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State v John [2017] PGNC 154; N6818 (27 April 2017)

N6818

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 539 OF 2017

THE STATE

V

JASON JOHN

Kiunga:Koeget,
2017 :21^st, 26^th & 27^th April.

CRIMINAL LAW- Sentence – Guilty - plea to sexual Penetration under section 229A(1)(2) of the Criminal Code Act (as amended) – sentence to be imprisoned for a fixed period of time – no orders for suspension of sentence.

FACTS:

On 1^st of November 2016, at about 3:30pm in the afternoon, the victim was walking home from school when the accused meet up with him along the road.

The accused approached the victim and told him that he knew the victim’s mother and other relatives. They talked briefly and the victim left to go home.

The accused tried to entice the victim when he told the victim that he had four bicycles and he will give him one should he follow him to the house but the victim rejected the invitation. The accused became angry and threaten the victim with a bush knife. He took the victim to a secluded place, told the victim to remove his shorts and told him to sit on his erected penis.

The victim was frightened and he did what the accused told him to do.

When the accused finish having sex with the victim, he threaten the victim and told him not to tell anyone about the incident and told him to return to his house.

The victim walked and along the route to the house met his uncle and told him about what the accused did to him that afternoon. The incident was reported to the police and on 9^th of November 2016, the accused surrendered to the police.

Cases Cited:

The State –v- Charles Rome (CR No. 502 of 2007)
The State –v- Neil (2012) N4664
The State –v- Jonathan Gabriel (2014) N5576

Counsel:

Ms T. Aihi, for the State.
G. Tine, for the Accused.

27^th April, 2017

1. KOEGET AJ. INTRODUCTION: The accused is charged with one count of Sexual Penetration of male child under the age of twelve years. The victim was then a ten year old boy when the accused inserted his penis into his anus. So the charge is brought under section 229A (1) and (2) of the Criminal Code Act chapter 262.
   

ARRAIGNMENT:

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

ISSUE:

3. The issue in this case is what is the appropriate sentence to be imposed upon the prisoner.
   

LAW:

4. The law in relation to sexual penetration of a child is stated in these terms:
   

Provision 2A – Sexual offences against Children.

“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.
(2) if the child is under the age of 12, an offender under sub section (1) is guilty of a crime and is liable, subject to section 19, to imprisonment for life.

Penalty: subject to sub sections (2) and (3), imprisonment for a term not exceeding 25 years.”

ALLOCATUS:

5. The following is what the accused said in his allocatus:
   

“I am from a poor family. My father deserted myself and mother 17 years ago. I reside with my mother in Tabubil. I am a student attending Adult Matriculation course in Tabubil.I apologise to the victim and family, my mother for causing embarrassment. I know I breach the law of the country.”

PERSONAL PARTICULARS:

6. The prisoner is 21 years of age and is a bachelor. He is from Lum village in Oksapmin District, Telefomin in the Sandaun Province.
   
7. He attended Tabubil Primary school and completed Grade 8 in 2010. He proceeded to Tabubil Secondary school and completed Grade 9 in 2011.
   
8. He returned to live as a subsistence gardener. He resides in Tabubil with his mother and is supported by the mother in his daily life.
   

AGGRAVATING FACTORS:

9. The accused is older than the victim and the age difference between them is ten (10) years.
   
10. The accused threaten to harm the victim with a bush knife so the victim succumb to the threat of the prisoner and engaged in sexual intercourse with the accused.
    
11. The victim is traumatised and he will live in shame for the rest of his life. The victim suffered discomfort for few days and he has fully recovered.
    

MITIGATING FACTORS:

12. The accused is remorseful and has offered to the victim the sum of K5,000.00 but was rejected by the victim and his family.
    
13. He cooperated well with the police and has pleaded guilty to the charge so this has saved valuable time of the Court. He is a youthful first time offender.
    
14. The prisoner has been in custody for 6 months, 3 weeks and a day awaiting disposal of his case.
    
15. Both Counsels submitted that the Court’s have previously decided similar cases and imposed sentences on such offenders ranging from nine years to twenty years.
    

SENTENCE:

16. The Probation report presented to the Court in part states that the prisoner takes drug such as marijuana and that in his opinion, the prisoner is not a suitable candidate for probation.
    
17. The maximum sentence for such offence is life imprisonment. In this case I do not intend to impose the maximum sentence on the prisoner. The prisoner threatened to harm the victim should he reports the matter to his parents or to the police so he is living in fear of the prisoner. This factor makes the case serious so the prisoner is to be imprisoned for a lesser period so he can reform in jail.
    
18. So the prisoner is sentenced to be imprisoned for a period of 13 years in hard labour. The pre-trial custodial period of 6 months, 3 weeks and 1 day are deducted and the balance of 12 years 5 months 6 days are to be served at Ningerum Corrective Institution Services
    

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