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State v Navu [2016] PGNC 373; N6609 (22 August 2016)

N6609

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1041 OF 2016

THE STATE

V

JOHN NAVU

Kokopo: Lenalia, J.

2016: 19^th, 26^th,27^th July&
8^th, 11^th, 12^th& 22^ndAugust

CRIMINAL LAW – Sexual offence – Penile penetration of victim under the age of 12 years – Victim age 11 at time of offence – Plea of guilty – Matters for consideration – Sentence – criminal code (Sexual Offences and Crimes Against Children) Act 2002.s.229A (2)

CRIMINAL LAW – Sexual Penetration of child of under age of 12 years – Victim age 11 years – Prisoner age 65 years – No pattern of abuse – Substantial age difference – Offence committed with breach of trust and authority – Matters for consideration.

Cases cited:
The State v Kukubur Walia (17.3.09) CR.No.883 of 2006
The State v Paul Nelson(25.5.05) N2844
The State v Paul Wakara (2006) CR.No.914 of 2006
The State v Waira Nason Tomar (9.10.06) CR.No.534 of 2005
The State v Wesley Penias (13.3.2014) N5659

Counsels:

Mr. L. Rangan, for the State
Mr. J. M. Ainui, for the Accused

22^nd August, 2016

1. LENALIA J: The prisoner pleaded guilty to one count of sexual penetration of an under-aged girl under the age of 12 years. When the offence was committed on 22^nd March 2016, the complainant was age 11 years. This is offence under s.229A (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. This provision states:
   

“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 that 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.” (Emphasis added).

Facts in Brief

2. Undisputed facts in relation to this case are that on 22^nd March 2015 at Kadaulung village Inland Baining Local Level Government, the victim Sam Maristella (S. M.) was sent by her mother to collect betelnuts. She left their house and walked down to the creek. As she was walking up the creek, she met the offender. She tried to walk pass him, the prisoner grabbed her by her hands and threatened her that if she scream, he would kill her.
   
3. At that time the prisoner had a knife and a bag. He then pulled her into the bushes and the victim started to scream but he placed one of his hands over her mouth stopping her from calling out. He pulled her right far off from the road where he undressed her and he did the same to him. He forced her on to the ground then laid on top her and sexually penetrated her through her vagina.
   
4. She said in her statement dated 4^th April 2016 that, it was her first time to have sex and she felt great pain. After sexually penetrating her, he got dressed and told the victim not to tell anyone and if she did, he would kill her.
   

Addresses on Sentence

5. When the court asked the prisoner to say anything on his last say, he said, he is so sorry for what he did. He expressed remorse to the victim and her family. He asked to be placed on good behavior bond.
   
6. For the accused, Ms. Ainui submitted that the court should consider the following mitigations:
   
   • ➢ prisoner’s guilty plea,
   • ➢ he is a first time offender,
   • ➢ prisoner’s early admission to police when he was interviewed,
   • ➢ his expression of remorse to victim and her family.
     
7. Counsel asked the court to consider the antecedents of the offender and sentence him accordingly.
   
8. Mr. Rangan submitted the following aggravations:
   

-very big age difference,

-prisoner was 65 years old,

-victim was only 11 years,

-the two are related,

-there was breach of trust,

-and compensation should be ordered.

Mr. Rangan rightly argued that, this is one of those very serious cases due to the fact that the complainant was merely 11 years.

Pre-Sentence & Means Assessment Reports

9. The only community input on the pre-sentence report is from the wife of the offender Mrs. Jovita Mariau. She expressed concern about what the accused did and said, the accused being an elderly person should know what is good and bad and be a guide to young people in their community.
   
10. Despite this, Jovita commented that she will assist in whatever the court considers to be a penalty for the crime her husband committed and she gave undertaking that if compensation is ordered, she will assist in paying by cash or kind. The family has a pig which value is K800.00 and they also rely on the K600.00 bail in the trust fund.
    

Sentencing Trends

11. The maximum penalty for the offence sexual penetration of a child under the age of 12 years under s.229A (2)of the Criminal Code is subject to s.19 of the Criminal Code, imprisonment for life. Under s.19 of the Criminal Code this court has discretion to impose a penalty lower than life imprisonment.
    
12. I cite some cases to illustrate on the recent trends of penalties given on sexual penetration of underage girls. This is evident from the wording of s.229A (2)of Code that, this was the situation where the victim was 11 years less than 12 years prescribed by the above Subsection. The offender must understand that you could be sentenced to the maximum penalty of life imprisonment.
    
13. Before you are sentenced, Judges of this Court often say that, sexual intercourse with underage girls is very serious. That is why in a similar case as yours, in The State v Kukubur Walia (17.3.09) CR.No.883 of 2006, the prisoner pleaded guilty to two counts of sexual penetration of an underage girl, he was sentenced to 8 years for the first count and 6 years for the second count. Those sentences were ordered to be served concurrently. Five (5) years were suspended with conditions including compensation to be made by the parents of the offender. The above matter was a case in this Province as well as the following ones.
    
14. In The State v Waira Nason Tomar (9.10.06) CR.No.534 of 2005, the offender was charged for sexual penetration of the 14 year old victim. There were two acts of sexual intercourse. Four years were imposed for the first count and three years for the second. Sentences were ordered to be served consecutively. Then in The State v Paul Wakara (2006) CR.No.914 of 2006, it was a case where the offender was charged for one count of sexual penetration of a ten year old child. The offender forced the victim into sex. Though no injuries were found, he was sentenced to 10 years imprisonment.
    
15. In The State v Wesley Penias (13.3.2014) N5659 a case in Biala, the offender was charged for sexual penetration of a girl under the age of 12 years contrary to s.229A(2) of the Code, the offender was 17 years old. He was sentence to 4 years IHL. The sentence was fully suspended and the offender was placed on probation with condition that if he re-offended, he was to serve the whole suspended term.
    
16. In your case, John, the court will not sentence you to the maximum because first the law gives this court discretion to sentence you to a term of years and secondly you pleaded guilty and finally but not the least your lawyer has raised a number of mitigating circumstances for the court to consider and which the court has considered.
    
17. In this Province and elsewhere, sexual crimes are very common. It is a matter of concern because, most victims in sexual penetration cases seem to be very young children. This is the reason why the above law was made. The Criminal Code (Sexual Offences and Crimes Against Children) Act is aimed at protecting young children from sexual abuse and exploitation. The child that you prematurely defiled will live with the scar in her memory until she is old. Children are supposed to be cared for and look after by elderly people like the prisoner. What you did to the little victim will linger around her mind for as long as she lives. She is now traumatized by what you did to her. Like other children, they are entitled to the protection of law guaranteed by s.37 of the Constitution.
    
18. John, your case is aggravated by very serious aggravations. First the victim was under the age of 12 years at the time and date you abused her. She was 11 years at the time you sexually penetrated her. The government has recognized children’s rights by legislating to prevent abuse of children through the new amended provisions in the Criminal Code, the Welfare Act, the Lukautim Pikinini Act and other legislations on the welfare of children. There is also a volume of existing legislations on the welfare of children.
    
19. The next aggravation is there was a very big age gap between the prisoner and the victim. The victim was 11 years while the prisoner may be 65 years. There was a big age gap between the two of you. The difference in age was about 54 years. I consider the fact that, there may have been some injuries caused but according to the medical report, because the victim was examined some 72 hours from the date of the offence, no injuries were recorded except for the fact that, the victim was traumatized.
    
20. The message is clear that offences of this nature ought to be visited with substantial terms of imprisonment as a reflection of the seriousness of these types of offences. By reading of the terms of the 2002 Amended provisions of the Criminal Code, it is hoped that, with such stern measures in principles of sentencing, offenders or like on the instant case, the prisoner will no longer a threat to young victims.
    
21. Having considered all mitigations and the aggravations, I consider counsels submission on this very serious charge. I have considered the defence submission on the age of the accused. He is now 65 years old. I consider the fact that, the victim was traumatized. I am of the view that a deterrent sentence must be imposed. I consider a sentence of 8 years imprisonment should be appropriate. He is sentenced to 8 years. The court suspends 2 years from this sentence on following conditions:
    
    • You shall serve the balance of 6 years imprisonment IHL,
    • You shall pay an amount of K1, 000.00 and a life pig as compensation to the complainant and her parents, brothers and sisters.
    • K500.00 of order 2 shall be paid to the complainant.
    • The offender’s bail money is now converted into part payment of this order.
    • The time spent in custody be deducted from the 6 years and he shall serve the balance.
    • His bail money can be converted into part payment of the cash payment for compensation.
    • You are given three months to pay the compensation.
      

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Accused