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State v Yapmali [2023] PGNC 238; N10384 (23 May 2023)

N10384

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (JJ) NO. 78 OF 2022

THE STATE

V

MALCOLM YAPMALI

Angoram: Thoke, AJ
2023: 14^th, 16^th & 23^rd February

CRIMINAL LAW- Practice and Procedure – Guilty Plea- Section 347 (1) of Criminal Code Act- Rape- Juvenile- the Appropriate Sentence - Guilty Plea-Juvenile Aged Above 14 Committed an Indictable Offence-Pre-Sentence Reports Not Suitable for Probation-Imprisonment Term Imposed.

FACTS:

On the 14^th of May 2021 in Maramba Village, Angoram District of East Sepik Province, at around 6pm and 7pm, Malcolm Yapmali in the company of two others raped one Eli Patrick thereby, contravening Section 347 (1) of the Criminal Code Act.
The Prisoner was 17 years old at the time of the commission of offence, hence a person defined Juvenile under the Juvenile Justice Act.

HELD:

1. As per the Pre-Sentence Report, acts of payback killing and rape is overwhelmingly practiced around the community and area of Juvenile, hence it will be risky for him to be released back into the community, or released on probation.
   
2. The imprisonment for a Juvenile under the Juvenile Justice Act is to rehabilitate and reintegrate the prisoner into the family and community while also acknowledging the wrong done.
   
3. For the best interest of the Juvenile, a custodial sentence is appropriate.
4. Invoking section 81 (2) of the Juvenile Justice Act, the Juvenile is sentenced to 3 years in hard labor, less the number of years served in custody. Balance be served in Boram CIS.
   

Cases Cited:

State v AB (Juvenile) [2016] PGNC 245; N6440

Legislations Cited:

Section 347 (1) of the Criminal Code Act
Section 19 of the Criminal Code Act
Sections 6, 70-80 Juvenile Justice Act

Counsel

Andrew Kaipu, for the State
Dan Siki, for the Prisoner

DECISION ON SENTENCE

23^rd May, 2023

1. THOKE AJ: This matter came for hearing on the 23^rd February 2023 for decision on an appropriate sentence to be imposed on the Juvenile.

2. I quote Section 347 (1) of the Criminal Code Act:

“347. Definition of Rape.

(1) A person who sexually penetrates a person without his or her consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.”

.
INDICTMENT & PLEA

3. The Indictment of the Juvenile was presented on 16^th February 2023 at Angoram National Court on one count of rape, pursuant to section 347(1) of the Criminal Code Act.

4. The indictment reads as follows:

“MALCOLM YAPMALI of MARAMBA VILLAGE, ANGORAM DISTRICT, EAST SEPIK PROVINCE stands charged that he at Maramba village, Angoram District, East Sepik Province in Papua New Guinea on the 14^th day of May 2021 sexually penetrated ELI PATRICK without her consent by inserting his penis into her vagina, in circumstances of aggravation in that he was in the company of other persons who were armed with offensive weapons contrary to s.347 (1) and s.7 (1) (C) of the Criminal Code”

5. Accused Pleaded Guilty.

ANTECEDENTS

6. The Prisoner was 17 years of age at the time of the offence, and the second born into an all-male family of seven children. Both his parents are alive.

7. He is single and has no plan for marriage or family of his own yet.

8. He did grade 2 and left school because the teacher’s reluctance in staying and teaching in the area due to remoteness of the school. He plans to go back to school when he returns.

9. He is unemployed but sustains his livelihood by helping his parents in gardening, planting cocoa, fishing and selling sago.

10. He is a first-time offender, or had no prior conviction as a juvenile.

PRE-SENTENCE REPORT

11. I have thoroughly pursued the Pre-Sentence Report (PSR) presented by the Probation Officer (PSO), Mr. Moses Galus of the Community Based Corrections & Rehabilitation Service and find that the Prisoner is not suitable for probation.

12. No one was present for interview, except the mother of the prisoner.

13. The mother wants the juvenile not to be released into the community, rather desires for him to be sent to boy’s town where he can stay safe and attend schools as his life is at severe risk of being killed or attacked.

14. The prisoner does not drink alcohol, nor smokes.

SUBMISSION ON SENTENCE BY PROSECUTION & DEFENCE COUNSELS

15. Counsel for the Defence submitted the following mitigating and aggravating factors.

1. Mitigating factors:
   
   • Prisoner is a Juvenile.
   • He is a first-time offender
   • He entered an early guilty plea.
   • He co-operated with the Police throughout their investigations.
   • He is remorseful of his actions and he takes responsibility and appreciates the gravity of his offence.
     
2. Aggravating factors:
   
   • The prisoner acted in company of others
   • The offence was a serious offence.

16. Likewise, the Counsel for the State submitted the following mitigating and aggravating factors.

1. Aggravating factors:
   
   • Was in company of others who were armed with offensive weapons.
   • The victim is emotionally traumatized for life.
   • Prevalent offence.
   • Happened in the early hours of the night.
   • Offender and his accomplices took turns to rape the complainant.
   • Offender was 17 and so he understood what he was doing was wrong.
     
2. Mitigating factors:
   
   • Pleaded guilty.
   • First time offender.
   • No prior convictions.
   • Juvenile offender.
   • Shown genuine remorse in his allocutus.

17. The Defence Counsel referred me to Section 76 (1) of the Juvenile Justice Act which provides the following terms:

1. Encourages the juvenile to understand the consequences of and be accountable for the harm caused by his or her actions;
   
2. Promote an individual response which is appropriate to the juvenile’s circumstances and proportionate to the circumstances surrounding the offence;
   
3. Promote the rehabilitation and reintegration of the juvenile into the family and community;
   
4. And ensure protection of the public.
   

18. The Defence Counsel also referred me to Section 6 (b) of the Juvenile Justice Act and submitted that the primary consideration on sentencing a juvenile is to serve the best interest of the juvenile. The Defence further clarified in his submission that its proposition on appropriate sentence is for the best interest of the juvenile as to rehabilitate, and reintegrate the juvenile into the family and community, concurrently reinforcing a sense of responsibility on the juvenile, while acknowledging the wrong done to the victim.

19. The Defence Counsel further submitted that Section 80 (1)(m) or (n) and 81 (1) of the Juvenile Justice Act protects the Juveniles from being kept in custody, and being imprisoned unless the Court on reasonable grounds finds no alternatives than to give a custodial sentence.

20. The State Counsel referred me to the case authority of State v AB (Juvenile) [2016] PGNC 245; N6440 where his Honour Justice Toliken stressed the same sentiments as raised above by the Defence Counsel, and warning authorities who deal with juvenile sentencing on the significance of applying the principles provided under Sections 6 of the Juvenile Justice Act.

ISSUES FOR THE COURT’S DETERMINATION

21. Both the State and the Defence Counsels have singled out the main issue which I am inclined to accept as a profound issue for this Court to address.

What is the Appropriate Sentence to be imposed on the Juvenile under the circumstance?

22. I am cautioned under the Juvenile Justice Act, as to deal with the juvenile sentencing. I take note of the case of State v AB (Juvenile) [2016] PGNC 245; N6440, where a Juvenile aged 13 years went on top of a girl and sexually penetrated her vagina with his penis without her consent, aided by his accomplice, one Timothy Robert, who held down the victim by her hands and removed her shirt and shorts. His Honour Justice Toliken as the trial Judge deferred the sentence and imposed 3 years on probation with conditions to pay compensation to the victim with four baskets of yams valued at K60 each, and a live pig valued at K500, within 6 months from the date of the order. His Honour did so by emphasizing that an imprisonment term is not necessary to be applied on a juvenile, but rather take alternative measures for rehabilitation and reintegration, as they are not mature in mind to understand the consequences of their actions. I quote the relevant part of His Honour Justice Toliken’s pronouncements in State v AB (Juvenile) [2016] PGNC (supra) as follows:

“Section 6 of the Juvenile Justice Act provides for the general principles that must guide a court or persons exercising jurisdiction or power over a juvenile. Among other things, special considerations apply in respect of proceedings against juveniles because of their youth and vulnerability, and therefore, they must be treated separately from adults. They are entitled to enhanced protections to ensure that they are treated fairly and that their rights are respected. The best interests of the juvenile are the primary or paramount consideration. Juveniles must be held accountable to their actions, but emphasis should be rehabilitation and reintegration, while acknowledging the juveniles’ lack of maturity and their limited capacity to appreciate the consequences of their actions. They must be dealt with in an individualized manner and there must be proportionality between the circumstances of the juveniles, the nature of the offence and interest of society. And within the limits of proportional accountability, measures to be taken against a juvenile must one that reinforce respect for societal values, encourages restorative justice for harm done to victims and to the community. Where appropriate, parents, the juveniles’ family, the community and other agencies must be involved in rehabilitating and reintegrating a juvenile (Section 6 (a) (b) (j) (k) (l).”

23. On the contrary, this case involves a juvenile aged 17 at the time of the commission of the offence and not 14 years of age. The juvenile asserted that he willingly resorted to committing rape as an act of retaliation upon an incident that occurred earlier. In affirmation to the Pre-Sentence Report, in today’s society murder and rape are simultaneously associated to acts of revenge or retaliation, especially in Melanesian societies, occurring either on a daily basis or occasionally, with little to no decisive leaders and mediators to resolve the prevalence of these conducts. I am content with the State’s submission that an imprisonment term be imposed under Section 81 (2) of the Juvenile Justice Act, in this case, where the juvenile is above the age of 14 years and has committed an indictable offence.

24. I am satisfied with the State’s submission that an appropriate sentence for the Juvenile is to impose 4-5-year term with light labor at Boram, given the circumstances in this case. This is substantiated by the Pre-Sentence Report which contends against a non-custodial sentence, considering the risks and tension involved in the community. The Defence also submitted that the Juvenile be given a 3 years custodial sentence, less the time spent in custody.

25. Although I am cautioned under Section 80 (1) and Section 81 (1), as well as His Honour Justice Toliken’s pronouncements in the State v AB (Juvenile) [2016] PGNC 245; N6440 (supra) against imposing a custodial sentence, I find this case to be an exception for custodial sentence. This is for the best interest of the Juvenile as provided under Section 6 of the Juvenile Justice Act, under the circumstances that he is at great risk to be released back into the community, taking into account that there is potential threat and ongoing conflict with a proliferation of killing and rape in his community.

26. Further, the juvenile was 17 years of age, during the time he committed an indictable offence making him subject to an imprisonment term of 15 years or life years, pursuant to section 19 of the Criminal Code. Therefore, I am inclined to agree with the Pre-Sentence Report, the State’s Submissions and the Defence’s Submission to impose a custodial sentence on the Juvenile.

27. Accordingly, I make the following orders:
    
    1. The Juvenile is sentenced to 3 years in IHL.
    2. The sentence of 7 months be deducted for time spent for pre-trial period.
    100. The balance sentence of 2 years be served at Erap Boys Town Juvenile Rehabilitation Centre in Lae, Morobe Province.
    4. The Juvenile is to be transferred from the Juvenile Section of the Boram Correctional Institute within a period of 3 months from the issue of this order.
    5. The Juvenile Justice Services under the Department of Justice and Attorney General shall assist in facilitating the transfer of the Juvenile in terms of funding the travel expenses and other relevant expenses for the Juvenile’s welfare.
    6. The Juvenile must abide by the rehabilitation guidelines set by the Erap Boys Town on Juvenile Rehabilitation Centre.
    7. The Juvenile must keep the peace and be of good behavior during the period of his supervision.
    8. The Director of the Erap Boys Town Juvenile Rehabilitation Centre must furnish Rehabilitation Reports to the Juvenile Justice Officer in Wewak every three (3) months upon arrival of the Juvenile.
    9. The Juvenile Justice Services under the Department of Justice and Attorney General shall assist financially in the repatriation of the Juvenile to his home in Angoram District, East Sepik Province.
       

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defendant