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State v Saliau [2016] PGNC 207; N6403 (16 March 2016)

N6403

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR: NO. 294 OF 2016

THE STATE

V

EMMANUEL SALIAU

Kerema:Koeget, AJ
2016:08^th and 16^th March

CRIMINAL LAW: - Sentence – Guilty Plea to Sexually Penetration under Section 229A (1) of the Criminal Code Act (as Amended) – wholly suspension of sentence – enter into recognisance without surety and placed on Good Behaviour Bond with condition to keep peace – Section 19 (1) (d) (i) of Criminal Code Act.

INTRODUCTION

The prisoner in this case pleaded guilty to one count of sexual penetration of a girl under the age of 16 years. The charge is brought under section 229A (1) of the Criminal Code Act chapter 262. This is the sentence after the accused pleaded guilty before me in the National Court sittings in Kerema, Gulf Province.

FACTS
On Sunday 27^th of May, 2012; between 10am and 11am, the accused and the victim Felicity as boy friend and girlfriend went into a vacant house in Kerema town. Both of them removed their clothes and had sex in that house. After having sex, both wore their clothes before the care taker of the house arrived and found them.

The parents and relatives of the victim were told about the incident and they went to the house and took the victim away. The parents took the victim to Kerema General Hospital almost immediately and she was examined by a medical practitioner. The medical practitioner a Dr. John Opa, provided a report dated 5^th November, 2013. The medical report confirms absence of hymen consistent with sexual penetration. The victim was then aged 13 years.

The State alleged that the accused had no lawful excuse thereby contravening section 229 A (1) of the Criminal Code Act (as amended).

Held:

(1) The penalty for such offence under section 229 A (1) of the Criminal Code Act (as amended) is imprisonment for a term not exceeding 25 years.

(2) The prisoner and the victim are boyfriend and girlfriend. The age gap between them is 3 years. Both consented to having sexual intercourse that day.

(3) The victim continued to communicate with the prisoner by handwritten notes and letters delivered by hand showing her love and continued affection for the prisoner whilst he was on remand at the Kerema Police Station Cells. The victim is the instigator of the love affairs between the prisoner and herself despite being a 13 year old girl at the time of commission of the offence.

(4) The imposition of maximum sentence is inappropriate in view of the victim’s willingness to engage in sexual intercourses with the prisoner.

(5) The sentence of 5 years is wholly suspended and the prisoner enters into recognisance without surety and placed on Good Behaviour Bond with condition to keep peace for 5 years.

Cases sited:
The State –v- Eddie Trosty (2004) N2681.
The State –v- Kemai Lumou (2004) N2684.
The State –v- Pennias Mokei (No.2) (2004) N2635.
The State –v- Peter Lare (2004) N2557.
The State –v- Soti Abusa [1998-89] PNGLR 170.

EVIDENCE

The State tendered into evidence the following documents:

• Statement of the father, Ben Bal dated 28th May, 2012.
• Statement of mother, Poni Bal dated 28th May, 2012.
• Statement of victim Felicity Bal dated 27^th August, 2012.
• Statement of Kaman Kiu dated 28^th May, 2012.
• Statement of Andrew Fageke dated 17^th May, 2012.
• Statement of accused’s mother, Wendy Saliau dated 29^th May,2012
• Statement of Robert Saliau dated 27^th May,2012
• Statement of Police investigator Michael Pakyei dated October, 2013.
• Record of interview- (Pidgin version and English translate) dated 23^rd October, 2013.
• Medical report dated 31^st, May, 2012.
• Extract of birth registry of victim, Felicity.
• Letter and hand written note of the victim to you while you are in custody in the police cell at Kerema.
• Photographs of damage done to the accused’s family home and bicycle.
• List of items damaged by the parents and relatives of the victim.
• Certificate of birth registry of accused.
  

Counsel:
D. Mark, for the State
B. Popeu, for the Defence

16 March, 2016

1. KOEGET, AJ: I perused these documents and note the admission by the prisoner in his record of interview with the police investigator and this is consistent with the statement of the victim supported by a medical report. So I confirm the guilty plea accordingly.
   

ISSUE

2. The only issue for this court to determine is, what is the appropriate sentence to be imposed on the prisoner.
   

LAW

“Section 229A: Sexual Penetration of a child.

(1) A person who engages in 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 is liable, subject to section 19 to be imprisoned for life”.

3. In this case, the prisoner is 16 years old and victim is 13 years. At the time of commission of this offence both had relationship as boyfriend and girlfriend and were consenting parties to act of sexual intercourse on Sunday 27^th of May, 2012.
   

ALLOCATUS

‘’Myself and the victim had a boy friend and girlfriend relationship. Both of us consented to having sex that day. We consented to having sex inside a neighbour’s house. We finished having sex when the guardian of the house came and found us inside. I encourage the victim to return to her parents. I was arrested by the police the next day and whilst in the police cell, the parents and relatives of the victim came and threatened to kill me in the cells on several instance.’’

SENTENCE

4. The State alleged that the prisoner has a prior conviction for the similar offence in October, 2013. I perused the previous count file and note late Justice Sao Gabi convicted the prisoner of committing similar offence on the same victim and sentenced him to be imprisoned for a period of five years in hard labour wholly suspended on condition he enters into recognisance and be on Good Behaviour Bond for a period of three years. Bail was ordered to be refunded to the prisoner. The Good Behaviour Bond period lapses on 21^st October, 2016.
   
5. The history of the two cases is that the first offence for which the prisoner was convicted by the National Court at Kerema was committed on 27^th January, 2012. The second offence (this case)’ was committed on 27^th May 2012. The committal process in regard to the first case was completed in 2013, but the committal process in regard of the second case was completed on 16^th July 2014. The delay in the completion of the committal process in the committal court in Kerema was caused by the police prosecutor and this in my view was done at the convenience of the police. If committal hearings were completed in 2013 and the prisoner was committed to stand trial in the National Court, no doubt, the trial judge would have determined the prisoner’s cases in 2013 sittings of the National Court in Kerema.
   
6. However, the committal process in the second case was completed in 2014 after conviction on the first case. The delay in the committal process of the second case was caused by the police investigation officer for reasons only known to him. So in this case the prisoner is treated as first time offender.
   

PERSONAL PARTICULARS

7. The prisoner is 16 years of age and is a bachelor. He resides with his parents in Kerema town. His parents are public servants and are employed at the Kerema General Hospital.
   
8. The prisoner completed grade 11 at PIMS, a learning institution in Port Moresby. He co-operated well with the police and has pleaded guilty to the charge resulting in saving valuable time of this court.
   

MITIGATING FACTORS

9. I perused the committal depositions, notes and letters sent to the prisoner by the victim whilst he was on remand in Kerema police station cells; in my view such notes only demonstrate the victim’s love for the prisoner and her desire to be in his company. She is a person that can engage in such activities easily; even she is young aged 13 years old. So the prisoner is not to be entirely blamed for all what has happened between himself and the victim. The victim too must share some of the blame worthy for the incident on 27^th May, 2012.
   

ORDER

10. The order of the court is that the prisoner is convicted and sentenced to be imprisoned for a period of five years in hard labour. The pre-trial custodial period of one month is deducted and the balance of four years and eleven months is wholly suspended on condition that he enters into recognisance and be on Good Behaviour Bond for four years and eleven months. The suspension of the sentence and placing the prisoner on good behaviour bond for a fix period of time is pursuant to section 19 (1) (d) (i) of the Criminal Code Act chapter 262.
    
11. Should the prisoner breach the condition, he will be brought back to court to be dealt with for the period of the suspended sentence.

_______________________________________________________________
Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Accused