The State v Leo Jimmy Pingina

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 25 April 2016
• Citation: (2016) N6252
• Court: National Court
• Year: 2016
• Judgement Number: N6252

Full : CR No 6 of 2014; The State v Leo Jimmy Pingina (2016) N6252

National Court: Davani J

Judgment Delivered: 25 April 2016

N6252

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 6 OF 2014

BETWEEN:

THE STATE

AND:

LEO JIMMY PINGINA

Prisoner

Popondetta: Davani J

2016: 08th April & 25th April

Counsel:

Mr D. Kuvi, for the State

Mr E.Yavisa, for the Prisoner

SENTENCE

25th April, 2016

1. DAVANI J: On 8th April, 2016, the State presented an Indictment alleging that LEO JIMMY PINGINA (the “Offender”), had sexually penetrated VB (“Victim”) on 24th August, 2013, a female child , who was aged 15 years at the date of the offence, in breach of s.229A(1) of the Criminal Code.

2. The Offender pleaded guilty to this offence.

S.229 A (1) reads;

229 (A) 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”

Facts

3. The facts which the Offender pleaded guilty to are that, on the date of the offence, the Offender and the Victim were in a relationship, that is, the Victim was the Offender’s girlfriend, and vice versa. On 24th August, 2013, the Offender sent the Victim a text message asking that they meet somewhere, which the Victim agreed to do. Thereafter, the Offender and the Victim, met at the Victim’s parent’s house in Popondetta town, and had consensual sex.

4. The Offender acknowledged that when the act of sexual penetration occurred, that the Victim was aged 15, below the age of 16 years. This fact is not disputed.

5. Aggravating features i.e. the use of weapons, are not alleged by the State (against the Offender) in this case.

Aggravating features

6. The only aggravating aspect of this case is the fact that the Victim was aged below 16 years.

7. There may have been other instances where the Offender could have exercised some force upon the Victim, however, this court is confined to the facts the Offender pleaded guilty to.

Mitigating features

8. Obviously, the Offender’s guilty plea saved the court a lot in the way of time and money.

9. The Offender was also apologetic and remorseful.

10. This is the Offender’s first offence.

Analysis of submissions and the law

11. Although the Offender claims to be the Victim’s boyfriend and that sex was consensual, the fact that sexual penetration occurred between a 20 year old and a 15 year old, is in itself an offence in Papua New Guinea. The issue of possible consent between a minor and an Offender, in my view, is not a mitigating factor especially where the prescribed offence states in no uncertain terms, that sexual penetration of a child under the age of 16 years is a crime. And the Offender cannot feign ignorance, especially in a situation such as this where the Offender would obviously have known that the Victim was younger than him.

12. The Court papers show that sex may not have been consensual in this case in that the Victim was threatened into having sex. Which is why, for evidence that is untested, a court must not place reliance on it, but can accept, on the face of it, the Offender’s guilty plea. And that in itself, is a mitigating factor.

13. I ordered the production of a Pre-Sentence Report (“PSR”) upon application by Defence Counsel, which was not opposed by counsel for the State. Defence Counsel submitted that the court imposes a suspended sentence and that the Offender be placed on probation. However, Defence Counsel did not make any submissions on the conditions to be imposed, only submitting that the mandatory conditions under s.17 of the Probation Act be imposed without making any submissions on what these conditions were, an undesired situation indeed.

14. Counsel for the State submitted that the court exercise its sentencing discretion under s.19 of the Criminal Code and more particularly, to take note of the principles held in Public Prosecutor V Don Hale SC 564..

15. Below are some case authorities I considered, to assist me in the sentencing process.

· State v Eddy Trosty N3165

Offender and the victim were boyfriend and girlfriend. The victim was 15 years old and the prisoner, 21. They both had consensual sex, several times. The offender was sentenced to 6 years on a guilty plea.

· State v Waninara Judas (2007) N3195

In this case, the trial Judge compared sentences for sexual offences, more particularly the offence of sexual penetration under s. 229A(1) or s.229A(2). He noted that some imposed sentences were considerably high. The trial Judge referred to State v Thomas Angup where the offender was charged with several counts of sexual penetration and sexual touching of an under aged girl. The offender was sentenced to 20 years imprisonment. In The State v Kemai Lumou (2004) N2684, the victim was aged 14 years and the offender, 22 years. He was convicted after a trial on a charge under s.229A (1). The victim was a close relative of the offender. The offender threatened the victim with a bush knife and sexually penetrated her. The court sentenced the offender to 17 years. In The State v EsromTiama (2006) N3054, the offender pleaded guilty to 1 count of sexual penetration under s.229A (1) aggravated by an existing relationship of trust, dependency and authority. The victim was only 9 years; the offender was aged approximately 50 years. He was sentenced to 12 years. 2 years were suspended with conditions and to be placed on good behaviour bond after service of the total sentence.

· In The State v Wesley Penias (2014) N5659

The offender pleaded guilty to one count of sexual penetration of a girl under the age of 12 years, pursuant to s.229A (2) of the Criminal Code, as amended. The Offender was 17 years old. However, during the hearing, the trial Judge observed that the victim appeared older than the age of 12 years, which would have her about 14, at the date of the offence. After amending the indictment, the trial Judge considered all the facts, including the fact that the act of sexual penetration was consensual in that in this case, the victim agreed to follow the offender where they then had sex, then spent the night together.

16. The trial Judge imposed a sentence of 4 years then suspended the whole term, on stringent conditions including reporting.

17. Of course there is the case of The State v Pennias Mokei (No. 2) (2004) N2635, where the court set out the factors that can be considered when considering a case such as this, involving a minor, and which principles were reconsidered in The State v George Taunde (2005) N2807. This case is not as serious as Pennias Mokei and George Taunde so I will settle only for the relevant factors discussed in Pennias Mokei and changed slightly in George Taunde, which are;

· There is an age difference of 4 years.

· The Victim is a year below the prescribed age of 16.

· There was consent but not real consent so it is not a strong mitigating factor (see The State v George Taunde (supra)).

· There was only one offender.

· No physical violence or threatening weapon was used.

· No physical injury done to the victim.

· The victim did not get a sexually transmitted disease.

· According to the court file, it was an isolated incident.

· The Offender gave himself up after the incident.

· The Offender cooperated with the police.

· No compensation or something tangible done to or for the victim to repair the wrong done to her.

· Offender has not caused further trouble for the victim.

· Offender pleaded guilty.

· Offender expressed remorse.

· Offender’s first offence.

· Offender is youthful.

18. Indeed, a sentence of 4 years is warranted under the circumstances. The factors above are wholly favourable to the Offender, the effect of which is that this court will exercise its discretion under s.19 of the Criminal Code, as amended, to wholly suspend the sentence. The Offender will also be placed on stringent reporting and working conditions.

19. The PSR does not address conditions, which I find very inadequate. The Probation officers must bear in mind that when offenders are placed on probation, it is still a form of punishment for them, but rehabilitative and corrective in nature. We may not have the fancy set ups that Western countries have, to service the probationers, so we should make the most of what we have. Which is why I will place the Offender on a cleaning programme of the Popondetta Town area, to be supervised by the Probation Officer and to report to the Court, every month?

20. In relation to the mandatory conditions in s.17 of the Probation Act, although Mr Yavisa submitted that I impose these mandatory conditions, Mr Yavisa did not even have a copy of that act in court, let alone ss.17 and 18. It seems Mr Yavisa has this misconceived notion that he need only mention the legislation or any legislation for that matter. Mr Yavisa is expected to make submissions on those conditions, more particularly, those that are...