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State v JF [2012] PGNC 119; N4827 (22 October 2012)

N4827

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 689 OF 2012

THE STATE

V

A JUVENILE, "JF"

Madang: Cannings J
2012: 11 September, 4, 22 October

CRIMINAL LAW – sentence – sexual touching of child – Criminal Code, Section 229B – guilty plea – juvenile (15-year-old male) offender, 11-year-old female victim – step-siblings.

A 15-year-old boy pleaded guilty to sexual touching his 11-year-old step-sister. The offence was committed in the middle of the night. While the victim was asleep the offender removed her clothes, placed his penis against her vagina and ejaculated on her thigh.

Held:

(1) The maximum penalty being 12 years imprisonment, it was appropriate to use a starting point of six years and assess the mitigating and aggravating factors.

(2) Mitigating factors were: no weapon or aggravated violence used against the victim; relatively small age gap (4 years) between the offender and the victim; the offender was himself a child at the time; he felt that he was unwelcome in the family home; the offender is still a child; he was beaten up by the victim's father; he was unlawfully detained in custody for a long period in the company of adult detainees; he has caused no further trouble; he pleaded guilty; expressed remorse; he is a first-time offender.

(3) Aggravating factors: the victim was very young; absence of consent; extremely serious breach of trust.

(4) The sentence imposed was three years. The pre-sentence period in custody was deducted but none of the sentence was suspended as the pre-sentence report did not warrant probation, there being no evidence of reconciliation with the victim or her father or forgiveness.

Cases cited

The following cases are cited in the judgment:

The State v A Juvenile, "GS", CR 80/2009, 20.05.10
The State v A Juvenile, "JB", CR 66/2012, 18.05.12
The State v Stafford Hambo (2010) N4036

SENTENCE

This was a judgment on sentence for a juvenile offender who pleaded guilty to one count of sexual touching of a child under the age of 16 years in circumstances of aggravation.

Counsel

J Morog, for the State
E Thomas, for the offender

22 October, 2012

1. CANNINGS J: This is the judgment on sentence for a juvenile offender "JF" who has pleaded guilty to one count of sexual touching of a child under the age of 16 years and been convicted of that offence under Section 229B(1)(a) of the Criminal Code in circumstances of aggravation, in that the child was under the age of 12 years and that there was at the time of the offence an existing relationship of trust between the offender and the child.

2. The offence was committed on 3 February 2012 in the family home. JF was 15 years old. He and the victim, his 11-year-old step-sister, and two younger children had gone to sleep in the living room. At 1.00 am, while the victim was asleep, JF removed her clothes, placed his penis against her vagina and ejaculated on her thigh. She woke in a state of shock to find herself naked and wet and saw JF at the sink washing himself. She immediately ran and woke her father (JF's step-father) and reported the incident. JF's biological mother – his step-father's wife – was away at the time.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He stated:

I say sorry to God and to the Court for what I have done. I know that what I did was not good. I want the Court to know that this family did not treat me properly. They did not accept me. I was angry with them, so I did this bad thing. In the eyes of God I promise that I will never do such a thing again. I ask for the mercy of the court. Please put me on probation.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard, I will take into account that he genuinely felt, before committing the offence, that he was not being treated properly by his stepfather and step-siblings. He felt rejected. This sentiment was vindicated in a statement to the court by his mother who feels responsible for not addressing the problems that existed in the family home. He was assaulted by his stepfather soon after the offence was committed, before being handed over to the police. He was unlawfully detained at a police lock-up in the company of adult detainees for four months and three weeks.

PRE-SENTENCE REPORT

6. A pre-sentence report prepared by the Community Corrections and Rehabilitation Service shows that JF is still only 15 years old. He has completed grade 6 but his education has been disrupted by his being in custody for a large part of this year. His biological mother strongly supports him and is gravely concerned about his welfare. His health is sound. Both the victim and her father are still distressed about what happened. They do not forgive him and do not support the proposal for a suspended sentence. They do not want him to return to the family home. They are not interested in reconciliation or compensation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Thomas highlighted the early guilty plea and that the offender is a child himself. He has no prior convictions. There was no physical violence involved. There was a moderate age gap between the offender and the victim. A sentence of no more than four years should be imposed.

SUBMISSIONS BY THE STATE

8. Mr Morog agreed that a sentence of three to four years would be appropriate.

DECISION MAKING PROCESS

9. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. The indictment was presented under Section 229B (sexual touching) of the Criminal Code, which states:

(1) A person who, for sexual purposes—

(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or

(b) compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person's own body,

is guilty of a crime.

Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.

(2) For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.

(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

(5) 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 to imprisonment for a term not exceeding 12 years.

11. The circumstances of aggravation prescribed by Sections 229B(4) and 229B(5) were charged in the indictment. The maximum penalty is therefore 12 years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a 'starting point' for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. The actual sentence imposed can be above, below or the same as the starting point depending on whether the aggravating factors outweigh the mitigating factors (resulting in a sentence above the starting point); the mitigating factors outweigh the aggravating factors (resulting in a sentence below the starting point); or the mitigating and aggravating factors are balanced (resulting in the starting point being the sentence). In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of six years as the starting point.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

13. As I pointed out in The State v Stafford Hambo (2011) N4120 most sentences for adult offenders for the offence of sexual touching of a child have fallen within the range of three to six years depending on the circumstances of each case and whether the offender has pleaded guilty. Where the offender is also a child the sentences have been lesser. Two recent cases provide useful points of reference. In The State v A Juvenile, "GS", CR 80/2009, 20.05.10 the 13-year-old male offender was under a quilt with the victim and put his hands inside her underwear and touched her vagina with his fingers. He was badly beaten by the victim's father. He pleaded guilty and was sentenced to two years in custody. In The State v A Juvenile, "JB", CR 66/2012, 18.05.12 the 14-year-old male offender was playing with the victim, an 8-year-old boy, and took him into the bush where he placed his penis against his anus while attempting penetration. The offender was given a sentence of two years, which was fully suspended due to reconciliation between the offender's family and the victim's family.

STEP 4: WHAT IS THE HEAD SENTENCE?

14. The head sentence will reflect the following mitigating and aggravating factors.

15. Mitigating factors:

• no weapon or violence used against the victim;
• there was a relatively small age gap (4 years) between the offender and the victim;
• the offender was himself a child at the time;
• he felt that he was unwelcome in the family home and that he was not being treated properly by his stepfather and step-siblings;
• the offender is still a child;
• he was assaulted by the victim's father;
• he was unlawfully detained in custody for almost five months in the company of adult detainees;
• he has caused no further trouble;
• he pleaded guilty and it was an early guilty plea;
• he has expressed remorse;
• he is a first-time offender.
  

16. Aggravating factors are:

• the victim was very young;
• there was no consent;
• it was an extremely serious breach of trust.
  

17. There are more mitigating factors than aggravating factors so a sentence below the starting point is warranted. This case is more serious than the cases of "GS" and "JB". However, the offender has been let down by the justice system in that he has been detained unlawfully for a very long time in the company of adult detainees, which amounts to an alarming breach of human rights under Section 37(19) (protection of the law) of the Constitution, which provides:

Persons under voting age [which is 18 years, Constitution, s 126(3)] who are in custody in connexion with an offence or alleged offence shall be separated from other persons in custody and be accorded treatment appropriate to their age.

I fix a head sentence of three years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment, the whole of the pre-sentence period which is four months, three weeks.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

19. The decision whether to commit a juvenile offender to prison and the decision whether to suspend part or all of a sentence are amongst the most difficult for any Judge. In making those decisions in this case I have taken into account the matters prescribed by Section 31 (factors to be taken into account in committal to imprisonment or custody), which states:

In reaching a decision as to whether a juvenile should be committed to imprisonment or custody, the Court shall take into account the following factors:—

(a) the seriousness of the offence and the circumstances in which it was committed;

(b) the age, maturity, education, health, character and attitude of the juvenile;

(c) the juvenile's parental and family background as well as the social and community environment in which he lives and to which he is likely to return;

(d) the juvenile's previous history in respect of offences and his responses to previous orders in relation to those offences;

(e) the community services and facilities that are available to assist the juvenile and his willingness to use those services or facilities;

(f) any proposals that the juvenile or his parents may put forward for the future improvement of the juvenile;

(g) any views of a Juvenile Court Officer in relation to the juvenile;

(h) any views of any person who is involved in the education or custody of the juvenile;

(i) any other factor that the Court may consider relevant.

20. The factors that I find compelling in this case are the attitude of the victim and her father (the offender's step-father). The victim feels humiliated by what happened. She was sexually violated in an appalling way. Her father is still angry. There are no realistic prospects of forgiveness in the foreseeable future. In these circumstances it is best that the offender serve his sentence in custody with no suspension. He will be punished and be seen by the victim and her father to be punished. I think that serving his sentence in custody will also, in this case, be in the interests of the offender. He appears to be a very intelligent boy. He obviously understands that he has done wrong and I am confident that he will understand why this decision is being made and be able to deal with the consequences. He will be committed to custody immediately at Beon Correctional Institution, where there is a good Juvenile Section, and he will be able to apply to the Court for transfer to a Juvenile Correctional Institution such as those at Wewak or Erap.

SENTENCE

21. The juvenile "JF", having been convicted of one count of sexual touching of a child under the age of 16 years contrary to Section 229B (1) (a) of the Criminal Code in circumstances of aggravation under Sections 229B (4) and (5) of the Criminal Code, namely that the child was under the age of 12 years and that there was at the time of the offence an existing relationship of trust between the offender and the child, is subject to the following sentence:

Sentenced accordingly
_________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender