
• Year: 2014
• Judgement Number: N5641

Full Title: CR NO 632 OF 2012; The State v A Juvenile, “GP” (2014) N5641

National Court: Cannings J

Judgment Delivered: 24 June 2014

N5641

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 632 OF 2012

THE STATE

V

A JUVENILE, “GP”

Madang: Cannings J

2014: 22 April, 17, 24 June

CRIMINAL LAW – sentence – sexual touching of child – Criminal Code, Section 229B – guilty plea – juvenile (14-year-old male) offender, 4-year-old male victim – neighbours

A juvenile was convicted after trial of the offence of sexual touching of a child under the age of 16 years. At the time of the offence the offender was aged 14 and the victim was aged 4. This is the judgment on sentence.

Held:

(1) The maximum penalty being 12 years imprisonment, it was appropriate to use a starting point of six years and assess the mitigating and aggravating factors.

(2) Mitigating factors: no weapon or aggravated violence used against the victim; the offender was himself a child at the time; the offender is still a child; he cooperated with the Police and the courts and complied with his bail conditions; he has caused no further trouble; expressed remorse; he is a first-time offender.

(3) Aggravating factors: the victim was very young; serious breach of trust; no evidence of active reconciliation with the victim’s relatives.

(4) The sentence imposed was three years. The pre-sentence period in custody was deducted and the offender was ordered to spend nine months in custody; the balance of the sentence was suspended on conditions including formal reconciliation between the offender and the victim and their families within three months after release from custody.

Cases cited

The following cases are cited in the judgment:

The State v A Juvenile, “GS”, CR 80/2009, 20.05.10

The State v A Juvenile, “JB”, CR 66/2012, 18.05.12

The State v A Juvenile, “JF” (2012) N4827

The State v Stafford Hambo (2010) N4036

The State v Steven Archie (2009) N3727

The State v Timothy Bipi (2009) N3608

SENTENCE

This was a judgment on sentence for the offence of sexual touching of a child under the age of 16 years in circumstances of aggravation.

Counsel

F Popeu, for the State

A Meten, for the offender

24th June, 2014

1. CANNINGS J: This is the judgment on sentence for a juvenile offender, “GP”, who was convicted after trial of one count of sexual touching of a child under the age of 16 years, in circumstances of aggravation, in that the child, a 4-year-old boy, was under the age of 12 years.

2. The offence was committed on 29 April 2011 in the offender’s house. The offender lured the victim to his house by showing him a toy car. There was nobody else there, and the offender removed the victim’s trousers and rubbed his penis against the victim’s buttocks and ejaculated on to his anus. 3. The offender was 14 years old at the time. He is now aged 17, so he is still a juvenile. He will turn 18 on 25 December 2014.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He stated:

I say sorry to the Heavenly Father and to the Court and to the lawyers for what I have done. I thank my mother who has supported me throughout. I apologise to the complainant and his family. I accept that the Court has found me guilty. I am willing to compensate the complainant and his family.

PRE-SENTENCE REPORT

6. A pre-sentence report prepared by the Community Corrections and Rehabilitation Service shows that GP is the third-born in a family of ten children. He has seven brothers and two sisters. He is strongly supported by his parents and other family members. He has a grade 8 education and is in his second year of a building skills course at a Vocational Centre. He wants to find employment as soon as he can. His health is sound. He is highly regarded by local community leaders. He has not been in trouble with the law before.

7. The victim’s father says he was disgusted by the offender’s actions when he first found out about the offence committed against his son. He fears that his son, who is now seven years old, has been psychologically damaged. He wants the offender dealt with sternly so that other like-minded individuals will be deterred from committing similar crimes. He is disappointed that the offender’s parents have not taken the initiative in sorting out the matter, through reconciliation, which has resulted in the matter dragging on for three years. But the damage has been done, he says, and everyone involved has to reconcile and resolve their differences once and for all.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mrs Meten highlighted the fact that the offender committed the offence when he was a child himself, and he is still a child; he does not cease to be a juvenile until he attains the age of 18 years. He has no prior convictions. There was no physical violence involved. A sentence of no more than three years should be imposed, all of which should be suspended subject to payment of compensation.

SUBMISSIONS BY THE STATE

9. Mr Popeu agreed that a sentence of three years would be appropriate.

DECISION MAKING PROCESS

10. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the head sentence?

· step 5: should the pre-sentence period in custody be deducted?

· step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

11. The indictment was presented under Section 229B (sexual touching) of the Criminal Code, which states:

(1) A person who, for sexual purposes—

(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or

(b) compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person's own body,

is guilty of a crime.

Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.

(2) For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.

(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

(5) 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 to imprisonment for a term not exceeding 12 years.

12. The circumstances of aggravation prescribed by Section 229B(4) were charged in the indictment. The maximum penalty is therefore 12 years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

13. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a ‘starting point’ for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. The actual sentence imposed can be above, below or the same as the starting point depending on whether the aggravating factors outweigh the mitigating factors (resulting in a sentence above the starting point); the mitigating factors outweigh the aggravating factors (resulting in a sentence below the starting point); or the mitigating and aggravating factors are balanced (resulting in the starting point being the sentence). In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of six years as the starting point.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

14. As I pointed out in The State v Stafford Hambo (2011) N4120 most sentences for adult offenders for the offence of sexual touching of a child have fallen within the range of three to six years depending on the circumstances of each case and whether the offender has pleaded guilty. Where the offender is also a child the sentences have been lesser. Three recent cases provide useful points of reference.

15. In The State v A Juvenile, “GS”, CR 80/2009, 20.05.10 the 13-year-old male offender was under a quilt with the 6-year-old victim and put his hands inside her underwear and touched her vagina with his fingers. He pleaded guilty and was sentenced to two years in custody, without suspension.

16. In The State v A Juvenile,...