The State v Wesley Penias (2014) N5659

• Jurisdiction: Papua New Guinea
• Judge: Batari J
• Judgment Date: 13 March 2014
• Citation: (2014) N5659
• Docket Number: CR 452 of 2012
• Court: National Court
• Year: 2014
• Judgement Number: N5659

Full Title: CR 452 of 2012; The State v Wesley Penias (2014) N5659

National Court: Batari J

Judgment Delivered: 13 March 2014

N5659

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 452 of 2012

THE STATE

V

WESLEY PENIAS

Bialla/Kimbe Batari J

2014: 13 February, 13th March

CRIMINAL LAW – Practice and Procedure - Indictment charging one count of aggravated sexual penetration of a child under 16 years on allegations of victim being under 12 years – plea – age of victim - issue of, raised by accused in record of interview and observation of the victim in court – subsequent informant confirming girl over 12 years at time of offence – Indictment – amendment of subsequent to plea – power of the court to order amendment after the plea and before sentence.

CRIMINAL LAW– Sentence - Sexual Penetration – Accused sexually penetrated child under 16 years in boy/girl relationship – Plea - Factors in mitigation – sentence of 4 years wholly suspended appropriate.

Cases Cited

Papua New Guinea Cases

Kuri Willie v. The State [1987] PNGLR 298

State v Frank Kagai [1987] PNGLR 320

The State v August David (2008) N3612

The State v Herman Joseph Leahy (2008) N3570,

The State -v- Morobet Awui Komia and Petro Kevein [1987] PNGLR 262;

The State v Murray William, & 2 Ors (No 1) (2004) N2556

The State v Saul Ogerem [2004] N2780

The State v Stanley Marai Uriye o (2003) N2386

Overseas Cases

William Davey (1980) 2 A. Crim R 254,

Counsel

Mr. A. Bray, for the State

Mr. P. Moses, for the Accused

SENTENCE

13th March, 2014

1. BATARI J: You have been convicted on one count of sexual penetration of a girl under the age of 16 years, following your plea of guilty. The girl you violated was said to be 10 years old and therefore, under the age of 12 years. The prescribed penalty for sexually violating a girl under the age of 12 years pursuant to s. 229A (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, subject to s. 19 is life imprisonment.

2. There are factors on file tending to show the victim was indeed 10 years on 11/12/11, the time of the incident. She was in or had just completed grade 2 schooling. A Birth Certificate recorded the date of birth as 10/5/01 and the medical report dated 12/12/11 stated her age as 10 years old. Police Witness Statements from her natural father, the adopting father and the victim’s elementary school teacher all indicated she was 10 years when sexually violated.

3. However, in admitting the offence in the record of interview the prisoner in response to a question, “Em liklik meri or bigpela meri?” said, “Em bigpela meri.” His answer was translated as, “An adult.” This in effect, questions the evidence that the victim was 10 years old. The certificate of birth from Bialla Health Centre was quite clearly issued for use in this case. The basis or source of that information is unknown. It could well have been concocted.

4. The incidental conduct of the victim best described as permissive and cooperative, prior to, during and after the offence add to the lingering doubt about her age and maturity. Furthermore, the result of medical examination of the victim’s genitals the next day do not support the expected physical injuries a 10 year old would likely sustain from being sexually violated for the first time by an older person.

5. More crucially, the victim would this month be 13 years old and 14 in May. However, upon viewing her physical appearance in court, I was most surprised that the victim looked much older than her purported age. She could easily pass for a 16 or 17 year old. Her girl companion at the time of the incident looks to be of the same age.

6. This uncertainty was subsequently resolved by the Pre-Sentence Report. A midwife namely; Imelda Managen of Bialla Health Centre verified from the clinic records that the victim was born on 23 January 1997. That would make her 14 years old at the time of the offence and 17 years at the time of trial. On that basis and before sentence, I invited the State Prosecutor, Mr Bray to amend the Indictment to charge sexual penetration simpliciter under s. 229A (1) of the Criminal Code as amended.

7. This raises the issue of whether an amendment to the indictment is permissible at this belated stage of the trial. The prisoner has pleaded guilty and convicted on a charge of sexual penetration of a girl under 12 years pursuant to s. 229A (1) for the offence and s 229A (2) for the circumstance of aggravation. Before sentence was passed, it came to light that the victim was 14 years old at the time of the offence, consistent with my own observation and determination of the girl’s age under s. 63 of the Evidence Act.

8. Pursuant to s.535 of the Criminal Code a charge may be amended where there is no variance between the charge and the evidence or that justice is fairly done: The State v Herman Joseph Leahy (2008) N3570 (Kirriwom J), or where no issues of prejudice and injustice could have arisen: The State v Murray William, Frank William and Moses William (No 1) (2004) N2556 (Kandakasi J).

9. Section 535 reads:

“(1) If on the trial of a person charged with an indictable offence—

(a) there appears to be a variance between the indictment and the evidence; or

(b) it appears that—

(i) any words that ought to have been inserted in the indictment have been omitted; or

(ii) any words that ought to have been omitted have been inserted,

the court may, if it thinks that—

(c) the variance, omission or insertion is not material to the merits of the case; and

(d) the accused person will not be prejudiced in his defence on the merits,

order the indictment to be amended, so far as it is necessary, on such terms (if any) as to postponing the trial as the court thinks reasonable.

(2) When an indictment has been amended, the trial shall proceed at the appointed time, on the amended indictment, and the same consequences ensue in all respects and as to all persons as if the indictment had been originally in its amended form.

(3) If it becomes necessary to draw up a formal record in any case in which an amendment to an indictment has been made, the record shall be drawn up setting out the indictment as amended, and without taking any notice of the fact of the amendment having been made.”

10. There is a significant difference between the charge and the evidence of age of the victim (s.535 (1)(a)). The variation of the indictment by inserting the correct age is in my view not material to the merits of the case (s.535 (1)(a)). It is in effect in favour of the accused person. He is not likely to suffer any prejudice by the amendment (s.535 (1)(c)).

11. The justice of the case in my view will not be inexcusably amiss, nor would miscarriage of justice result, to amend the indictment at this stage to sentence the prisoner under s. 229A (1) without the statutory aggravating factorn. The proper procedure then is to vacate the plea and re-arraign the accused on the same offence without the statutory circumstances of aggravation. This will all be academic as the accused pleaded guilty to the more serious offence of sexual penetration and the amendment is his favour.

12. This is not the same situation as in The State v Saul Ogerem [2004] N2780 (Lay J) where the charge in the indictment was badly pleaded by not setting out the elements of the offence charged and not put to the accused on arraignment. In recalling and quashing his earlier acceptance of the accused’s guilty plea, the trial judge alerted defence counsel to the possible injustice to the accused person and most strangely, counsel supported the correctness of the plea of guilty and requested amendment to the charge to conform to the brief facts given for arraignment. Honour proceeded to acquit the accused, holding that:

“Although no amendment has been sought, any variance, omission or insertion would be for the purpose of turning a nullity into an effective indictment on which the Defendant could be properly convicted. Therefore it is impossible to say that the variance, omission or insertion would not be material to the merits of the case.”

13. In this case, the prisoner’s response to a question in the record of interview on the issue of age raised a possible defence of mistaken belief under s. 229F of the Criminal Code as amended. The accused had the benefit of legal advice to test the State’s case on that issue. A trial may also be an academic exercise as the prisoner may well be convicted of sexual penetration simpliciter under s. 229A...