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State v Juvenile J.P [2016] PGNC 328; N6545 (26 July 2016)

N6545

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.592 OF 2016

THE STATE

V

JUVENILE J.P

Kokopo: Lenalia, J.

2016: 4^th& 26^thJuly

CRIMINAL LAW – Sexual penetration – Accused age 15 – Criminal Code
(Sexual Offences and Crimes Against Children) Act 2002, s.229A (1).

CRIMINAL LAW PRACTICE & PROCEDURE – Accused under age – Juvenile at age 15 years at time and date (15.12.2015) of commission of crime of sexual penetration.

CRIMINAL LAW – Matter for Juvenile Court erroneously considered to be committed to the National Court – Matter remitted to Juvenile Court.

Cases cited:

Counsel:
Mr. L. Rangan, for the State
J. M. Aimee, for the Accused

26^th July, 2016

1. LENALIA J: The offender on this case had been remanded for some time awaiting trial of the charge of sexual penetration against s.229A (1) of the Criminal Code. When the court visited the Keravat Correctional Services early in June this year, the Court noted that, this offender from his appearance appeared to in his early teens. He in fact is a youth and pursuant to the Juvenile Justice Act No.11 of 2014, his case can be dealt with by the Juvenile Court.
   
2. The Juvenile Court Information Sheet dated 15^th January 2016 says that at the time of the crime (15.12.2015), the accused was age 15 years. The court directed that, this juvenile be brought to the court immediately for the court find out more information about his age. On 4^th this month, this offender was brought to court and the court inquired with him as to how old would he be, he confirmed he is 15 years old.
   

3. Under the interpretation section in the Juvenile Justice Act, 2014 which was certified on 30^th May 2014, the term “juvenile” means “means a person who is, or in the absence of evidence to the contrary appears to be, ten years old or older, but less than 18 years old”.

3. The court noted that this young man is a juvenile at all material times as his appearance in court, appeared to be very young within the meaning of the Juvenile Justice Act 2014. According to the Information Sheet filed in the Juvenile Court file, his age recorded there is he is 15 years old. The date the Information was laid is 15^th December 2015 pursuant to 229A (1) of the Criminal Code. He was committed to stand trial in the National Court on by the Juvenile Court on 11^th April 2016.

4. Criminal jurisdictions of a Juvenile Court are set out in s.17 of the Juvenile Justice Act in the following terms:

“(1)A Juvenile Court has exclusive jurisdiction in the area for which it is established in respect of a juvenile –

(a) To hear and determine summarily an offence punishable on summary conviction and otherwise triable in the District Court; and
(b) Subject to Subsection (2) and (3), if the juvenile is charged with an indictable offence, to hear and determine the charge summarily in accordance with the provisions of this Act.

(2) Subsection (1) (b) does not apply to homicide, rape or any other offence punishable by death or imprisonment for life.

(3) Proceedings for an offence under Section (1) (b) must be heard and determined by a Juvenile Court constituted by a Juvenile Court Magistrate.

(4)To avoid any doubt, and despite any Act or law, a Juvenile Court has exclusive jurisdiction to hear summarily, proceedings for an offence under Section (1) (b) by way of information, without the need for election by the prosecuting authority.”

(Emphasis added).

5. According to s.18 of the Juvenile Justice Act 2014, the National Court has jurisdiction to hear those cases referred to in s.17 (2) of the Act. Offences referred to there include homicide, rape or any crimes punishable by death or life imprisonment.

6. Going through the Juvenile Justice Act of 2014, does not provide for a Court with special jurisdiction to deal with juvenile cases. On the instant case, the juvenile is charged with sexual penetration with a girl under the age of 16 years an offence under s.229A (1) of the Criminal Code. On the date (15.12.2015) the offence was committed, the victim was 13 years old. The maximum penalty under that provision is 25 years. I am of the view that, this matter is outside the terms of s.17 (2) of Juvenile Justice Act.

7. That is to say, the case with which Juvenile J.P is charged with is not homicide, rape or offence punishable by death or life imprisonment. The Court has gone through the record of interview and the statements of the victim and her mother to find out if the offender could be caught by Subsections (2) and (3) of the section charge which both provide for life imprisonment. The victim was age 13 above 12 years at on the date the offence was committed. There is no relationship of trust authority or dependency between the victim and JK.

8. I have read a number of judgments on the issue of jurisdiction of Juvenile Courts and whether this Court can remit the current matter to the Juvenile Court. This case is similar to the case of The State v Juvenile H (2014) Cr.No.187 of 2013 before Kassman J where a juvenile was charged with an offence of sexual penetration under s.229A (1) of the Code. The accused in that case was charged as an adult with sexual penetration of a girl under the age of 12 years. The Court there found that, the case was out of the definition in s.17 (2) of the Juvenile Justice Act. Due to the fact that, no Juvenile Court had been established in Tari, Hela Province, the National Court dealt with that case.

9. In this Province, in The State v Juvenile TR (23.6.2015) Cr.No.1061 of 2014, the offender was involved in a charge of assault after pursuing the victim, he and others assaulted the victim. He was charged for unlawful wounding pursuant to s.319 of the Criminal Code but due to plea bargaining, counsel informed the court that, he was to plea guilty to a lesser charge under s.322(1)(a) of the Code. The presiding Judge, Justice Higgins, after discussing the law on juvenile, he remitted the matter to the Juvenile Court here in Kokopo.

10. In the case of The State v Juvenile JK the offender was charged with an indictable offence under s.229A (1) of the Code. The juvenile was at the age of 12 years on the date the offence was committed. The victim was at the age of 3 years. The offender introduced his penis into the victim’s mouth. No violence was used and it was an isolated incident. He was sentenced to 10 years less time spent in custody to be served at Erap Boys Town, Wewak. The balance was fully suspended.

11. On the instant case, Juvenile J.P has been committed to stand trial in the National Court. I agree with the discussion on law on juvenile cases in the case of The State v Juvenile TR where the Court said that where a Juvenile Court had been established in an a particular area, the jurisdiction of the Juvenile Court is to be “exclusive” of the jurisdiction of any District Court to the extent that, it is consistent with the Constitution.

12. The Juvenile Justice Act sets out the criminal responsibility of juveniles in s.2 and s.18 of the Act. The Act itself in s.18 states that, the Juvenile Court has no jurisdiction on criminal cases of an offender who is 18 years or older. I am of the opinion that because at the time the offence was committed, the offender was a juvenile and even when he appeared in Court. My observation on this young man is he is young and the Juvenile Court is designated to hear most charges of indictable offences except for those crimes specifically referred to in s.17 (2) of the Act. It is my view that, because the Juvenile Court has been established in Kokopo, the offender can be prosecuted in that Court.

13. As earlier stated, the juvenile J.P is at all relevant times a juvenile and even today, he is still a juvenile. My reading of s.17 (1) (b) of the Juvenile Justice Act is unlike in the District Court where its jurisdiction is limited to hearing of indictable offences under Schedule 2 of Criminal Code which provides jurisdiction to Magistrate Grade 5 to deal with indictable offences that may be dealt with summarily, the Juvenile Court is empowered under s.17 (1) (b)to deal with indictable offences except for those referred to in Subsection (2) of that section.

14. It does not specifically state which indictable offence or offences which are triable summarily in the Juvenile Court. I also note the language in s.17 (1) (b) of the Act which says that: “Subject to Subsection (2) and (3), if the juvenile is charged with an indictable offence, to hear and determine the charge summarily in accordance with the provisions of this Act.”

15. Further, Subsection (4) of the above provision states that the Juvenile Court is given exclusive jurisdiction to summarily determine offences under Subsection (1) (b) by laying of information without the need for “election”. The phrase election in my view is a reference to a prosecuting authority like in Schedule 2of the Criminal Code on indictable offences triable summarily where the Public Prosecutor files an election to either proceed summarily or otherwise. (See ss.420&421 of the Code).

16. On its face value, the Information Sheet on the Court file simply cites s.229A (1) of the Criminal Code as an offence committed by J.P. On the current case, the offender J.P is a juvenile. This Province is fortunate to have a Juvenile Court. On the basis of the foregoing short discussion, this Court directs that the matter be remitted to the Juvenile Court to be dealt with summarily.
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The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused.