The State v Timothy Pinda

• Jurisdiction: Papua New Guinea
• Judge: Batari J
• Judgment Date: 06 April 2017
• Citation: (2017) N6960
• Court: National Court
• Year: 2017
• Judgement Number: N6960

Full : CR 101 of 2014; The State v Timothy Pinda (2017) N6960

National Court: Batari J

Judgment Delivered: 6 April 2017

N6960

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 101 OF 2014

THE STATE

V

TIMOTHY PINDA

Kimbe: Batari J

2016: 18 October

2017: 06 April

CRIMINAL LAW – sentence - sexual penetration of girl under 16 years – victim aged 14 years - first time offender aged 19 years – plea - sentencing principles – appropriate approach to sentencing – use of range instead of starting point as guide.

CRIMINAL LAW – sentence – particular offence - sentencing policy - sexual penetration of girl under 16 years – change in legislation increasing seriousness of offence and penalty – legislative intent not to punish sexual penetration – effect on sentencing discretion - sentence of six years imprisonment wholly suspended appropriate - Criminal Code s229A(1)

Facts

The offender pleaded guilty to one count of sexual penetration of a girl under the age of sixteen, she being, 14 years of age and the offender being 19 years of age at the time of the offence. The sexual penetration after consensus being uncontested.

Held

1. The use of a sentencing ‘scale’ or ‘range’ as a guide in sentencing is preferred to a starting point because ‘starting points’ give the impression of an inflexible sentencing option;

2. Because there are legal excuses or defences available in some factual circumstances to sexual intercourse with a girl under the age or 12, or 14 years of age, the seriousness of the offence and the aim to protect young children should not overcloud Parliament intention of defences available to the accused with the onus on the accused;

3. In the circumstances of the case a sentence of 6 years imprisonment, wholly suspended on probation terms is appropriate.

Cases Cited

John Elipas Kalabus v The State [1989] PNGLR 195

Rex Lialu v The State [1990] PNGLR 487

Stanley Sabiu v. The State (2007) SC866

Tau Jim Anis v The State (2000) SC642

The State v Polin Pochalon Lopai [1988-89] PNGLR 48

The State v Rex Lialu [1988–89] PNGLR

The State v. Ndakum Pu-Uh (2005) N2949

The State v. Penias Mokei (No 2) (2004) N2635

Counsel

A. Bray, for the State

E. Sasingian, for the Accused

SENTENCE

06 April, 2017

1. BATARI J: At a beach creek possibly on a chance encounter, the accused Timothy Pinda sexually penetrated complainant, RM for her protection. That was/is against the law because RM was then underage at 14 years. This is his sentence.

Background

2. The common facts that also form the basis for sentence are brief. On 19 September, 2013 RM was at Bia Creek, Bagum Village, Talasea. Timothy Pinda of the same village came upon her unexpectedly and took her into the bushes where he sexually penetrated her. Timothy claimed RM was his girlfriend. The victim does not accept that assertion but told the Probationer Officer, the offender had previously violated her in the same manner. There being no divergence of facts, I give the offender the benefit of doubt. Both had kept the first encounter to themselves. This is fortified by the fact that the parents only learned of the incident the next day from a third party. The complainant was then aged 14 years and attending Bagum Primary School. Timothy was aged 19.

The Offence of Sexual Penetration

3. Section 229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002 creates the offence of sexual penetration with a child under 16 years. It re-enacts and gives a combined effect to the now repealed provisions of s.213 (Defilement of girls under 12) and s.216 (Defilement of girls under 16) of the Criminal Code. The new law is non-gender specific. It also divides the offence into “simple” and “aggravated” sexual penetration.

4. The first category of sexual penetration as set out in s.229A (1) creates the offence of sexual penetration with a child under the age of 16 years. Cases involving victims over 12 years where there is no breach of trust or it does not involve persistent abuse or amount to rape come under this provision. The prescribed maximum penalty is 25 years imprisonment.

5. The second category is in Subsections (2) and (3) covers the situation where the child victim is either under the age of 12 years, or the offence involved breach of an existing relationship of trust, authority or dependency. The prescribed maximum penalty is life imprisonment.

6. Prior to the amendment, the maximum penalty for what was then the offence of “unlawful carnal knowledge of a girl under 16 years” was 5 years imprisonment and life if the victim is less than 12 years.

Effect of the new law on sexual offences against children

7. It is relevant to make some observations on what I consider, a troublesome task that confronts a sentencing judge under the new law.

8. By repealing and replacing s. 213 and s. 216 of the Criminal Code with s.229A, the intention of Parliament is clearly that sexual offences against children must meet with severe punishment. By raising the degree of seriousness of sexual offences against children, the aim is clearly to give children and the community, greater protection against all kinds and manner of sexual violations. This is reflected in the increased maximum penalty provisions. And the offence has also been made gender neutral for wider application. The prominence given to the offence is also apparent from the substitution of the term, “unlawful carnal knowledge” with the more defining term, “sexual penetration.”

9. However, it is apparent; the scheme of the new law is not to punish every act of sexual penetration against children. This is plain from the relevant provisions which provide for statutory defences against criminal responsibility. For instance, s.229F (b) permits sexual penetration between a child over 12 years with a person who is no more than two years older than the child unless, a relationship of trust, authority or dependency existed and where elements of rape are not present.

10. See also, s.229G which provides for a statutory defence of marriage. An accused person will escape criminal liability if he can show that he is married to the child who is 14 years or older. In the third exclusion provision under s.229F (a), the accused person can avoid criminal responsibility if he can show a belief on reasonable grounds, the child was 16 years or older.

11. The law in permitting a child between 12 years and 16 years sexual freedom seems logical. It recognizes that a child lacks adult maturity to discern and make informed decisions on his or her sexual behavior. This presumes that a child in that age group still lacks the moral aptitude and mental capacity of an adult to fully appreciate the legal and social implications and consequences of his or her conduct.

12. Conversely, it seems preposterous that the law allows child promiscuity and child marriage. The law in permitting marriage at 14 years presumes that a 14 year old child has the adult maturity; mental capacity and physical ability to partake in adult ways and activities. Be that as it may, the Court must interpret and apply the law as it stands.

Practical considerations on application of new Law

13. The application of the new law can present some real practical difficulty. From a conceivable view, the law makes sexual penetration of a child under 16 years a very serious crime at the same time as it recognizes and permits child promiscuity and marriage. In my view, the attribute of “seriousness” of the offence diminishes if a child over 12 years can lawfully engage in sexual activity and lawfully marry at 14 years of age.

14. This scenario also sets the stage for peculiar results. For instance, if adults A and B engage in consensus sexual penetration with two 14 year olds and unlike B, A is married to his partner; B will be deemed to have committed a very serious offence which will call for severe punishment whereas A will be excused. In another situation where A is two years older than his victim, he will be excused from criminal liability whereas B who is three years older would not. If convicted, B will be severely punished because of the purported gravity of the offence.

15. In my view, with respect, the examples call for proper evaluation of the purported seriousness of the offence, the protection of young children and the community interest against factors the accused is entitled to in mitigating his conduct. It is also my firm view, that there can be no real justice and fairness if, for technical reasons; emphasis is given to personal and general deterrence aspects of sentencing while A gets off scot-free by operation of the same law.

16. The sentence of the Court I am about to impose is considered and arrived at from that perspective. I am also ably assisted by a comprehensive pre-sentence report and means assessment report the CBC Office has compiled. The reports will be read into the records.

Sentencing Policy, Principles and Guidelines

17. Except for offences with mandatory minimum or maximum penalties, the court has unfettered discretion to impose a term of years colloquially phrased, ...