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State v David [2008] PGNC 226; N3612 (6 October 2008)

N3612

PAPUA NEW GUINEA

(IN THE NATIONAL COURT OF JUSTICE)

CR No. 1146 OF 2008

BETWEEN:

THE STATE

AND:

AUGUST DAVID

LIHIR: GAVARA-NANU, J
2008: 6 October

CIMINAL LAW – Sentence – Plea of guilty – Criminal Code Act, (as amended,) s. 229 A (1); Sexual Penetration of a girl aged under 16 years – First time offender – Age gap of 1 year. A youthful offender – Accused and victim having sexual intercourse once before the incident – 2 years imprisonment fully suspended after deducting period spent in custody – 2 years Good Behaviour Bond and fine of K600.00

Cases cited:

Kuri Willie v. The State [1987] PNGLR 298
The State v. Biasion Benson Samson N2749
The State v. Sottie Apusa [1988-89] PNGLR 170

Counsel:

S. Kesno for the State
O. Oeveka for the Accused.

1. GAVARA-NANU J: The accused pleaded guilty to a charge that he on 01 July 2008, at Komain village in Lihir Island sexually penetrated a girl named Jenny Oscar who was under the age of 16, contrary to s. 229 A (1) of the Criminal Code Act.

2. This offence carries the maximum penalty of 25 years imprisonment.

3. According to the victim’s statement to the police, at about 5.30 pm, she was walking back to her house after visiting a relative in the other part of her village. She said the accused followed her and held her by the shirt she was wearing and pulled her into the nearby bushes where he sexually penetrated her. She said she wanted to shout but the accused prevented her by holding her mouth. The accused admitted having sex with the victim but said that the incident was the second time he and the victim had had sex. This is not disputed by the victim. I therefore accept that accused and the victim had had sex once before 01 July, 2008.

4. The accused was 16 years old at the time of the offence, and the victim was about 15 years old. They are still aged 16 and 15.

5. The accused has expressed remorse, and is a first time offender. He has only had primary school education, and is a villager

6. The defence has urged me to impose a non-custodial sentence on the basis that accused is a juvenile.

7. I am of the opinion that the sexual penetration of the victim by the accused on 1st July, 2008, which was the second time he had sexual intercourse with the victim should mitigate his punishment.

8. In my opinion, to decide the punishment for the accused only in the context of the s. 229 A (1) of the Criminal Code Act, would be taking a narrow approach. The fact that accused is a youthful offender should also be taken into account when deciding his punishment.

9. In the case of The State v. Sottie Apusa [1988 –89] 170, the Court in setting out possible sentencing guidelines for offenders against the old offence of unlawful carnal knowledge of a girl under the age of 16, which is equivalent to the current offence of sexual penetration of a child under the age of 16, under s. 229 A (1) of the amended Criminal Code Act, the Court recommended that in a case where there was a very small age difference between the offender and the victim, sentence could be anywhere from a fully suspended sentence to 20 months imprisonment. That case was decided 20 years ago and times have changed and the offence has become prevalent. But the principles applied by the Court in that case are still good and applicable.

10. In a more recently decided case of The State v. Biason Benson Samson N2799, the accused who was charged with sexual penetration of a child under the age of 16 was 17 years old while the victim was 13 years old. The accused was sentenced to 5 years; 3 years were suspended and accused only had to serve 2 years in hard labour. That case can be contrasted with this case because the accused in this case is 16 years old, and further the accused and the victim in this case had sex once before this offence was committed.

11. Youth of an offender also occupies a special place in sentencing regime and it is a strong mitigating factor. For instance in Kuri Willie v. The State [1987] PNGLR 298, the offender aged 18 was convicted for breaking and entering a store and stealing goods valued at K6,642.93. He was a watchman for others who did the break in, he was under the influence of liquor. The accused was sentenced to 3 years imprisonment by the District Court, but on appeal the sentence was varied by the National Court, the appellant was put on 2 years Good Behaviour Bond. The trial judge, Hinchliffe J, said imprisonment must be the last resort when offender is a youth.

12. Sentencing a youthful offender to prison is always a difficult task for the Court to determine because the principal purpose of sending an offender to gaol is to reform him. But when deciding to send an offender to jail, it is always accompanied by the irony that there is a risk that the offender could be exposed to bad influences by other prisoners which may result in the offender becoming worse off than when he went to goal. Another risk is the offender may be abused by adult prisoners. This has happened to young male offenders.

13. As Mr Kesno correctly pointed out, the offence of sexual penetration of a child under 16 years old is prevalent throughout the country and sentences imposed must have an element of deterrence.

14. That being said, I am here faced with the task of deciding whether I should send a 16 years old to gaol for his crime. I have to decide the punishment for the accused on the merits of his case.

15. Section 19 of the Criminal Code Act gives the Court broad discretion in deciding sentences. In that regard, especially in the context of this case, in deciding the punishment under s. 229 (A) (1) of the amended Criminal Code Act, it should be noted that the prescribed maximum penalty of 25 years is a big leap from 5 years imprisonment, which was the maximum penalty under the old s. 216.

16. I have accepted accused’s story that the incident on 01 July, 2008 was the second time he had sex with the victim. It is not in dispute that he is 16 years old and is a youthful offender. I must say that I have had great difficulty in deciding the appropriate punishment for the accused because I had to find the balance between two equally forceful considerations; first is the need to impose a deterrent sentence on the accused given the prevalence of the offence in this area where young and under age girls are being abused and exploited by men of all ages and second is that he is a youthful offender.

17. I have seriously considered imposing a short sharp custodial sentence to remind the accused that the offence is serious. However, after carefully weighing all the relevant factors I have in the end decided against imposing a custodial sentence because of his youth and more significantly, he and the victim had had sex once before 1 July, 2008 and that the age difference between them is only 1 year.

18. There are also no serious aggravating factors which would warrant an immediate custodial sentence.

19. In the result, the accused is sentenced to 2 years in hard labour. I will deduct one week spent in custody. This leaves the balance of sentence at 1 year 11 months 3 weeks. I suspend the whole term and place the accused on Good Behaviour Bond for 2 years from today. Accused is also fined K600.00 for which, his K600.00 cash bail is forfeited to the State.

_____________________________________

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