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State v Javuso [2013] PGNC 321; N5452 (23 November 2013)

N5452

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1059 OF 2013

THE STATE

V

ELIJAH JAVUSO

CRIMINAL LAW – Sentence – Sexual Penetration of a girl under 16 years – Juvenile offender – Mitigating factors - Guilty plea – first time offender – One-off incident – Consensual intercourse – No injuries or violence – Aggravating factors – Prevalent offence – Complainant became pregnant and has had a child - Interest of juvenile offender of paramount consideration – Need to balance interest of juvenile with need to discourage delinquency -Need to protect rights and interest of child victims including the infant child – Sentence of 5 years – Appropriate case for full suspension to promote for deterrence and rehabilitation – Criminal Code Act Ch. 262, s 229A (1); Juvenile Courts Act 1991, s 4; Lukautim Pikinini (Child) Act 2009 (No.7 of 2009).

Cases Cited in Judgment:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No. 3) [1982] PNGLR 92
Public Prosecutor v Don Hale (1998) SC 564
Saperus Yalibakut v The State (2006) SC 890
The State v Chandrol (2011) N4648
The State v Daniel (2008) N3612
The State v Biason Benson Samson (2005) N2799
The State v Pennias Mokei (No.2) (2004) N2635
The State v Eddie Trosty (2004) 2681

Counsel

J.W. Tamate, for the State
P. Moses, for the accused

JUDGEMENT ON SENTENCE

23rd November, 2013

1. TOLIKEN, AJ: Prisoner pleaded guilty to the charge that between the month of November 2012 and 16th of February 2013 at Siroga Oil Palm Estate, Northern Province, he sexually penetrated one Yoshabel Arenadi, a girl under the age of 16 years. This is an offence against Section 229A (1) of the Criminal Code Ch. 262 (the Code).
   

BRIEF FACTS

2. On a date between November 2012 and 16th February 2013 the complainant and the prisoner were going to the market at Double Cross. Along the way as they were walking under the oil palm trees at Siroga block the prisoner sexually penetrated the complainant. The Complainant was then aged 14 years and the prisoner was 16 years old.
   
3. The complainant did not report the matter to relatives. Two months later her mother noticed a change in the appearance in the complainant and requested a female HEO to check her. It was found that she was pregnant. The complainant told her mother that the prisoner was the father of her child. The accused was then arrested and charged. The prisoner was 16 years old.
   
4. I confirmed the prisoner's plea after reading the committal depositions and accordingly convicted him.
   

ANTECEDENTS

5. The prisoner is now 17 years old but was 16 at the time of the offence. He is of mixed Milne Bay and Popondetta parentage and is the second born in a family of four. He is currently doing Grade 9 at Popondetta Secondary School. He is a first time offender.
   

ALLOCUTUS

6. In his address to the Court the prisoner said that the complainant was his steady girl friend. One day he was at the market when the complainant came. She asked him to follow her and he did. When they came to a secluded spot they sat down hugged and kissed. She then asked him to quickly have sex with her before people came. She undressed and the prisoner said he pulled down his trousers and they had sex. After that they dressed and then left with the prisoner following the complainant. When they came to the road and parted and went to their respective houses. The prisoner pleaded for mercy on him because he is a student.
   

PRE-SENTENCE REPORT

7. I ordered a Pre-Sentence Report (PSR) for the prisoner. Basically the PSR is favourable to the prisoner. It recommends probation because of his age and the fact that he is a student.
   

SUBMISSIONS

8. Mr. Moses submitted that the complainant and the prisoner had consensual sex and did not anticipate that the complainant would fall pregnant and that because they are young and did not foresee consequences. He said the prisoner comes from a good family and wants to be an engineer when he grows up. Mr. Moses urged the Court to consider his future. Sending him to jail would be disastrous for him so he should be given a second chance.
   
9. Counsel also asked the court to consider his mitigating factors which, among others, include his plea of guilty, lack of priors and that he is a juvenile. Counsel cited three cases to assist court in deciding an appropriate sentence. The prisoners in those cases were all youthful, aged from 16 – 17 years, while the victims were aged 13 -15 years. The sentences imposed ranged from 3 – 6 years with either full or partial suspensions. (The State v Chandrol (2011) N4648; The State v Daniel (2008) N3612; The State v Biason Benson Samson (2005) N2799)
   
10. He submitted that and appropriate sentence in this case should be 4-6 years which can then be fully suspended with condition that he pays compensation to C and relatives.
    
11. Mr. Tamate on the other hand submitted that the victim's statement reveals that this was not a consensual act at all. Rather there was some element of force involved. He said that sexual penetration of girls under the age of 16 years is a very serious crime that must attract high sentences and the younger the victim the and the higher the sentence should be. (The State v Pennias Mokei (No.2 (2004) N2635) He acknowledged though that the courts have been imposing higher sentences for older offenders while younger offenders have generally received lighter sentences. He urged the Court to impose a sentence similar to that in The State v Eddie Trosty (2004) 2681, a case involving consensual intercourse between the 21 year old offender with his 15 year old girl friend. There the prisoner was sentenced to 5 years.
    
12. In the current case Mr. Tamate submitted that the victim became pregnant and now has a child born to her on 27/09/13. She had a difficult delivery and the baby had to be delivered by Vaginal Extraction (VE). She therefore suffered. Furthermore she had to leave school and it is not certain if she will continue with her education. While he agreed that the Court should be mindful of the prisoner's future and w hat a jail term would do to him and his exposure to hardened criminal, Mr. Tamate asked "what about the victim's future, now that she has had a child and is out of school?" Certainly she deserves a better future for herself and her child too. An appropriate sentence should be 6 years subject to courts discretion. Any compensation to be left parties but the prisoner should contribute towards his child's upbringing.
    

THE OFFENCE

13. Section 229A provides for the offence under consideration in the following terms –
    

229A. 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 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.

14. As we can see the penalties are very serious. While simple sexual penetration under Subsection (1) attracts 25 years only offences with circumstances of aggravation under subsections (2) and (3) attract life sentences, subject to the court's discretion under Section 19 of the Code.
    
15. These penalties are Parliament's response to the increasing level of sexual abuse on our children especially girls and the need to protect them. They generally reflect Parliament's and society's view of this abhorrent behaviour.
    
16. Let me now briefly consider a few cases to see how the courts have treated offenders for this offence. I am grateful to Mr. Moses for citing the following cases which are very relevant to the case at hand.
    

SENTENCING TREND

17. The State v Chandrol (supra) per Batari J.): The prisoner, aged 17 years, sexually penetrated his 13 year old girl friend. The prisoner pleaded guilty and was a first time offender. He also expressed remorse. He was sentenced to 6 years for the purpose of both punishment and deterrence. The sentence was, however, wholly suspended and he was placed on probation with additional conditions.
    
18. The State v Daniel (supra) per (Gavera-Nanu J): The prisoner, aged 16 years pleaded guilty to sexually penetrating his 15 year old girl friend. They had previously had intercourse on another occasion. The court took into account his guilty plea, he had no prior conviction, expressed remorse and only had a primary level education, there was an age difference of one year only and he was a simple villager. He was sentenced to 2 years imprisonment. This was wholly suspended and the prisoner placed on good behaviour for 2 years.
    
19. The State v Pennias Mokei (No.2) (supra). The prisoner was found guilty after trial for sexually penetrating the victim who was a little over 13 years old. He was a first time offender but the court among other things found that the victim did not consent and there was in existence a relationship of trust of which there was a serious breach. The prisoner was sentenced to 15 years. In this case His Honour Cannings J. laid down some relevant factors (which he expanded on in The State v Biason Benson Samson (supra)) which the court may take into account when sentencing offenders for crimes against children. These factors include among others, the age difference between the offender and child, the age of the child and how far below the age of consent was, whether there was consent, whether threats, weapons or aggravated violence was used, whether victim was impregnated or contracted STI, whether there was an existing relationship of trust, dependency and authority, plea, whether offender paid compensation, apologised or reconciled with victim etc.
    
20. The State v Biason Benson Samson (supra) per (Cannings J.). The 17 year old prisoner penetrated his 13 year old victim. He pleaded guilty, was a first time youthful offender and even though there was no consent, no violence or weapon was used nor did the victim suffer any injuries. He was sentenced to 5 years, 3 of which were suspended and he served the balance of 2 year.
    

CURRENT CASE

21. Let me now consider the particular circumstances of this case in order to arrive at an appropriate sentence. The following mitigating facts can be found in the prisoner's favour. He made a very early guilty plea thus saving time and money for the State had a trial been run. He is a juvenile and a first offender, merely 16 years old when he committed the offence. Despite the complainant's claim to the contrary I believe the prisoner that sexual intercourse was consensual. (Saperus Yalibakut v The State (2006) SC 890) This was also a one-off incident and the prisoner acted alone, no weapons were used nor did the complainant suffer any physical injuries. Lastly there a small age difference of 3 years between the prisoner and the complainants. (The State Pennias Mokei (No.2) (supra))
    
22. On the other hand I find the following aggravating factors. This ill conceived liaison resulted in pregnancy which without doubt has resulted negatively on the complainant's future including but not limited to prospects of a good education not to mention that she will have to care for the infant child also. The offence is very prevalent and that is also appropriately considered. But can this case be categorized as a worst case to attract the maximum prescribed penalty of 25 years? If not what should be an appropriate sentence and is it an appropriate case for a suspension of sentence?
    
23. I agree with counsel that this is not a worst instance of this type of offence to attract max of 25 years. It is accepted that the maximum penalty is reserved for the worst offences and that each case must be treated on its own merits. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92)
    
24. Sentencing youthful offenders is not an easy task. It is particularly difficult when it comes to juveniles for while a juvenile's interest must remain paramount (Juvenile Courts Act of 1991, s 4), that interest must be balanced with the need to discourage delinquency and the interest the State and the victim. The task is made more difficult when a good proportion of serious and violent crimes are committed by young people including juveniles.
    
25. The Court is too aware of the dangers that await first time young men and juveniles in our jails from exposure to hardened criminals. Hence a judge or magistrate who sentences a juvenile to prison runs a real risk in sentencing him to a life-long career in crime.
    
26. While there is need for punishment to exact respect for the rights of our young girls and hopefully for personal and general deterrence, the over-riding purpose for sentencing for juvenile should be correction and reform.
    
27. However, sexual offences involving juvenile victims and offenders are on the rise and this presents a special challenge for a sentencing court. Where a child victim falls pregnant to a juvenile offender the court will have a difficult task in weighing the competing interest of the parties and the child that is born out of the act. While the Juvenile Courts Act 1991, s 4 protects the rights of juvenile offenders the court is not blind to the need to protect the rights of child victims too under the Lukautim Pikinini (Child) Act 2009 (No.7 of 2009).
    
28. Mr. Moses submitted that the prisoner wants to be an engineer when he grows up and therefore the court should appropriately take his future into account. To that Mr. Tamate asks "what about the complainant's future now that she has become pregnant and bore a child and is now out of school?" And if I might venture to add, what about the future of the real victim in this case, the baby?
    
29. We live in a society where morals are spiralling downwards, where kids get sexually active at a very young age resulting in teen pregnancies – babies having babies. It does not seem to matter anymore that one comes from a very good stable family. So any plea that the offender comes from a good stable Christian family really does not carry any weight at all. If anything Christian principles of virtue, chastity and abstinence from fornication are all but forgotten or brushed aside for quick sexual gratification by our young people without the slightest concern for the consequences.
    
30. Young people like the prisoner and the complainant in this case ought to know that sex comes with responsibility and consequences. If they chose to become sexually active at an early age when they are but children they will reap the reward of either falling pregnant or contracting an STI. And to top it all off – there are criminal penalties for pre-age of consent sexual intercourse regardless of whether one is a juvenile, youthful or adult offender.
    
31. Everything considered I think that taking into account the mitigating factors and the aggravating factors, an appropriate sentence should be 5 years imprisonment. This sentence is basically for personal and general deterrence and reform. While it is true that rehabilitation or correction is the primary purpose of sentencing for juvenile offenders I think that rehabilitation or reform can only truly happen with a contrite and willing heart. Therefore no sentence, no matter how well-meaning the sentencing judge may be, can truly reform any prisoner without a strong personal desire and deliberate choice by that person to change for the better. So, whether the prisoner will or not depends entirely on himself.
    
32. I therefore sentence the prisoner to 5 years imprisonment. Should any of this be suspended?
    
33. The prisoner's PSR is favourable and the fact that his education will be adversely affected if he is to be incarcerated for the full term or part of it for that matter, justifies a full suspension of the sentence with conditions. (Public Prosecutor v Don Hale (1998) SC 564)
    
34. The prisoner's age and the fact that kids at his age do get themselves into situations such as the one he is in now, I should not lose sight of the fact that my decision today will basically make or break this young man. Any period of incarceration will definitely be disastrous for him both psychologically and on his future basically as far as his education is concerned. I must also not lose sight of the fact that as a juvenile his interest must remain paramount consideration while not losing sight of the need for personal as well as general deterrence for an offence that is increasingly becoming prevalent. And the best way to achieving this in respect of the prisoner before me is through a full suspension.
    
35. Therefore the sentence of 5 years is fully suspended and the prisoner is placed on probation for a period of 3 years with the following additional conditions –
    
    1. He shall not consume any form of intoxicating liquor or hallucinating drugs.
       
    2. He shall apologise and reconcile with the complainant and her family under the supervision of the Provincial Probation Officer Robyn Sirute within three months from today.
       
    3. In the event that compensation is demanded by the complainant and her family such compensation shall be received and held in trust for the child born to the complainant but such sum shall not exceed K5000.
       
    4. The Probation Officer shall report to the court if such a payment is made on the first sitting of the Court immediately following payment for the Court's endorsement of such payment.
       
36. Finally it is ordered that prisoner's bail of K1000 and his guarantors' cash sureties of k350 each be refunded.
    

Orders accordingly.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner