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Independent State of Papua New Guinea v J. K. [2012] PGNC 348; N4748 (26 July 2012)

N4748

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.5 of 2012

BETWEEN:

INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:

A JUVENILE "JK"
Prisoner

Mt. Hagen: David, J
2012: 5 April & 11 & 26 July

CRIMINAL LAW – sentence - indictable offence engaging in act of sexual penetration with a child under the age of 16 years – prisoner aged 12 years - child aged 3 years – introduction of penis into victim's mouth – introduction of finger into victim's vagina - prisoner acted alone - no use of threatening weapon or aggravated physical violence – no physical injury although perforated hymen and superficial abrasions on right side of vulva - isolated incident - cooperation with police – no further trouble to victim and family since incident - plea of guilty – demonstration of remorse – first offender – youthful offender – parental and family background and limited educational background – big age difference – victim well under age of 16 years - lack of consent – existing relationship of trust, authority or dependency – prisoner and victim distantly related – victim under care of prisoner – prisoner did not give myself up after incident – seriousness, prevalence and abhorrence of society to offence - sentence of 10 years both in light and hard labour – custodial and non-custodial sentence - Criminal Code, Section 229A (1) and (2).

Facts:

The prisoner pleaded guilty to one count of engaging in an act of sexual penetration with a child under the age of 16 years contrary to Section 229A (1) and (2) of the Criminal Code. The prisoner was a 12 year old male juvenile and the victim a 3 year old female. They were distantly related. Sexual penetration was achieved by the prisoner introducing his penis into the victim's mouth and his hand in the victim's vagina. Medical report revealed that the victim had a perforated hymen and existence of abrasions on the right side of the vulva. The offence was committed in the victim's house when the babysitter went to do laundry at a nearby creek and the victim's mother was away at work.

Held:

The prisoner was sentenced to ten years imprisonment both in light and hard labour less period served on remand. Four years was suspended on the condition that the prisoner entered into his own recognizance without surety to keep the peace and be of good behaviour for a period of four years.

Cases cited:

The following cases are cited in the judgment.

Paulus Manadatititip & Anor. v The State [1978] PNGLR 128
Peter Naibiri & Kutoi Soti Apia v The State (1978) SC 137
Public Prosecutor v Tom Ake (1978) PNGLR 469
Kuri Willie v The State (1987) PNGLR 298
Lawrence Hindemba v The State (1998) SC593
The State v Eddie Peter (No 2) (2001) N2297
The State v Damien Mangawi (2003) N2419
The State v Junior Apen Sibu (No.2) (2004) N2567
The State v Pennias Mokei (No 2) (2004) N2635
The State v Ezra Hiviki (2004) N2548
The State v Peter Lare (2004) N2557,
The State v Eddie Trosty (2004) N2681
The State v Kemai Lumou (2004) N2684
The State v John Ritsi Kutetoa (2005) N2814
The State v Kaminiel Okole (2006) N3052
The State v Tiama Esrom (2006) N3054
The State v Biason Benson Samson (2005) N2799
The State v Ndrakum Pu–Uh (2005) N2949
The State v Brown Kawage (2009) N3696

Counsel:

Joe Kesan & Philip Tengdui, for the State
Philip L. Kapi, for the prisoner

DECISION ON SENTENCE

26 July, 2012

1. DAVID, J: On Thursday, 5th April 2012, I convicted the male prisoner, a juvenile on a plea of guilty upon being indicted for committing an offence under Section 229A (1) of the Criminal Code; engaging in an act of sexual penetration with a child under the age of sixteen years. The victim's age at the time of the incident of three years was charged in the indictment as a circumstance of aggravation under Section 229A (2) of the Code. The prisoner was twelve years old at the time.

2. The short facts presented to the Court for purposes of arraigning the prisoner were these. The prisoner originates from Poroma in the Southern Highlands Province, but now resides at Kumunga village, Hagen Central in the Western Highlands Province. On 21 October 2011, the prisoner was at the village with the victim at the victim's house. The victim's mother went to work leaving the victim with the babysitter. The babysitter left the victim with the prisoner in the house to do laundry at a nearby creek. While the babysitter was away, the prisoner undressed the victim who was three years old at the time. After locking the doors to the house, the prisoner sexually penetrated the victim by inserting his penis into the victim's mouth and by inserting his fingers into her vagina. While doing that, the prisoner told the victim to close her eyes and he repeatedly said to her "Yu em nana bilong me ya". The events were relayed to the victim's mother when she returned from work in the afternoon. The victim's mother then took the victim to the Mt. Hagen General Hospital for a medical check up. The medical report confirms that the victim's vagina was sexually penetrated. The prisoner was apprehended and brought to the police the next day, formally arrested and charged for the offence.

3. The record of interview dated 31 October 2011 contains no admission to the offence. However, the statements of Anna Pianga and Ellaine Pianga, the victim's mother and sister respectively and the medical report of Dr. Zzferio, O & G Service Registrar of the Mt. Hagen General Hospital dated 26 October 2011 support the charge. The victim was medically examined on 21 October 2011 at the Mt. Hagen General Hospital sometime in the evening. The medical report reveals, amongst other things, that the victim had a perforated hymen and the existence of superficial abrasions over the right region of the vulva. It was concluded that there was vaginal penetration.

4. In his allocutus, the prisoner said he was brought up in a broken home therefore having a difficult upbringing. His father had left him and his mother. He committed the offence so that his father could get the blame for his conduct.

5. Following the administration of the allocutus, the prisoner requested through his lawyer for a pre-sentence report to be provided by the Probation Service here and for a deferral of submissions on sentence pending the filing of the report. I granted the application and directed that the report be filed by 9:30 am on 12 April 2012. The report was furnished by the Probation Service as directed, but submissions on sentence could not be heard as scheduled due to my being called to help out in Waigani for the balance of the April 2012 circuit. Circuit arrangements thereafter for myself and lawyers for the parties have not made it possible for me to hear submissions on sentence until this circuit.

6. The prisoner is now 13 years old. He is the fourth born of 6 siblings in his family comprising 5 males and a female. His parents are alive, but his father left him and his mother when he was 2 years old. Until the offence, he was residing at Kumunga village which is located just outside of Mt. Hagen city with his mother and another brother and was a student at the Kelua Primary School doing Grade 3. He is a first offender. He has been in custody since 22 October 2011 and that works out to be 9 months and 4 days. He attends the Lutheran Church.

7. In mitigation it was submitted that; the prisoner is a first offender, he co-operated with the police; he pleaded guilty despite initially denying committing the offence hence saving the trouble and expense of a trial; he was a youthful offender being a juvenile; no weapon was employed; he acted alone; he expressed remorse; this was an isolated incident; and there was little or no psychological effect on the victim because she was only 3 years old at the material time to recollect what happened.

8. Mr. Kapi submitted that given the presence of a good number of factors in mitigation, more particularly the fact that the prisoner is a juvenile, he urged the court to impose a short sharp sentence that best befits the crime. He suggested that a sentence between 5 to 6 years less time spent in custody already awaiting trial and sentence partly or wholly suspended was appropriate. A prolonged detention could make the prisoner potentially dangerous than he is now because he will be exposed to bad influences by other prisoners counsel said.

9. Mr. Kapi invited me to consider two decisions of the National Court on sentence namely, The State v Biason Benson Samson (2005) N2799; and The State v Ndrakum Pu–Uh (2005) N2949. I have considered them.

10. In Biason Benson Samson, on a plea of guilty, the Court sentenced a 17 year old prisoner to 5 years imprisonment for committing the offence of sexual penetration of a child under the age of 16 years against the victim who was aged 13 years. No weapon was used, there was no aggravated physical violence or physical injury committed on the victim and there was no breach of trust. The prisoner was ordered to serve 2 years while 3 years was suspended.

11. In Ndrakum Pu–Uh, on a plea of guilty, the Court sentenced a 38 year old prisoner to 4 years imprisonment for committing the offence of sexual penetration of a child under the age of 16 years against the victim who was aged 12 years and in breach of a relationship of trust, dependency or authority. The prisoner was the victim's uncle. The medical report described a torn hymen. No part of the sentence was suspended.

12. In aggravation it was submitted that; there was a relatively big age difference of 9 years, the offender was aged 12 years at the material time and the victim was of a tender age of 3; the victim was well under the age of 16 years; there was an existing relationship of trust, dependency or authority which was breached the prisoner and the victim being distantly related; and the offender has not done anything tangible towards repairing his wrong, for example, paying compensation to the victim or her family.

13. Mr. Tengdui for the State submitted that in considering an appropriate sentence for the prisoner, I should adopt and apply the starting point of 15 years suggested by Cannings, J in Biason Benson Samson which could either be adjusted upward or downward or left at the starting point depending on the factors in mitigation or aggravation of the offence. Counsel conceded that factors in mitigation in the present case outweigh the factors in aggravation therefore a sentence below the starting point of 15 years was appropriate. He however urged the Court to impose a sentence of not less than 10 years imprisonment less pre-sentence period spent in custody because of the seriousness of the offence and the society views this offence with abhorrence. He contended that this point has been repeatedly reiterated in many cases by both the Supreme and National Courts such as the decision of the Supreme Court in Lawrence Hindemba v The State (1998) SC 593 and strong deterrent and punitive sentences in the form of a custodial sentence are usually imposed by the courts. The Court in its discretion could consider suspending half of the remaining term counsel further submitted.

14. I was also referred to; The State v Damien Mangawi (2003) N2419; The State v Peter Lare (2004) N2557; The State v Eddie Trosty (2004) N2681; The State v Kemai Lumou (2004) N2684; and The State v Tiama Esrom (2006) N3054. I have considered them.

15. In Damien Mangawi, Kandakasi, J imposed a sentence of 12 years imprisonment in hard labour on a guilty plea by a first time offender. The prisoner was charged under the old Section 213 of the Code which created the offence and prescribed the penalty for unlawful carnal knowledge of a girl under the age of 12 years. The maximum penalty subject to Section 19 of the Code was imprisonment for life as is the case under Section 229A (2). There, the victim was aged 3 years and the prisoner aged 16 years. The prisoner was the paternal uncle of the victim. The prisoner forcefully had sexual intercourse with her after taking her away from the village in a breach of trust situation. The victim had difficulties urinating due to injuries to her vagina. The prisoner expressed no remorse.

16. In Peter Lare, Kandakasi, J imposed a sentence of 20 years imprisonment in hard labour on a guilty plea by a first time offender as the aggravating factors far outweighed the factors in his favour. The prisoner was charged under Section 229A. The prisoner was an uncle to the victim and he had several and or repeated acts of sexual penetration of the victim over a long period in a breach of trust situation. The victim was actually adopted by the prisoner and his wife when her parents died while she was a baby and was dependant on the prisoner for her upkeep. The prisoner's wife was actually the victim's aunt. The prisoner did not cause any injuries to the victim, but medical evidence showed that the prisoner infected the victim with a sexually transmitted disease. There was a substantial age difference between them. The prisoner was 40 years old whilst the victim was under the age of 12 years. The prisoner did not express any genuine remorse, evidenced by a lack of payment of any form of compensation to the victim and her relatives.

17. In Eddie Trosty, Kandakasi, J imposed a sentence of 6 years imprisonment in hard labour on a guilty plea by a first time offender to a charge under Section 229A (1). The victim was the prisoner's girl friend. The victim was 15 years old whilst the prisoner was 21 years old at the time of the offence. They had sexual intercourse several times before with the victim's consent. The prisoner did not cause any injuries to the victim.

18. In Kemai Lumou, Kandakasi, J sentenced the prisoner to 17 years imprisonment in hard labour. The victim was aged 14 years and the prisoner 22 years old. The prisoner was charged under Section 229A (1) of the Code and convicted after a trial. The victim was the prisoner's niece. The incident happened on her way to school. The prisoner had gone ahead of the victim and hid amongst some bamboo until she got to where he was. When she turned up, the prisoner grabbed her and tried to take her into the nearby bushes. The victim tried to shout for help, but the prisoner threatened to cut her with a bush knife and shut her mouth. The prisoner then removed the victim's short, forced her to the ground and sexually penetrated her.

19. In Tiama Esrom, Lenalia, J imposed a sentence of 12 years imprisonment in hard labour for one count of sexual penetration pursuant to Section 229A (1), (2) and (3) aggravated by an existing relationship of trust, authority and dependency and that at the time of the offence, the victim was aged 9 years while the prisoner was aged between 50 and 60 years. The victim was the daughter of the prisoner's first born daughter, i.e., the prisoner's granddaughter.

20. The prisoner has been convicted under Section 229A (1) of the Code. That provision creates the offence as well as prescribing the penalty. The maximum penalty for a conviction under sub-section (1) is subject to sub-sections (2) and (3), imprisonment for a term not exceeding 25 years. If the child is under the age of 12 years or there is an existing relationship of trust, authority or dependency between the offender and victim, the maximum penalty for the offence is life imprisonment. It is not open to the Court however to impose a sentence any longer than 25 years if the circumstances of aggravation in sub-sections (2) and (3) are not pleaded in the indictment. If they are not so pleaded, they may nevertheless be considered as aggravating factors when deciding an appropriate sentence within the range of 25 years. The general sentencing discretion of the Court still applies in all situations covered under Section 229A.

21. I set out Section 229A below:-

"229A. 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 Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) 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, subject to Section 19, to imprisonment for life."

22. The phrase "sexual penetration" is defined by Section 6 of the Code. It reads:-

"6. Sexual penetration.

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes."

23. It is clear that sexual penetration in the present case was achieved by the introduction of the prisoner's penis into the victim's mouth and inserting his finger into the victim's vagina within the meaning of Section 6 of the Code.

24. The phrase "relationship of trust, authority or dependency" is defined by Section 6A of the Code. It reads:-

"6A. Relationship of trust, authority or dependency

(1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where—

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care and control."

25. In the present case, the fact of the victim being under the age of 12 years and 3 years to be a little precise at the material time was pleaded in the indictment as a circumstance of aggravation, so the maximum sentence I could impose is imprisonment for life.

26. Whilst there is evidence demonstrating an existence of a relationship of trust, authority or dependency between the prisoner and the victim since the prisoner and the victim were distantly related and the offence was committed when the victim was left in the care or custody of the prisoner when the babysitter went to do laundry at a nearby creek and while the victim's mother was away at work hence giving rise to a breach, the State has not pleaded the circumstance of aggravation in the indictment. This to my mind makes the present case less serious than if both circumstances of aggravation in Section 229A (2) and (3) of the Code were pleaded in the indictment. The prisoner is indeed fortunate in that respect. Nonetheless, I will treat the breach as an aggravating factor.

27. In Biason Benson Samson, Cannings, J restated a list of considerations for sentencing in respect of child sexual penetration cases which His Honour previously mentioned in The State v Pennias Mokei (No 2) (2004) N2635. I adopted the considerations mentioned in Pennias Mokei (No 2) in The State v Brown Kawage (2009) N3696. I will now adopt the considerations mentioned in Biason Benson Samson and apply them in the following manner:

1. Is there only a small age difference between the offender and the victim? No, the victim was 3 years old and the prisoner 12 years old, a difference of 9 years.
   

2 Is the victim not far under the age of 16 years? No, the victim was well under 16 years of age.

3 Was there consent? No, the victim did not consent.

4 Was there only one offender? Yes, the prisoner acted alone.

5 Did the offender not use a threatening weapon and not use aggravated physical violence? Yes, he neither used a threatening weapon nor used aggravated physical violence.

6 Did the offender not cause physical injury and not pass on a sexually transmitted disease to the victim? Yes the victim's hymen was perforated and there was a superficial abrasion over the right region of the vulva and the prisoner did not pass on a sexually transmitted disease.

7 Was there no relationship of trust, dependency or authority between the offender and the victim or, if there was such relationship, was it a distant one? No, there was an existing relationship of trust, dependency or authority, the prisoner and the victim being distantly related and the victim was left under his care.

8 Was it an isolated incident? Yes.

9 Did the offender give himself up after the incident? No, he did not hide or voluntarily surrender, but was taken to the Police Station by the victim's mother the day after the incident.

10 Did the offender cooperate with the police in their investigations? Yes.

11 Has the offender done anything tangible towards repairing his wrong, eg, offering compensation to the family of the [victim], engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? The prisoner and his mother or their relatives were financially incapable of paying compensation. The prisoner's mother has tried to apologise to the victim's mother on behalf of the prisoner, but the victim's mother has refused to accept the apology. This is a neutral factor.

12 Has the offender not caused further trouble to the victim or the victim's family since the incident? Yes, he has caused no further trouble.

13 Has the offender pleaded guilty? Yes.

14 Has the offender genuinely expressed remorse? He demonstrated remorse.

15 Is this his first offence? Yes.

16 Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Yes he is a juvenile because he is aged not less than 7 years and less than 18 years as defined by Section 2 of the Juvenile Courts Act, 1991.

17 Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes, he comes from a broken home with a difficult upbringing and limited educational background.

28. I find that the factors which mitigate the offence are that; the prisoner acted alone; there was no use of any threatening weapon or aggravated physical violence; no physical injury was inflicted on the victim although her hymen was perforated and superficial abrasions were caused on the right side of the vulva and the prisoner did not pass on a sexually transmitted disease; this was an isolated incident; the prisoner co-operated with the police; the prisoner has caused no further trouble to the victim and her family since the incident; the prisoner pleaded guilty despite initially denying committing the offence hence saving the trouble and expense of a trial; the prisoner demonstrated remorse; the prisoner is a first offender; the prisoner was a youthful offender being a juvenile (personal circumstances such as his age and maturity at the time of the incident are considered); and the prisoner's parental and family back ground and his limited educational background.

29. I reject Mr. Kapi's submission that there was little or no psychological effect on the victim because she was only 3 years old at the material time to recollect what happened. There is no medical or scientific evidence produced before me by counsel to support that submission. However, it is generally accepted that in sexual penetration cases, some degree of emotional and psychological trauma occurs, severe or otherwise and psychological consequences follow naturally.

30. I have accepted that the prisoner demonstrated remorse although he did not express it openly in court. My observation of the appearance of the prisoner in the dock whilst administering the allocutus was that he was very timid and his youthfulness and nerves may have got the better of him to actually express remorse. In any event, he did not say much; he only made a perfunctory effort. A guilty plea is by and large deemed to indicate remorse and contrition. This principle was endorsed by the Supreme Court in Public Prosecutor v Tom Ake (1978) PNGLR 469.

31. I find that factors which aggravate the offence are; there was a relatively big age difference of 9 years, the prisoner was aged 12 years at the material time and the victim was of a tender age of 3; the victim was well under the age of 16 years; there was a lack of consent; there was an existing relationship of trust, authority or dependency; the prisoner did not hide or voluntarily surrender, but was taken to the Police Station by the victim's mother the day after the incident; and the seriousness, prevalence and the abhorrence of the society to the offence.

32. I accept that no compensation has been paid to the victim or her relatives and that there has not been any reconciliation between the prisoner and the victim and their families. I will treat these as neutral factors.

33. The factors in mitigation significantly outnumber those in aggravation.

34. I have also considered the following cases:

35. In The State v Junior Apen Sibu (No.2) (2004) N2567, the prisoner was convicted of the rape of a girl aged 10 years contrary to Section 347 (1) of the Code after a trial. The prisoner; was aged 16 years, single and unemployed; was a first time young offender; did not use any offensive weapons to commit the offence. The victim did not suffer any physical injuries although her hymen was ruptured. Factors going against the prisoner were; rape was a violent offence against females both young and old; the offence was prevalent; the offence was against a small girl with an age difference 10 years; it was a breach of trust situation because the prisoner was related to her as an uncle; and he expressed no remorse. The prisoner was sentenced to 13 years imprisonment in hard labour.

36. In The State v Eddie Peter (No 2) (2001) N2297, the prisoner was convicted of the rape of a young 11 year old primary school girl in breach of a de facto trust with some violence and threat after a trial on a charge laid pursuant to Section 347 of the Code. The rape occurred when the victim was on the way to school and it was after the prisoner had failed in an earlier attempt to have sex with her. The prisoner was aged about 34 years at the time of the offence and was regarded as an uncle because he was married to the victim's aunt. The Court imposed a sentence of 17 years imprisonment in hard labour

37. In Lawrence Hindemba, the Supreme Court dealt with an appeal against the severity of sentence. The Supreme Court quashed the sentence of 10 years for the rape of a small girl imposed by the trial judge on a guilty plea and increased the sentence to 15 years. The Supreme Court was of the view that the trial judge's sentence did not reflect the seriousness of the crime and the abhorrence of the society. The girl was 10 years old and the prisoner aged 20 years. There, the appellant grabbed the victim as she was returning from school, carried her into the nearby bush, threatened her with a pocket knife, refused to let her go when the victim's sister intervened to free her and had sex with her by force in the presence of other school children. During the encounter, the victim was in immense pain and her vagina bled. The medical report confirmed that forced sexual intercourse took place with visible injuries to her vagina.

38. In The State v Ezra Hiviki (2004) N2548, the prisoner was convicted of the rape of a girl aged 10 years by an older relative contrary to Section 347 (1) of the Code on a guilty plea. The prisoner aged 16 years was the victim's first cousin. The offence occurred in a breach of trust situation. Vaginal injuries required medical repair, there was expression of remorse, and the prisoner was a first time young offender. The Court sentenced the prisoner to 13 years imprisonment IHL.

39. In The State v John Ritsi Kutetoa (2005) N2814, Cannings, J imposed a sentence of 17 years imprisonment in hard labour on a guilty plea to a charge under Section 229A by a first time offender in an existing relationship of trust which the prisoner breached. The victim was the prisoner's step daughter. On the date of the incident, the prisoner was heavily intoxicated. He returned to the house around midday where he found the victim with his stepson. The prisoner got the victim into a room in their house where he sexually penetrated her. She was about 11 years old and the prisoner in his early 40s.

40. In The State v Kaminiel Okole (2006) N3052, Lenalia, J on guilty pleas, imposed sentences of 9 years and 8 years respectively for the first two counts of sexual penetration pursuant to Section 229A (1), (2) and (3) to be served consecutively and 5 years for the third count for abuse of trust, authority or dependency contrary to Section 229E (1) which was to be served concurrently with count two. The Court ordered that 2 years would be suspended from the head sentence of 17 years on condition that the prisoner served 15 years of his sentence. The offences were aggravated by; an existing relationship of trust, authority and dependency and the abuse of trust; the victim was under the age of 12 years and a substantial age difference. At the time of the offences, the victim was the prisoner's step daughter having been married to her mother. The victim was aged about 9 or 10 years when the prisoner started sexually abusing her which continued for over a period of over 8 years when she later became pregnant which revealed her predicament.

41. What is the appropriate head sentence that I should impose? I have already found that the factors in mitigation significantly outnumber those in aggravation. I find therefore that the circumstances of the present case do not warrant the imposition of the maximum penalty prescribed of imprisonment for life. The prisoner has made out a case for the imposition of a lesser determinative sentence which will be below the starting point of 15 years. This case comes closer to Damien Mangawi. I will impose a sentence similar to or closer to that case.

42. Having considered all the factors for and against the prisoner including the need for the Court to impose a deterrent sentence due to the seriousness of the offence and comparing the present case with the cases referred to above, I think a sentence of 10 years both in light and hard labour less time spent on remand of 9 months and 4 days is appropriate. Light labour will apply before the prisoner attains the age of 18 years. The remaining term that the prisoner will need to serve is 9 years 2 months and 24 days.

43. Should I suspend all or part of the remaining term given the seriousness of the offence, age of the prisoner, age of the victim, and the circumstances in which the offence was committed?

44. The pre-sentence report which I have considered reports that the prisoner is not a suitable candidate for a non-custodial sentence. The report states four reasons why the prisoner should serve his sentence in custody. First, proper rehabilitation and counselling programmes are available in correctional institutions which the prisoner will benefit from. Second, the seriousness of the offence warrants. Third, the victim is a minor. Fourth, no reconciliation has been made between the prisoner and the victim and compensation of any form has not been paid to the victim or her family.

45. Youthfulness of an offender is usually treated as a strong mitigating factor. However, the Supreme Court has said that youthfulness cannot continue to be a mitigating factor in serious cases like wilful murder, rape, armed robbery and the like. Instead, strong deterrent sentences need to be imposed where the offence is prevalent and youthful offenders should not receive special treatment unless there are exceptional circumstances which warrant leniency: Paulus Manadatititip & Anor. v The State [1978] PNGLR 128; Peter Naibiri & Kutoi Soti Apia v The State ( 1978) SC 137. In Kuri Willie v The State (1987) PNGLR 298, Hinchliffe, J said that where youthful first offenders are to be sentenced, the court should treat imprisonment as a last resort and should investigate alternatives to imprisonment before sentencing.

46. In the instant case, I do agree with the first, second and third reasons given by the Probation Service in the pre-sentence report for a custodial sentence to be imposed. I have already said that the fourth reason will be treated as a neutral factor. I need to strike a balance somewhere under the circumstances considering all the competing factors for and against the prisoner. Whilst the prisoner has committed a serious offence which is prevalent throughout the country and the society views this offence with abhorrence, I consider that the age of the prisoner and the risk of him being exposed to bad influences by other prisoners in jail or the possibility of being abused by adult prisoners are good if not exceptional reasons warranting the sentence to be part custodial and non-custodial. I am satisfied that this will promote personal deterrence, reformation or rehabilitation and a general deterrence to others who may be like minded so as to protect young girls from being defiled. I propose to exercise the discretion vested in the Court by Section 19 (1)(d) of the Code as I think a wholly custodial sentence will be destructive to the prisoner.

47. The prisoner will immediately be incarcerated at the juvenile section of the Baisu Correctional Institution alternatively at Erap Boys Town for 5 years, 2 months and 24 days. I will suspend the balance of the remaining term of 4 years upon the prisoner entering into his own recognizance without surety to keep the peace and be of good behaviour during the period of the suspended sentence. Upon completion of the custodial sentence, the prisoner will be discharged to serve the suspended sentence.

48. A warrant shall issue forthwith to give effect to this sentence.

49. I order accordingly.

Sentenced accordingly.
______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the prisoner