N5623

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 565 OF 2012

THE STATE

V

JOSEPH PASTIN

Alotau: Toliken, AJ.
2014: 08th, 23rd May

CRIMINAL LAW – Sentence – Sexual penetration of girl under 16 years – Guilty plea – Consensual intercourse resulting in pregnancy – Complainant a primary school student – Early termination of school – Complainant 2 months shy of age of consent - Remorse shown – Offer for reconciliation, compensation and to marry complainant rejected – Prevalent offence – Appropriate sentence - 4 years less time in custody – Criminal Code Act Ch. 262, s 229A.

Cases Cited

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
The State v Daniel Javuso; Cr 1059 of 2013 (unnumbered and unreported judgment dated 23rd November 2013)

Counsel

L. Luman & B. Gore, for the State
P. Palek, for the Prisoner

JUDGEMENT ON SENTENCE

23th May, 2014

1.	TOLIKEN, AJ: The prisoner was indicted with one count of sexual penetration of a girl under the age of 16 years contrary to Section 229A (1) of the Criminal Code Act Chapter 262 (as amended to date). The indictment read –

JOSEPH PASTIN of BOILAVE VILLAGE, SUAU, MILNE BAY PROVINCE, stands charged that he on the 25th day of August 2011 at BOILAVE, SUAU in Papua New Guinea, engaged in an act of sexual penetration with a child under the age of 16 years namely Texanna Doriri, then aged 15 years old, by inserting his penis into her vagina.

2. 	Section 229A (1) of the Code provides for the offence as follows:
 
"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 subsection (2) and (3), imprisonment for a term not exceeding 25 years.
(2)	...
(3)	...

2.	The brief facts put to the prisoner for the purpose of arraignment we that of the prisoner had befriended the complainant prior to the incident. On 25th August 2011 the prisoner and the complainant met near the complainant's parents' house at about 5.00p.m. and then moved into the nearby bushes where they could hide and chat without anybody seeing them. While they were chatting the prisoner insisted on having sexual intercourse with the complainant. It was getting dark and the complainant wanted to leave before her parents started looking for her and so she allowed the prisoner to sexually penetrate her vagina using his penis. She then left and went home. The complainant was 15 years at the time of the offence.

7.	I entered a provisional plea of guilty which I confirmed after I had satisfied myself from the District Court's Depositions that the evidence supported both the plea and the charge. My perusal of the committal deposition reveals, however, that she was just a little over 2 months shy of the age of consent having been born on 14th October 1996. This brief liaison also resulted in the complainant getting pregnant and her 	withdrawal from Boilave Primary School where she was doing 7th Grade. I then convicted the prisoner.

8.	The State alleged no priors against the prisoner. He is from Boilave Village, Suau, Alotau District, Milne Bay Province. He was 18 years old at the time of the offence and hence is would be over 20 years old now. He is single and at the time of his arrest was employed as crew to a Public Motor Vehicle. He is an Anglican and has an 8th Grade education only and is a simple villager. He had been in pre-sentence custody for 2 years 2 months and 3 weeks.

9.	The issue for my determination is whether this case is the worst instance of sexual penetration therefore warranting the imposition of the maximum penalty. If not then what would be an appropriate sentence?

10.	The prisoner addressed the court saying:

Sorry your Honour. I would like to apologise for breaking the law of Papua New Guinea. I would like also to apologize to the victim and to her parents for what I have done. I would like the Court to have mercy on me and give me good behaviour bond.

11.	I have considered the submissions by Mr. Palek in behalf of the prisoner and Mr. Luman for the State and in particular what they said about the mitigating and aggravating factors in the case and relevant cases which they say ought to assist me in arriving at an appropriate sentence. 

12.	The offence of sexual penetration of a child under the age of 16 years is serious violation of the child's body and privacy hence it is met with appropriately stiff penalties. Offenders are liable to 25 years imprisonment. However, if the child is under 12 years or there is in existence a relationship of trust, authority and dependency an offender is liable to imprisoned for life. (Section 229A (2) (3)) So what sort of sentences have this Court imposed imposeb? Let me consider a few cases.

13.	The State v Chandrol (2011) N4648 ( 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.

14.	The State v Daniel (2008) N3612 (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. 

15.	The State v Pennias Mokei (No.2) (2004) N2635 (Canning J.). 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 laid down some relevant factors which the court may take into account when sentencing offenders for crimes against children. His Honour subsequently expanded these in The State v Biason Benson Samson ((2005) N2799). 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. 

16.	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. 

17.	The State v Eddie Trosty (2004) N 2681: This case involved consensual intercourse between the 21 year old offender with his 15 year old girl friend. The offender was sentenced to 5 years.

18.	The State v Daniel Javuso; Cr 1059 of 2013 (unnumbered and unreported judgment dated 23rd November 2013): There the prisoner (17 at time sentence) pleaded guilty to sexually penetrating his 14 year old girl friend when he was 16 years old. I surmised that sexual intercourse was consensual but it resulted in pregnancy. The complainant also had to withdraw from school. The prisoner was a juvenile at the time he committed the offence and at the time of sentence was in the 9th Grade at Popondetta Secondary School. Given the circumstances I imposed a 5 year sentence which I then fully suspended and placed him on 3 years probation.

19.	I take the following mitigating factors in the prisoner's favour. He pleaded guilty early to the charge saving time and money for the state and further saving the complainant embarrassment of having to testify in open court. He is a first time offender, a simple inadequately educated villager, of previous good character, a youthful offender, co-operated with the police and was remorseful. He was verbally abused and physically assaulted by the complainant's parents. He attempted reconciliation with the complainant's line and even offered to marry the complainant to look after her and the child but this was rejected. The act was consensual and the complainant was but 2 months shy of the age of consent. Lastly age difference between him and the complainant was only 3 years.

20.	There are, however, a few aggravating factors against him. The complainant got pregnant and as a result was forced out of school thus jeopardizing her chances of a good education for a better future for herself and of course the innocent child she bore. The offence is also becoming very prevalent in MBP and elsewhere in the country. Of the 160 cases on the Alotau Crimes List 50 are sexual in nature and that represents 31.25% of all the cases. What should then be an appropriate sentence? Is it serious enough to attract the maximum penalty of 25 years?

21.	I agree that this is not a worst instance of the offence under consideration. Hence it should not attract the maximum, which, as is trite, is reserved for the worst of cases.

22.	If anything the circumstances are similar to the circumstances in Javusa (supra) in that in both instances sexual intercourse was consensual. Both complainants were students in Primary school and both got pregnant which resulted in early termination from school. The prisoner's sentence ought therefore to be in the similar range as Javuso taking into account the above and fact that in this case the complainant was only 2 months shy of age of consent – 16 years.

23.	This was a stupid act on the part of both prisoner and complainant and is reminiscence of the general attitude toward extra-marital sex by a great majority of people in our society and more so our youths. Teen pregnancy is a global epidemic and is the direct result of irresponsible sexual activity among teenagers.

24.	In Javuso I said and I quote:

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.

25.	So in the circumstances I fix a starting point of 5 years. Taking into account all the mitigating factors and the few aggravating factors present in this case I think the appropriate sentence should be 4 years imprisonment – a year below Javuso's sentence because the complainant here (not a victim in any every sense of the word) not only consented but also was a mere 2 months below age of 16 years, the legal age of consent.

26.	I therefore sentence the prisoner to 4 years imprisonment. I deduct 2 years, 2 months and 3 weeks for pre-sentence custody period. That leaves a resultant sentence of 1 year 11 months and 9 days. 

Ordered accordingly.

_________________________________________________

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