The State v Willie Dominic (2005) N2938

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 November 2005
• Citation: (2005) N2938
• Docket Number: CR No 158 of 2005
• Court: National Court
• Year: 2005
• Judgement Number: N2938

Full Title: CR No 158 of 2005; The State v Willie Dominic (2005) N2938

National Court: Cannings J

Judgment Delivered: 25 November 2005

N2938

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 158 0F 2005

THE STATE

V

WILLIE DOMINIC

MADANG : CANNINGS J

11, 22, 25 NOVEMBER 2005

SENTENCE

Criminal law – indictable offence – Criminal Code, Division IV.2A, Sexual Offences Against Children – Section 229A, sexual penetration of a child – sentence on plea of guilty – offender aged 17 at time of offence – child aged 14 years – no consent – offender acted alone – no weapons used or aggravated physical violence – no physical injury – no existing relationship of trust – series of incidents – offender did not surrender – cooperated with police – no trouble caused with victim since the incident – nothing tangible done towards repairing his wrong – determination of maximum penalty – expression of remorse – first offender – youthful offender – starting point for head sentence – new law – few precedents – identification of relevant considerations – application of relevant considerations – sentence of 4 years.

A young man pleaded guilty to one count of engaging in an act of sexual penetration with a child under the age of 16 years. He was 17 years of age at the time of commission of the offence. The child, a girl, was aged 14. Despite concessions to the contrary, the court could not accept that the girl consented.

Held:

(1) It is a matter of concern that both counsel agreed that the sexual intercourse that took place was consensual. The report of the interview with the complainant suggested exactly the opposite.

(2) On a plea of guilty the court is obliged to give the benefit of the doubt to the offender on matters of mitigation. But here it would not be reasonable to accept that intercourse was consensual.

(3) Lack of consent was a major aggravating factor. There were, however, many mitigating factors, principally to do with the age of the offender and his personal circumstances and the small age gap between the offender and the complainant.

(4) The maximum penalty for this offence is 25 years imprisonment.

(5) The offender was sentenced to 4 years imprisonment, 2 years of which may be later suspended on application to the court.

Cases cited

The following cases are cited in the judgment:

The State v Aaron Lahu (2005) N2798

The State v Biason Benson Samson (2005) N2799

The State v Eddie Trosty (2004) N2681

The State v George Taunde (2005) N2807

The State v John Ritsi Kutetoa (2005) N2814

The State v Kemai Lumou (2004) N2684

The State v Mark Kanupio and Others (2005) N2800

The State v Pennias Mokei (No 2) (2004) N2635

The State v Peter Lare (2004) N2557

The State v Titus Soumi (2005) N2809

PLEA

The accused pleaded guilty to engaging in an act of sexual penetration with a 14-year old child and the following reasons for sentence were given.

Counsel

N Miviri for the State

A Turi for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a young man who pleaded guilty to the offence of engaging in an act of sexual penetration with a child under the age of 16 years.

BACKGROUND

Incident

The incident giving rise to the charge took place at Madang in 2004.

Indictment

On 11 November 2005 the accused was brought before the National Court and faced the following indictment:

Willie Dominic … stands charged that he on the 10th day of October 2004 at Jomba market … engaged in an act of sexual penetration with [the complainant], a child under the age of 16 years.

The indictment was presented under Section 229A (sexual penetration of a child) of the Criminal Code.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

On 10 October 2004 in Madang the accused took the complainant, a girl aged 14 years to a house at Jomba market, Madang town. He had sexual intercourse with her by inserting his penis into her vagina.

Conviction

The accused pleaded guilty to those facts by saying ‘yes, it is true, she is my girlfriend’. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. I noted that absence of consent is not an element of the offence and the fact that the accused was a juvenile did not provide him with a defence. Both those issues are, however, relevant to the question of penalty.

ANTECEDENTS

The prisoner has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

This girl is my girlfriend. I say sorry to the court and before God for what I have done. We had this friendship for a year. This was not the first time we had had sex. She used to come to my place but her parents did not know about it. I am currently going to school and a church worker. I ask the court to be lenient on me and to give me the opportunity to complete my studies.

OTHER MATTERS OF FACT

Though the prisoner has pleaded guilty there are some issues of fact raised in the depositions and in the allocutus, which, if resolved in his favour, may be relevant to the sentence.

Principles to apply

In two recent Kimbe cases I have set out the principles to apply whenever there are significant issues of fact arising from the depositions or the allocutus that were not in the prosecutor’s summary of the facts. Those cases are The State v Mark Kanupio and Others (2005) N2800, which deals with issues arising from the depositions, and The State v Aaron Lahu (2005) N2798, which deals with issues arising from the allocutus. The principles to apply are as follows:

1 The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.

2 Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.

3 If the judge detects any significant mitigating matters in the depositions or in the allocutus that were not put to the accused in the prosecutor’s summary of the facts the judge should ascertain whether there is agreement between the prosecution and the defence on those matters.

4 If there is agreement, the judge should work on what has been agreed to unless the claims made in the depositions or allocutus are so beyond the bounds of possibility as to be unbelievable.

5 If there is a dispute between the parties about those matters, it would be appropriate for the court to take sworn evidence on them. The accused can be invited to give evidence, but cannot be forced into the witness box.

6 If, however, the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court must act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.

I now apply the above principles to the present case:

Findings

The offender pleaded guilty to a very general outline of facts. So I need to make some more specific findings, for sentencing purposes. Particularly regarding things like consent, force, threats and psychological harm to the child. There was a significant potential, mitigating factor in the depositions and allocutus: that the accused and the complainant were in a boyfriend/girlfriend relationship; and that they had had sex previously; and that the complainant consented. However, when the matter first came before the court, these claims were not supported by the pre-sentence report that was already in file, dated 22 August 2005. So I asked for a supplementary report so that the complainant, now aged 15, could be interviewed. The matter came back to court on 22 November 2005. Both counsel agreed that the offender’s claims were true. However, I am not bound by the concessions that have been made. I have examined the second pre-sentence report and it does not support what both counsel have submitted. It indicates the opposite: there was no such relationship; force was used; the child is psychologically damaged. So I do not accept any of these claims.

To reiterate:

· The offender and the complainant were not in a boyfriend-girlfriend relationship.

· They had had intercourse previously, about twice.

· The sexual encounter which constituted the offence was at the instigation of the offender.

· Sexual penetration was not consensual.

RELEVANT LAW

Criminal Code, Section 229A

Section 229A states:

(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 Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) 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, subject to Section 19, to imprisonment for life.

The penalty regime

Under the new law, the penalty regime is as follows:

· if, at the...