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State v Pingina [2016] PGNC 70; N6252 (25 April 2016)

N6252
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 6 OF 2014

BETWEEN:

THE STATE

AND:
LEO JIMMY PINGINA
Prisoner

Popondetta: Davani J
2016: 08^th April & 25^th April

Counsel:
Mr D. Kuvi, for the State
Mr E.Yavisa, for the Prisoner

SENTENCE

25^th April, 2016

1. DAVANI J: On 8^th April, 2016, the State presented an Indictment alleging that LEO JIMMY PINGINA (the “Offender”), had sexually penetrated VB (“Victim”) on 24^th August, 2013, a female child , who was aged 15 years at the date of the offence, in breach of s.229A(1) of the Criminal Code.

2. The Offender pleaded guilty to this offence.

S.229 A (1) reads;

229 (A) 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”

Facts

3. The facts which the Offender pleaded guilty to are that, on the date of the offence, the Offender and the Victim were in a relationship, that is, the Victim was the Offender’s girlfriend, and vice versa. On 24^th August, 2013, the Offender sent the Victim a text message asking that they meet somewhere, which the Victim agreed to do. Thereafter, the Offender and the Victim, met at the Victim’s parent’s house in Popondetta town, and had consensual sex.
   

4. The Offender acknowledged that when the act of sexual penetration occurred, that the Victim was aged 15, below the age of 16 years. This fact is not disputed.

5. Aggravating features i.e. the use of weapons, are not alleged by the State (against the Offender) in this case.

Aggravating features

6. The only aggravating aspect of this case is the fact that the Victim was aged below 16 years.

7. There may have been other instances where the Offender could have exercised some force upon the Victim, however, this court is confined to the facts the Offender pleaded guilty to.

Mitigating features

8. Obviously, the Offender’s guilty plea saved the court a lot in the way of time and money.

9. The Offender was also apologetic and remorseful.

10. This is the Offender’s first offence.

Analysis of submissions and the law

11. Although the Offender claims to be the Victim’s boyfriend and that sex was consensual, the fact that sexual penetration occurred between a 20 year old and a 15 year old, is in itself an offence in Papua New Guinea. The issue of possible consent between a minor and an Offender, in my view, is not a mitigating factor especially where the prescribed offence states in no uncertain terms, that sexual penetration of a child under the age of 16 years is a crime. And the Offender cannot feign ignorance, especially in a situation such as this where the Offender would obviously have known that the Victim was younger than him.

12. The Court papers show that sex may not have been consensual in this case in that the Victim was threatened into having sex. Which is why, for evidence that is untested, a court must not place reliance on it, but can accept, on the face of it, the Offender’s guilty plea. And that in itself, is a mitigating factor.

13. I ordered the production of a Pre-Sentence Report (“PSR”) upon application by Defence Counsel, which was not opposed by counsel for the State. Defence Counsel submitted that the court imposes a suspended sentence and that the Offender be placed on probation. However, Defence Counsel did not make any submissions on the conditions to be imposed, only submitting that the mandatory conditions under s.17 of the Probation Act be imposed without making any submissions on what these conditions were, an undesired situation indeed.
    

14. Counsel for the State submitted that the court exercise its sentencing discretion under s.19 of the Criminal Code and more particularly, to take note of the principles held in Public Prosecutor V Don Hale SC 564..

15. Below are some case authorities I considered, to assist me in the sentencing process.

• State v Eddy Trosty N3165

Offender and the victim were boyfriend and girlfriend. The victim was 15 years old and the prisoner, 21. They both had consensual sex, several times. The offender was sentenced to 6 years on a guilty plea.

• State v Waninara Judas (2007) N3195

In this case, the trial Judge compared sentences for sexual offences, more particularly the offence of sexual penetration under s. 229A(1) or s.229A(2). He noted that some imposed sentences were considerably high. The trial Judge referred to State v Thomas Angup where the offender was charged with several counts of sexual penetration and sexual touching of an under aged girl. The offender was sentenced to 20 years imprisonment. In The State v Kemai Lumou (2004) N2684, the victim was aged 14 years and the offender, 22 years. He was convicted after a trial on a charge under s.229A (1). The victim was a close relative of the offender. The offender threatened the victim with a bush knife and sexually penetrated her. The court sentenced the offender to 17 years. In The State v EsromTiama (2006) N3054, the offender pleaded guilty to 1 count of sexual penetration under s.229A (1) aggravated by an existing relationship of trust, dependency and authority. The victim was only 9 years; the offender was aged approximately 50 years. He was sentenced to 12 years. 2 years were suspended with conditions and to be placed on good behaviour bond after service of the total sentence.

• In The State v Wesley Penias (2014) N5659
  

The offender pleaded guilty to one count of sexual penetration of a girl under the age of 12 years, pursuant to s.229A (2) of the Criminal Code, as amended. The Offender was 17 years old. However, during the hearing, the trial Judge observed that the victim appeared older than the age of 12 years, which would have her about 14, at the date of the offence. After amending the indictment, the trial Judge considered all the facts, including the fact that the act of sexual penetration was consensual in that in this case, the victim agreed to follow the offender where they then had sex, then spent the night together.

16. The trial Judge imposed a sentence of 4 years then suspended the whole term, on stringent conditions including reporting.

17. Of course there is the case of The State v Pennias Mokei (No. 2) (2004) N2635, where the court set out the factors that can be considered when considering a case such as this, involving a minor, and which principles were reconsidered in The State v George Taunde (2005) N2807. This case is not as serious as Pennias Mokei and George Taunde so I will settle only for the relevant factors discussed in Pennias Mokei and changed slightly in George Taunde, which are;
    • There is an age difference of 4 years.
    • The Victim is a year below the prescribed age of 16.
    • There was consent but not real consent so it is not a strong mitigating factor (see The State v George Taunde (supra)).
    • There was only one offender.
    • No physical violence or threatening weapon was used.
    • No physical injury done to the victim.
    • The victim did not get a sexually transmitted disease.
    • According to the court file, it was an isolated incident.
    • The Offender gave himself up after the incident.
    • The Offender cooperated with the police.
    • No compensation or something tangible done to or for the victim to repair the wrong done to her.
    • Offender has not caused further trouble for the victim.
    • Offender pleaded guilty.
    • Offender expressed remorse.
    • Offender’s first offence.
    • Offender is youthful.
      
18. Indeed, a sentence of 4 years is warranted under the circumstances. The factors above are wholly favourable to the Offender, the effect of which is that this court will exercise its discretion under s.19 of the Criminal Code, as amended, to wholly suspend the sentence. The Offender will also be placed on stringent reporting and working conditions.
    
19. The PSR does not address conditions, which I find very inadequate. The Probation officers must bear in mind that when offenders are placed on probation, it is still a form of punishment for them, but rehabilitative and corrective in nature. We may not have the fancy set ups that Western countries have, to service the probationers, so we should make the most of what we have. Which is why I will place the Offender on a cleaning programme of the Popondetta Town area, to be supervised by the Probation Officer and to report to the Court, every month?
    
20. In relation to the mandatory conditions in s.17 of the Probation Act, although Mr Yavisa submitted that I impose these mandatory conditions, Mr Yavisa did not even have a copy of that act in court, let alone ss.17 and 18. It seems Mr Yavisa has this misconceived notion that he need only mention the legislation or any legislation for that matter. Mr Yavisa is expected to make submissions on those conditions, more particularly, those that are relevant to the offender.

21. The PSR is devoid of these important details. E.g the address where the offender will remain after his release. (s.17 (1) (a) of the Probation Act). Or, whether the Offender will compensate the Victim, (s.18 (1) of the Probation Act). I note the PSR states Kakanddetta Village Urban LLG so I will assume, for the purposes of sentencing that this is the address where he will be for the duration of the sentence.
    
22. Because of the lack of informative submissions in relation to, more particularly, ss.17 and 18 of the Probation Act, effectively, it means that this court does not have the necessary and relevant information it needs to place the Offender on conditions. This can result in the court imposing a custodial sentence. I should also mention that the 3 conditions proposed in the PSR are very inadequate and do not serve its purpose, which basically is, what a Prisoner, on a 4 year suspended sentence can do over that period of time, which will be rehabilitative and corrective in nature.

I set out below, ss.17 and 18 of the Probation Act.

“17. Conditions of Probation

(1) A probation order shall-
(a) Specify the address to which the probationer is to go and remain on release until he is contacted by a probation officer; and

(b) require the probationer to report to a probation officer as and when he is required by the probation officer to do so; and

(c) require the probationer to keep the peace and be of good behaviour; and

(d) direct that –

(i) the probationer shall not change his address, other than the address referred to in paragraph (a) unless he has given to a probation officer reasonable notice of his intention to do so and the reasons for the proposed change; and

(ii) where by virtue of the change of address, the probationer has moved to another declared area and he shall, within 48 hours of arrival, report to a probation officer in that area and advise that officer of the nature and place of his employment and of his new address in that area; and

(e) direct that the probationer shall give to a probation officer reasonable notice of his intention to change his employment and advise him of the nature and place of his proposed employment; and

(f) require that the probationer shall, for the purpose of this Act, allow a probation officer to enter his home during reasonable hours. .

(2) In subsection (1) (a) (b) (e) and (f), “probation officer” includes a voluntary probation officer.”

“18. Additional Conditions

(1) In addition to the conditions set out in Section 17 (1), the court may impose all or any of the following conditions;-

(a) that a probationer shall not, except with the permission of a probation officer and in accordance with such directions as the probation officer may give, leave any specified area; and

(b) that a probationer shall pay, within such period and by such instalments as the court determines, damages for injury, or compensation for loss, suffered by any person by virtue of the office for which the probationer is convicted or shall carry out work in restitution for such injury, compensation or loss; and

(c) that a probationer shall travel to and reside in a specific area; and

(d) that a probationer shall perform community work under the provisions of any law; and

(e) that a probationer shall pay, within such period and by such instalments as the Court determines, compensation according to custom to any person or persons.

(2) Subsection (1) does not prevent the court imposing such other conditions as are necessary in the circumstances of the case for ensuring compliance by the probationer with the condition of the order and for his good conduct and welfare.

(3) Where a probationer is performing community work or work by way of restitution, the probationer shall be deemed to be employed by the State for the purposes of the Workers Compensation Act (Chapter 79)

Conclusion and Sentence

23. Not withstanding the lack of submissions and the inadequate PSR, I am cognizant of the fact that the Offender is a youthful offender and that serving a jail time will not assist in his correction to be a good citizen. As this is his first offence and that nobody was hurt in that exercise, I will wholly suspend the sentence on stringent reporting conditions.

24. These are the orders of the court;

1. Leo Pingina is sentenced to 4 years in hard labour, to be served at the Biru CS;
   
2. That the sentence of 4 years will be wholly suspended on the following conditions;
   
   1. Leo Pingina shall reside and remain at Kakandetta Village, Urban LLG, Popondetta, until he is contacted by a Probation Officer.
      
   2. That Leo Pingina shall not change that address or move from that address unless he applies to the court for leave to do so.
      

iii. That Leo Pingina shall report to a Probation Officer at the date and times to be decided by the Probation Officer, which details must be filed in the National Court Registry, Popondetta, before 12 noon on Tuesday 26^th April, 2016.

iv. That Leo Pingina shall keep the peace, be of good behaviour and not consume alcohol, homebrew or any intoxicating drugs or substances, during the period of his suspended sentence.

v. That in the event Leo Pingina obtains formal employment that he must appear before this court and inform it of his change in circumstances.

vi. That Leo Pingina will be engaged in community services such as grass cutting, cleaning the Popondetta town area, amongst others and which engagement or projects must be for the duration of the 4 year suspended sentence and which must be approved by this court.

vii. That the work programme referred to in par.2 (vi) herein, must be submitted and lodged with the National Court Registry, before close of business on Friday, 29^th April, 2016.

3. That both Leo Pingina and the Probation officer, must appear before this court on 4^th may, 2016, at 3 pm, for the court to endorse the work programme and reporting conditions, amongst others, and to also order the duration of, including the commencement of the work programme.

4. That subject to variation or further orders by this court, that Leo Pingina shall report to this Court, on the 4^th May, 2016 at 3 pm; 3^rd June, 2016, at 3 pm and 3^rd July, 2016, at 3 pm, and at other dates and times to be decided by this Court, on 3^rd July,2016.

5. That in the event any of the above conditions are breached, that Leo Pingina will be arrested and will appear before a Judge, for orders to be made in relation to forfeiture of the within conditions and for the offender to serve the balance of 4 year term, in hard labour at the Biru CS.

6. That bail monies of K600.00 paid by Leo Pingina, will be forfeited to the State.

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