The State v Kevin John

• Jurisdiction: Papua New Guinea
• Judge: Gora, AJ
• Judgment Date: 27 March 2018
• Citation: (2018) N7459
• Court: National Court
• Year: 2018
• Judgement Number: N7459

Full : CR 1005 & 1010 of 2017; The State v Kevin John and Jack Paul Paren (2018) N7459

National Court: Gora, AJ

Judgment Delivered: 27 March 2018

N7459

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1005 & 1010 OF 2017

THE STATE

V

KEVIN JOHN AND JACK PAUL PAREN

Lorengau: Gora, AJ

2018: 15 & 27 March

CRIMINAL LAW – Sexual penetration – Criminal Code Section 299 A (1) – Guilty Plea – Appropriate sentence

CRIMINAL LAW – Mitigating and Aggravating factors reflective on sentence – prisoners are juveniles – suspended sentence with conditions appropriate.

Cases Cited

Avia Aihi v. The State (No.3) (1982) PNGLR 92

Goli Golu v. The State (1979) PNGLR 653

State v. Chadrol (2011) N4648

State v. LP (Juvenile) (2016) PGNC 222

State v. Peter Philip (2010) N3690

State v. Peter Frank (2017) N6732

State v. Tommy Nand (2014) N5591

Ure Hane v. The State (1984) PNGLR 105

Counsel:

F Popeu, for the State

T Kaleh, for the Appicant/Accused

RULING ON SENTENCE

27th March, 2018

1. GORA AJ: Prisoners KEVIN JOHN AND JACK PAUL PAREN are Juveniles from Derimba village in the Manus Province and both attend Derimba Primary School and are in the 8th grade. The victim child also attends Derimba Primary School.

2. Both prisoners pleaded guilty to one count of Sexual Penetration of one Vincianna Malai, a minor aged 14 years at the material time, contrary to Section 229A(1) of the Criminal Code.

3. They pleaded guilty to an Indictment in the following terms:

Count 1: KEVIN JOHN of DEREMBAT, LORENGAU MANUS PROVINCE stand charged that he on the 31st day of March 2017 at Londrau, Manus Province in Papua New Guinea sexually penetrated VINCIANNA MALAI by inserting his penis into her vagina, a child under the age of 16 years old then 14 years old.

Count 2: JACK PAUL PAREN of DEREMBAT, LORENGAU MANUS PROVINCE stand charged that he on the 31st day of March 2017 at Londrau, Manus Province in Papua New Guinea sexually penetrated VINCIANNA MALAI by inserting his penis onto her vagina, a child under the age of 16 years old then 14 years old.

FACTS

4. Facts are that on Friday 31st March 2017 between 3:00pm and 4:00pm the complainant child VINCIANNA MALAI was at Londrau Bay walking home from school. She walked down the road until she came to a big tree when a boy jumped out from behind the tree and grabbed her left hand from behind. She turned around and saw the prisoner JACK PAUL PAREN. The prisoner held her hand and pulled her into the nearby bushes then to a river. At the side of the river victim child noticed another person come out from the bushes. She saw it was prisoner KEVIN JOHN.

5. Both prisoners took the victim child to a coconut tree near the side of the river and told her to remove her clothes. Out of fear she removed her clothes. Prisoner Jack Paul Paren then ordered her to lie down on the ground. At that point prisoner Kevin John went back into the bushes while Jack Paul Paren removed his trousers and lay on top of her and sexually penetrated her by inserting his penis into her vagina and continued penetrating until he ejaculated inside her vagina. Prisoner then wore his clothes and ran away. Whilst the victim was still on the ground naked the other prisoner Kevin John came out from the bushes and went to where the victim child was, removed his trousers and sexually penetrated her until he ejaculated inside her vagina. He then wore his trousers and ran away too.

ISSUE

6. The issue is what is the appropriate penalty to impose on the prisoners for this offence?

THE LAW

7. Both prisoners pleaded guilty to the charge under Section 299A (1) of the Criminal Code. This Section creates the offence and also prescribes the penalty.

Thus Section 229A (1) provides that “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.”

APPLICATION OF LAW

8. Imprisonment for a term not exceeding 25 years is the maximum penalty imposed by law. However it is now a law in this jurisdiction that the maximum term is reserved for the worse cases only. This point has been well demonstrated in the cases of Goli Golu v. The State (1979) PNGLR 653; Ure Hane v. The State (1984) PNGLR 105; Avia Aihi v. The State (No.3) (1982) PNGLR 92.

9. Is this a worse type of case?

Counsels have referred the court to certain case authorities to consider for comparison purposes and to determine an appropriated penalty for the prisoners.

(a) State v. Tommy Nand (2014) N5591. This case explains that upon conviction of a prisoner under Section 229A (1) (i.e sexual penetration of a child one under 16years old), and if there exists aggravating factors, the penalty is increased to life imprisonment from 25 years. The Legislative intent is that the starting point here will began at 25 years and then sentence then manoeuvre up and down in balancing on appropriate sentence. Such construction gives effectiveness to the intention of the Parliament who saw fit to increase penalties in an attempt to protect our vulnerable folks in society, especially our children.

(b) State v. Peter Philip (2010) N3690. In this case a 20 year old prisoner had consensual sex with a 15 year old victim. Sawong J imposed a term of 5 years after considering the relevant mitigating and aggravating factors which included among other things, that the prisoner pleaded guilty, was a first time offender a youthful offender and that he was remorseful. But against this he found one aggravating factor – that there was an age disparity of 5 years between the prisoner and the victim. His honour deducted the period spent in custody, fully suspended the balance and placed the prisoner on 18 month probation with condition.

(c) State v. Peter Frank (2017) N6732. In this case prisoner pleaded guilty to 2 counts of Sexual Penetration of victim Freda Frank, a child under the age of 16 years who was then 15 years pursuant to Section 229A (1) of the Criminal Code (as amended). The Prisoner who was 44 years old at the time tricked the victim into accompanying him to Laiagam on a PMV and return as he was paying the fares. Victim went along with him thinking that they would return the same day in the afternoon. When they arrived in Laiagam it got dark and the victim was unable to make the return trip. Prisoner then lured her into one of his brother’s family house and stayed overnight. In the night the prisoner forcefully sexually penetrated the victim. On the next incident the prisoner lured the victim into his room at his work place at Maip Covec camp and sexually penetrated her. Considering the aggravating and mitigating factors and the trends of sentencing on charges of Sexual Penetration of victims under 16 years, the court imposed, sentence of 5 years IHL on each count and sentences to be served concurrently. However the 5 years term was wholly suspended with Good Behavior Bond for 2 years.

(d) State v. Chadrol (2011) N4648. In this case the Prisoner pleaded guilty to one count of Sexual Penetration of a girl under the age of 16 years, she being his girlfriend, 13 years of age and the offender being 17 years of age at the time of the offence. The sexual penetration was consensual. In the circumstances of the case a sentence of 6 years was imposed and was wholly suspended with conditions.

(e) State v. LP (Juvenile) (2016) PGNC 222. In this case the prisoner (a juvenile) pleaded guilty to one count of Sexual Penetration of a child with circumstances of aggravation under Section 229A (1), (2), and (3) of the code. The prisoner was 17 years old at that time and was the step brother of the victim child. He was drunk and arrived at the complainant’s house. He was drunk and talkative and expressing his grievances at the complainants mother who was his stepmother. At that time the victim child was sitting on the veranda of the house. He grabbed the child’s vagina and forcefully pushed his fingers into her vagina and squeezed it with his fingers. The child felt pain but did not tell anyone until the mother noticed the way she was walking and took her to the hospital where she revealed what happened. He was sentence to 5 years was wholly suspended with strict conditions.

10. In view of the above cases, defense counsel has proposed a 5 years term of imprisonment for each prisoners whilst the prosecuting counsel has suggested 8 years.

11. I note that the sentencing range applied in these cases is from 5 to 6 year with discretion to suspending portions of the term.

12. However as alluded earlier, each case must be considered on its own peculiar facts and circumstances. Thus in the present case I take note of the mitigating and aggravating factors.

Mitigating Factors in favour of the prisoners:

(a) The both prisoners pleaded guilty to the charge thus saving court and State time and resources to run a trial.

(b) First time offenders – Both prisoners are first time offenders and it’s their first time in court.

(c) Both prisoners have expressed remorse by saying sorry for what they have done.

(d) They have cooperated well with the police and have regularly attended to their court.

(e) Victim did not sustain any serious injuries.

(f) No threats were issued,...