N6419
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1345 OF 2015

   THE STATE	

V

LP (A Juvenile)

Misima: Toliken, J.
2016:  07th, 14th April

CRIMINAL LAW – Sentence – Sexual penetration of a child under 16 years of age – Digital penetration – Plea –  Juvenile offender – Victim  9 years old – Step-sister of offender – Position of trust and dependency – Mitigating and aggravating factors considered – Sentencing of juveniles – Welfare and  interest of Juvenile of paramount consideration – Sentencing options under Juvenile Courts Act 1991 inappropriate – Custodial sentence – Need for deterrence – Head sentence of 5 years – Need for rehabilitation and correction considered – Suspension appropriate – Whole suspension with conditions – Criminal Code Ch. 262, s 229A(1)(2)(3); Juvenile Courts Act 1991, ss 18, 23, 30, 31; Juvenile Justice Act 2014, s 20(3).

Cases Cited:
Avia Aihi v The State (No. 3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v Don Hale (1998) SC 564
Stanley Sabiu v The State (2007) SC 866
The State v Iran Gaira (2015) N5965
The State v Sigege (2014) N5521
The State v Stanley Konda (2014) N5780

Counsel:
H Roalakona, for the State
C Kambua, for the accused

JUDGMENT ON SENTENCE

14th April, 2016

1.	TOLIKEN J:	LP,  on 07th April 2016 you were charged with one count of sexual penetration of a child under the age of 12 years with circumstances of aggravation, contrary to Section 229A (1) (2) (3) of the Criminal Code Ch. 262 (the Code). Your charge was that on the 23rd of December 2013, here at Bwagaoia Station, Misima, Milne Bay Province, you engaged in an act of sexual penetration with CP, a child under the age of 12 years, being 9 years old and at that time there was an existing relationship of trust, dependency and authority in that you were the step-brother of CP.
 
BRIEF FACTS

2.	The brief facts of your case are that on 23rd December 2013, between 7.00 - 8.00a.m. you arrived at complainant's house. You were drunk and talkative and were expressing your grievances against the child's mother, who is your step-mother. That time the complainant was sitting on the steps leading up to the veranda of the house. You grabbed complainant's vagina and you forcefully pushed one of your fingers into her vagina and squeezed it with you other fingers. The complainant felt pain, but did not tell anyone until her mother noticed the way she was walking she was taken to the Misima Hospital sometime later and was treated for her injuries. When you inserted your finger into the complainant's vagina you sexually penetrated her. The complainant was at the material time under 12 years old. She was 9 years old. She is also your step-sister in that your father is married to her mother and therefore you were in a position trust, dependency and dependency.

PLEA
 
3.	You pleaded guilty to the charge. I confirmed your plea after perusing the committal court depositions and according convicted you. Because you are a juvenile I requested for a Pre-sentence Report which has been duly filed. 

ANTECEDENTS 

4.	You are now 19 years old. You were 17 years old at the time of the offence. You are from Siagara village, Misima. Your highest level of education is Grade 9 which you did no complete in 2009 because of school problems. You say you are one of Jehovah's Witnesses but I doubt that you are because unless you have dedicated yourself to God and have been baptized you cannot qualify to be one. You may, however, be associated to the Witnesses through your parents but you are definitely not one of them. Your parents are both alive but have separated. You have three other siblings and you are the second born. You are a first time offender, and you have been in pre-sentence custody for 1 year and six months.  

ALLOCUTUS

5.	In your address to the Court you apologized to God, to the Court to the victim and her family and your own family for what you have done. You offered an explanation for your action saying that you were brought up by your uncle because your parents had broken up. You said that when your father married the victim's mother he abandoned his responsibility to ensure that you got a good education. He cared more about the victim than he did for you. You said you approached your father and step-mother a lot of times to sort out your concerns but they never had time for you. You were frustrated and angry because of that and that led you to commit this offence. You pleaded for mercy and asked if you could pay compensation.

PRE-SENTENCE REPORT

6.	I ordered a Pre-Sentence Report (PSR) for you which is compulsory because you were a juvenile when you committed this offence. The PSR is favourable to you. It assesses you as a suitable candidate for probation supervision for which there is community. Your mother and step-father have also agreed to pay the K2000 compensation demanded by the victim's mother.
 
SUBMISSIONS

7.	Your lawyer Ms. Kambua submitted that because you were a juvenile when you committed the offence you should be sentenced according to the provisions of the Juvenile Courts Act 1991. She said a starting point for you should 10 years while your head sentence should be 4 - 8 years less the time you have spent in custody. The resultant sentence can then be either wholly or partially suspended.

8.	Ms. Roalakona for the State on the other hand submitted that a strong personal and general deterrent sentence is needed in your case because of the prevalence of the offence in the province coupled with the fact that the victim was your step-sister with whom you stood in a position of trust and dependency. Furthermore she was totally innocent of your grievances against your father and step-mother. 

9.	Ms. Roalkona said that no amount of compensation can restore you and the victim to the position that you previously enjoyed. And in particular the victim through her Victim Impact Statement has been traumatized by this incident. She is now afraid of you and does not feel safe when alone in the house anymore. Her mother also relates the problems that her daughter encountered as a consequence of your actions, such bouts of forgetfulness, lack of concentration in school and under-performance leading to poor grades. She confirms her daughter's fear of you and also fears for her daughter's safety if you are released.

10.	Because of these reasons Ms. Roalakona said that an appropriate head sentence for you should be 15 years. 
   
THE OFFENCE

11.	LP you have committed a very serious offence which attracts a maximum penalty of life imprisonment. Section 229A which creates this offence provides:
 
	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.

12.	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 to impose a lesser sentence.

13.	These penalties are a reflection of the gravity of this offence and are recognition of the need to protect our children - girls and boys alike - from all forms of sexual abuse and exploitation by others including juveniles or youthful offenders like you.

14.	It must be stated, however, that the penalty stated above is the maximum sentence the Court can impose. It is, however, well established that maximum penalty is only imposed on the worst instances of any particular offence. Hence, every case must be treated on its peculiar set of facts and circumstances so that the sentence in a case will fit the crime, as they say.  (Goli Golu v The State [1979] PNGLR 653;  Avia Aihi v The State (No. 3) [1982] PNGLR 92)

PRINCIPLES IN SENTENCING JUVENILES

15.	You were a juvenile when you committed this offence, hence, you will be treated quite differently from adult offenders. Section 4 of the Juvenile Courts Act 1991 provides that when dealing with juveniles the interest of the juvenile shall be the paramount consideration. Section 18 of the Juvenile Courts Act provided  that where a juvenile is charged with homicide, rape or other offence punishable by death or imprisonment for life the National Court shall apply the procedures under that Act in the trial of a juvenile, and may exercise the sentencing powers conferred by the Act on a Juvenile Court. The procedures of the Juvenile Court were provided by PART VI.—PRACTICE AND PROCEDURE of the Act. It provided, among other things the requirement for trials to be heard in camera, (Section 23) and the procedure in taking pleas (Section 27).

16.	The sentencing powers of the Juvenile Courts were provided by Section 30 of the Juvenile Courts Act 1991, and these include a term of imprisonment to a juvenile Section of Corrective institution not exceeding 18 months. The Juvenile Courts Act 1991 has since been repealed and replaced by the Juvenile Justices Act 2014 which has impacted quite significantly on the powers of the National Court. For instance the Court is now obligated to conduct proceedings against juveniles in accordance with the provisions of that Act. (Section 20 (3)

17.	 Under the Juvenile Courts Act 1991, which was in operation when you committed the offence, the National Court had discretion whether or not to exercise the sentencing powers under that Act.  I therefore have the discretion, guided of course by the direction that your interest is of paramount consideration, to either treat you like every other offender, or accord you the sentencing options under the old Act. 
 
18.	  Because of the seriousness of the offence, the custodial sentencing options provided for under the Section 30 of Juvenile Courts Act 1991 (a maximum of 18 months) are inappropriate. 

19.	However, due considerations will be given to those factors set out in Section 31 such the  seriousness of the offence and the circumstances in which it was committed, your age, maturity, education, health, character and attitude to your offence,  your parental and family background as well as the social and community environment in which he lives and to which he is likely to return, whether you have a previous history of offending and your responses to previous orders in relation to those offences and the type of community services and facilities that are available to assist you and your willingness to use those services or facilities, any proposals that you or your parents may put forward for your future improvement, any views of a Juvenile Court Officer in relation to you, any views of any person who is involved in your education or custody and any other relevant factors.
 
SENTENCING ISSUES

20.	That said, I must now consider an appropriate sentence for you. And to do that I must consider the following issues:

1.	Is this a worst case that must attract the maximum penalty
2.	If not what should be an appropriate sentence given the need for 	the court to consider your best interest?
3.	Should any part of your sentence be suspended?

CULPABILITY AND STARTING POINT

21.	I must at the outset say that yours is not a worst case of sexual penetration. However, it is by no means a trivial one. I assess your culpability to be quite high because of the harm that was actually caused on the victim or which you ought to have reasonably known would result as a consequence of your action. So, I must set a starting point for you. The Supreme Court has set a starting of 15 years for the sexual penetration of a girl under the age of 12 years. (Stanley Sabiu v The State (2007) SC 866). That was a case involving penile penetration. For digital penetration, a starting point of 10 years had been suggested. (see The State v Iran Gaira (2015) N5965; The State v Stanley Konda (2014) N5780; ) For your case I set a starting point of 10 years following The State v Iran Gaira (supra) and The State v Stanley Konda (supra). 

SENTENCING TREND

22.	What has been the sentencing trend for this type of offence - digital penetration? Let me just survey two cases of mine involving digital penetration, two of which involved juveniles like you.

23.	The State v Iran Gaira (supra): There the 22 year old offender lured his 4 year old niece to the back of their house when she was alone, and sexually penetrated her with his fingers. I set the starting point at 10 years and despite some strong mitigating factors such as early plea, nil priors, expression of remorse among others, I felt that his aggravating factors including the very young age of the child, the injuries suffered, age difference of 18 years and breach of trust, I sentenced the prisoner to 11 years imprisonment of from which 5 years were suspended on condition.
  
24.	The State v Sigege (2014) N5521: There, the offender aged 16 years, pleaded guilty to one count of sexually penetrating his 3 years and 11 month old niece with his fingers. He lured the child to a trade store on the pretext of buying her biscuits, but instead took her to the nearby bushes and digitally penetrated her. The child suffered serious injuries including a ruptured hymen. I sentenced the offender to 11 years imprisonment less time spent in pre-sentence custody. I ordered that he offender serve 4 years of his resultant sentence and suspended the balance on condition. So what then should be an appropriate sentence for you?

THE CURRENT CASE

Mitigating/Extenuating and Aggravating Factors

25.	Let me start by considering your mitigating, extenuating (if any) and aggravating factors. First your mitigating factors:
	1.	You pleaded guilty early to your charge;
	2.	You are a first time offender;
	3.	You were a juvenile;
	4.	You co-operated with the police;
	5.	You have expressed genuine remorse and have offered to pay 			compensation;
	6.	This was an isolated event and you acted alone;
7.	There was no pre-planning;
8.	The victim did not contract any Sexually Transmitted Infection;
9. 	You come from a broken home where your parents had separated and you were raised by your uncle. Your father neglected you and did not ensure that you get a good education let alone complete High School. You were frustrated and misguided and this affected your mental, physical and emotional development. Lack of parental support, particularly from your father, frustrated you and these frustrations built up resulting in obvious delinquency which culminated in your committing this offence, these I find are extenuating factors because they affected your mental and emotional state at the time you committed this offence.

26.	Now to your aggravating factors:

1.	The offence is a prevalent offence here in the Milne Bay Province and around the country;
	2.	The victim suffered some minor physical injuries - examination of 		her external genitalia revealed abrasions on the outer lips of the 			vagina (labia majora);
	3.	The victim has and is still suffering emotionally and 				psychologically;
	4.	You stood in a very close relationship trust and dependency with 		your victim who was your step-sister who you ought to have 			cared for and protected;
	5.	There was an age difference of 8 years between the two of you.
	6.	The victim was innocent of your frustrations and issues with your 		father and step mother;
	7.	 You were under the influence of intoxicating liquor.

Considerations on an Appropriate Sentence

27.	Sentencing juvenile offenders like you is not an easy task. This is because the sentencing court must balance your interest - which as we have seen must remain paramount -   with the view of correcting you and to discouraging you from sinking further into delinquency, against the interests the State and the victim.  The task is made more difficult in sexual offences where the victim is also a child who also needs to be protected. This is exactly the situation we are faced with here. The victim is your step-sister and you have a certain degree of trust reposed in you in respect of the child.

28.	I have considered the difficulties you went through when your parents separated. That you had to go into the foster care of your uncle, that you felt some kind of injustice when your father showered his attention on his step-daughter (the victim) and in the process neglected you, finally culminating in your leaving school because he failed to pay for your school fees. I can imagine that you saw the end of any future prospects for yourself slip away when that happened. And as a result you slip into a state despondency which was not assisted by your father's lack of interest to hear you out and address your concerns. But, it appears that you also started to abuse alcohol and that only made things worse for you. You ended up taking your frustrations out on your step-sister who was totally innocent. 

29.	So, while your situation can be appreciated, the rights of your step-sister - a mere child - have also to be protected.   She too does not deserve to be abused in any form or manner, least of all from someone like you, who stood in a position of trust, and on whom she would have looked up for protection. I know this would have been a hard thing to ask of you because, as always is the case in this kind of situation, you would have harboured a certain degree of resentment against her and her mother.  As it turned out, you committed a grave offence against her. You invaded her privacy and degraded her dignity as a human being. She did not expect that someone close to her could subject her to such disrespect and violation. Your sexual violation of your step-sister cannot be tolerated. So you must face the consequences that must righty flow to you because of that. 

30.	I must, however, mention something that bothers me a fair bit. And that is the deafening silence and absence of your father, and his lack of attention to your flight, which as we have seen, he has contributed significantly to. The pre-sentence report makes no mention at all of him getting involved in your welfare. In the old days under the now repealed Child Welfare Act he would have been a good candidate for punishment for allowing you to become incorrigible and uncontrollable. Parents should take responsibility for their children in order to prevent them from slipping into delinquency, which can be very hard to get out of once you are in there.

31.	But going back to your case, I would like to think that given your situation, a significant discount from the starting point of 10 years would be appropriate for you. This is because a longer sentence for a neglected young man like you will only send you deeper down into the road to criminality. The Court has an obligation to see that you are corrected and reformed. But, at the same time you must acknowledge your wrongdoing, and that you have hurt not only your step-sister and her mother, but also your mother and other family members. You must therefore take responsibility for what you did, and if you must reconcile with your victims then you must do so. 

HEAD SENTENCE

32.	In the circumstances, I feel therefore that an appropriate head sentence for you should be 5 years imprisonment. This sentence will primarily serve to deter you and others as well. I therefore sentence you to 5 years imprisonment less the period that you spend in custody prior to your sentence.

SUSPENSION

33.	Now, should any part of your resultant sentence be suspended? Your Pre-sentence Report is favourable. There is community support for your supervision and correction. There is an agreement between your family and the victim's for payment of compensation which will not restore the trust that the victim and her mother had for you, but which will go along way into encouraging reconciliation between everyone involved. (Public Prosecutor v Don Hale (1998) SC 564) I feel that a full suspension is in order here, so I order that the resultant sentence be wholly suspended.

34.	This, however, comes with some strict conditions. You are to be on probation for a period of four years under the supervision of the Alotau Provincial Probation Officer and the Ward Councillor of Gaibobo Ward, Mr. Ephraim Sikat, who shall be appointed VPO (or whoever succeeds him in that position) with the following additional conditions:

	1.	You are not to engage in any direct physical contact or 				communicate with the victim in any manner whatsoever;
	2. 	You are to reside with your biological mother Mary Newton and 		your step-father Newton Daniel while on probation;
	3. 	You are not to consume any form of intoxication liquor or smoke 		marijuana;
	4.	You are not to associate with or hang around with village youths 		who are known to abuse alcohol or smoke marijuana;
5.	You are to pay K2000 compensation to the victim and her family within 6 months from today under the supervision of the Probation Service. The Senior Community Based Correction Officer shall furnish a report to the National Court, 	the State Prosecutor and the Public Solicitor in Alotau attesting to payment of compensation.
	 
35.	Orders accordingly.

________________________________________________________________
Public Prosecutor:	Lawyer for the State
Public Solicitor   : Lawyer for the Prisoner