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 (1). I ventured to accept the guilty plea and convict on the more serious charge albeit, it was open not to accept the plea and order a trial. That technicality remains open for the accused to ponder. 

14.	The facts of the case are that shortly before the incident, the prisoner was playing rugby while the victim watched from the sideline with a girl friend. At the end of the game and while returning to her Banana block residence within Bialla, the prisoner caught up with the victim and beckoned her to follow him. She obliged and left her girl friend. The prisoner took her to the nearby bushes beside a church yard and they had sexual intercourse. They then walked together to the prisoner's nearby Ewasse village where they spent the night in his family home. The next morning, he saw her off at the bus stop. 

15.	The medical examination does not reveal anything remarkable about the sexual encounter. The vaginal sites were normal. The hymen was absent and there was slight bleeding on the cervical opening. It is not known if the bleeding was connected with the absence of the hymen.

16.	The offence of sexual penetration ordinarily carries the maximum penalty of 25 years under s.229A (1) of the Criminal Code as amended. Where circumstances of aggravation are present, the prescribed maximum penalty is life imprisonment under s. 229A (2). The statutory aggravating factor initially charged in this case is that the girl was under the age of 12 years.

17.	The escalating gradation of the maximum penalties from 25 years to life imprisonment reflects Parliament's view that sexual violation of young children less than 12 years fall into the most serious offence amongst other crimes of violence. Parliament had intentionally redefined and increased in the 2002 amendment to the Criminal Code, the seriousness of offences and crimes against children in response to the escalating sexual abuse and violation against children, sometimes in revolting circumstances.

18.	So, the clear message is that the offence must be visited with substantial term of imprisonment to reflect the seriousness of the offence. There is also a clear implication that the deterrence, both general and personal, aspect of the sentencing policy must feature heavily in dealing with child-sex offenders. It is hope, with such stern measure; the offender will no longer be a threat to young children and a menace to society. The other significant outcome of such sentencing policy is that the offender will have learned and others warned of the serious consequences of sexually violating the rights and freedom of young children.

19.	In this case, the victim was said to be 10 years old. For the reasons given and having observed her in court, I have some doubts about that fact. From subsequent evidence, she was over 12 years in 2011. Even if she looked bigger and older for her age at the time of the incident, the prisoner could have defended the charge on that issue but he chose not to. It is in his favour that he chose to plead guilty. In taking that course he had saved the girl repeated trauma of having to give evidence. The Court and the State are also saved the time and expenses to prosecute his case. These are relevant considerations on sentence. 

20.	The prisoner was aged 17 years in 2011. He was a juvenile. It is proper therefore to treat him and sentence him under the Juvenile Courts Act, 1991 pursuant to the powers of the National Court under s.18 of the Act. The provisions, peculiar to dealing with juveniles are set out under Part VII. Section 29 makes it mandatory for the court to order presentence reports before imposing a sentence. The law requires the court to investigate all possible alternatives and to treat imprisonment as a last resort. This comes with the paramount duty to be constructive and not destructive in dealing with young offenders. The sentencer must act with care and restraint to subject a young offender to a sentence that is not only corrective, but also protective and useful to the offender and the community. 

21.	In the Supreme Court case of Kuri Willie v. The State [1987] PNGLR 298 Hinchliffe, J echoed the rationale for these sentiments in this way at p 299: 

"A judge or a Magistrate who sends a young man to prison for the first time takes on a grave responsibility. It is not practical or desirable to lay down a general rule but in many cases it is desirable to take a risk to save a young man or woman from the consequences of prison."

22.	I adopt this and the approach taken by Gavara-Nanu J in sentencing a youthful offender in the case of The State v August David (2008) N3612 that:

"Sentencing a youthful offender to prison is always a difficult task for the Court to determine because the principal purpose of sending an offender to gaol is to reform him. But when deciding to send an offender to jail, it is always accompanied by the irony that there is a risk that the offender could be exposed to bad influences by other prisoners which may result in the offender becoming worse off than when he went to goal. Another risk is the offender may be abused by adult prisoners. This has happened to young male offenders."

23.	See also, The State -v- Morobet Awui Komia and Petro Kevein [1987] PNGLR 262 at p. 266; The State v Stanley Marai Uriye o (2003) N2386.

24.	And in State v Frank Kagai [1987] PNGLR 320 Hinchliffe, J adopted the principle in William Davey (1980) 2 A. Crim R 254 that:

"1.	A sentencing judge should consider first and foremost the protection of the Community but judicial assessment of the prisoner, the prisoners family, his opportunities, demeanor and remorse and the precipitating factors causing the offence are also relevant. 

2.	The suspension of a sentence of imprisonment is not an exercise in leniency but an order made in the community interest designed to prevent re-offending which a prison sentence standing alone seldom does. 

3.	Persons charged with most serious offences may be dealt with by way of suspended sentence by reason of good character, the Court's view that there will be no re-offending …… at times by reason of the fact that the Court believes that the particular individual will be positively damaged by immediate incarceration."

25.	On the foregoing, there is compelling reason to consider alternative imprisonment or alternative measures to avoid incarceration particularly for young first offenders. 

26.	The presentence reports show, that the prisoner comes from a very stable, loving and strict Christian home. Although he was irregular and uncommitted in attending church service and related activities, he was spoken highly of by Village Court Magistrate Abraham Taiaba as a quite, shy and trouble free young man. His family, his fellow villagers from Ewasse and surrounding villages were surprised when they heard of his trouble. I am satisfied that the prisoner's anti-social behaviour in sexually violating an underage girl was out of character and one that caught many of his fellow-villagers by surprise. 

27.	I will sentence you on the basis that the girl was 14 years old at the time of the incident. The fact of age difference is in your favour. You were 17 years and old. With your small physical stature, you may not have looked much different to the victim then. The act arose out of a consensual relationship. It will be a travesty of justice to hold you entirely responsible when the permissive conduct of the 14 year victim had also encouraged the offence. Had you been a year or two younger, you would have been excused under s.229F (b) of the Criminal Code. 

28.	I am satisfied that there is good reason for you to avoid immediate incarceration. There is a good chance from all that is said about you in the PSR you will not re-offend. And there is compelling view that the majority of young first offenders who are given alternative sentencing to imprisonment never re-offend. Hence, I am prepared to take the risk to avoid imprisonment for you. I will nevertheless impose a term of years that will be deferred to allow you to serve your sentence on probation.

29.	Wesley Penias, you are sentenced to 4 years ILH. The sentence is suspended for you to be on Probation on the usual terms and in addition, the following shall apply:

1.	The conditions of suspended sentence are that you:

(a)	Shall within 48 hours, report to the Probation Officer after release from custody;
(b)	Shall reside at a place approved by the National Court;
(c)	Shall not leave Bialla or West New Britain Province without written approval of the National Court;
(d)	Shall perform 200 hours of unpaid community work at a worksite approved by the National Court;
(e)	Shall attend church every weekend for service and worship and submit to counselling;
(f)	Shall join a Church Youth Fellow group and take active part in all it's activities; 
(g)	Shall not consume any form of liquor, alcohol or drug;
(h)	Shall keep the peace and be of good behaviour;
(i)	Shall have a satisfactory probation report submitted to the National Court Registry as required;
(j)	Shall appear before the National Court as and when required for assessment of your progress on probation.

2.	The Probation Office shall file six-monthly reports with the first of such report due by 13 September 2014 and whenever required by the National Court on your progress on probation until discharged.

3.	In the event of a breach of any of these conditions, you shall be brought before the National Court to show cause why you should not be incarcerated to serve the whole term of imprisonment.
 
____________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused