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State v Angelie [2016] PGNC 398; N6717 (21 July 2016)

N6717

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 741 OF 2016

THE STATE

V

ANDERSON ANGELIE

Tabubil : Koeget, AJ
2016 :12^th, 21^st July.

CRIMINAL LAW - Sentence – guilty plea to sexual penetration of girl under the age of 12 years under Section 229A(1) of the Criminal Code Act (as Amended) – wholly suspension of sentence – prisoner to enter into recognisance and be on Good Behaviour Bond with condition to keep peace – Exercise of Court’s discretionary powers under section 19(1)(d)(i) of Criminal Code Act.

Cases Cited:

The State –v- Chadrol Jessie [2011] PGNC 211, N4648 (23^rd May 2011)
The State –v- Emmanuel Saliau (2016) N6403
The State –v- Miha Maera (2016) N6409

Counsel:

D. Mark, for the State
W. Dickson, for the Accused

21^st July, 2016

1. KOEGET AJ: INTRODUCTION: The accused and the victim had boyfriend and girl friend relationship at the time of commission of offence. The accused was aged twenty years and was attending technical course at Tabubil whilst the victim was aged 13 years attending Tabubil primary school. She was in grade 6 at that time.
   
2. The accused knew that the victim was aged 13 years and was in grade 6 at Tabubil Primary school that year.
   

FACTS:

3. The accused was a boyfriend of the victim at the time of the commission of offence. The victim was attending Tabubil primary school and was in grade 6. She was just at the age of 13 years and she lived in Tabubil with parents as they were employed by OK Tedi Mine.
   
4. On the early hours of 31^st of January 2015, the accused invited the victim to come to his parent’s house in Tabubil town. The victim arrived at the accused’s parent’s house between 11 o’clock in the night and 12 mid night. Both proceeded into the laundry room and engaged in consensual sexual intercourse. The accused escorted the victim to her parent’s house after the intercourse.
   

ARRAIGNMENT:

5. The accused pleaded guilty to the charge and so he was convicted accordingly.
   

ISSUE:

6. The issue for the court to determine in this case is what is the appropriate sentence to impose upon the prisoner?
   

EVIDENCE:

7. The learned State Prosecutor tendered into evidence the committal depositions consisting the following documents:
   
   • Police information sheet charging the accused.
     
   • Police witnesses statements.
     
   • Copy of victim’s birth certificate.
     
   • Victim’s statement to Police.
     
   • Accused’s confessional statement.
     
8. The record of interview between the police investigator and the accused was rejected because the accused’s constitutional rights under section 42(2) were not administered at the time of interview and he was not cautioned at the commencement of the interview.
   

I perused these documents and the provisional plea was confirmed. So the accused was convicted accordingly.

LAW:

“Section 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.”

9. In this case the prisoner was 18 years of age and the victim aged 13 years 8 months so the age gap between them is 4 years and 4 months.
   

ALLOCATUS:

“I am sorry for what I did and I am a first time offender. I want to pay compensation to the victim.”

PERSONAL PARTICULARS:

10. The prisoner is now 20 years of age, but he was 18 years old when he committed the offence. He is a youthful first time offender.
    
11. He has 3 brothers and 2 sisters and he is the second born in the family. He is from Bolipi village in the Olsopip District, North Fly of the Western Province. The prisoner’s father is employed by Ok Tedi Mine, so he resides with family in accommodation provided by Ok Tedi Mine in Tabubil.
    

MITIGATING FACTORS:

12. The prisoner pleaded guilty to the charge and saved the court’s busy time.
    
13. He admitted the commission of the offence and cooperated well with the police during the investigation into allegations.

Both the prisoner and the victim consented to engage in the sexual intercourse. The age gap between the prisoner and the victim is 4 years 4 months. Although the victim was 13 years of age, she had other boyfriends and in this case willingly participated in the act of sexual intercourse. No weapon was used in the commission of this offence.

14. The prisoner attends Tabubil Training Centre to upgrade his marks to matriculation level.
    
15. The victim suffered no permanent injury as a result of the commission of the offence.
    
16. The victim and family departed for their home province long time ago and have not returned to Tabubil – They have not shown interest in assisting the State in the prosecution of this case.
    
17. The prisoner fortunately pleaded guilty to the charge so the court is able to dispose off the case and credit is accorded to the level of co-operation the prisoner gave in the disposal of the case.
    
18. The defence counsel referred the court to the following cases:
    

1. The State –v- Chadrol Jessie [2011] PGNC 211, N4648 (23^rd May 2011).
   

In that case the prisoner pleaded guilty to the charge of Sexual Penetration of a child pursuant to section 229A(1) of the Criminal Code Act. The prisoner in that case was 17 years of age and the victim was 13½ years old. Both consented to engage in sexual intercourse. The prisoner was sentenced to six years in hard labour. The sentence was wholly suspended and the prisoner was placed on probation for a fixed period of time.

2. The State –v- Emmanuel Saliau (N6403).
   

The prisoner pleaded guilty to the charge of Sexual Penetration under section 229A (1) of the Criminal Code Act (as amended). The prisoner was 16 years of age and the victim 13 years at the time of commission of the offence. This was the second time the prisoner was convicted of committing the offence on the same victim. He was sentenced to be imprisoned for 5 years in hard labour. The sentence was wholly suspended and prisoner placed on Good Behaviour Bond for 5 years.

100. The State –v- Miha Maera (N6409).
     

The prisoner pleaded guilty to the Sexual Penetration of a girl under the age of 13 years. He was sentenced to be imprisoned for five years in hard labour. The sentence of 5 years was wholly suspended upon the prisoner entering into recognisance and promised to keep peace and Good Behaviour Bond for five years.

In this case the prisoner willing assisted the police and assisted the court to dispose off this case at the time when the State witnesses did not show any interest in the disposal of the case when it was listed as a trial in Tabubil.

SENTENCE:

19. The prisoner is sentenced to be imprisoned for two years in hard labour. The pre-trial custodial period of one month and three weeks is deducted.
    

ORDERS:

(1) The balance of one year ten months and one week is wholly suspended on condition that the prisoner enters into recognisance, promise to keep peace and be on Good Behaviour Bond for one year ten months and one week.

(2) The bail of K1,000.00 is refunded to the prisoner.

ORDERED ACCORDINGLY.

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