State v MKB [1976] PGLawRp 618; [1976] PNGLR 197 (14 May 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 197 - The State v MKB 

[1976] PNGLR 197

N47

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

M.K.B.

Kieta

Kearney J

11 May 1976

14 May 1976

CRIMINAL LAW - Sentence - Incest - Rationale of offence - Mitigating factors personal to accused - Age of daughter, 17 years - Sentence of ten months imprisonment with hard labour - Criminal Code s. 226.

On a charge of incest under s. 226 of the Criminal Code 1975 alleging sexual intercourse with a daughter aged 16 or 17 years it appeared that the offence came to light only after the birth of a child, and it also appeared that there had been no lack of consent.

Held

Although substantial sentences are normally imposed for this offence, reflecting the moral beliefs and community abhorrence thereof, mitigating factors personal to the accused and the age and attitude of the daughter, required a reduction in punishment below the norm, and accordingly the accused should be sentenced to ten months imprisonment with hard labour, (with two months in custody pending trial to be taken into account).

Trial

This was a trial on a charge of incest under s. 226 of the Criminal Code Act 1975, to which the accused pleaded guilty.

Counsel

C Maino for the State

NH Pratt for the Accused

Cur. adv. vult.

11 May 1976

KEARNEY J:  The accused stands charged with the crime of incest in that in July of last year he had sexual intercourse with his daughter, aged 16 or 17 years. To this charge, having had the benefit of counsel’s advice, he ultimately pleaded guilty. The outcome of this illicit union was a baby girl, born in February this year, but unfortunately dying a month later. It was the fact there was an outcome of the union, that led to the act of incest coming to light this year, the accused being committed for trial in March. He has apparently been on bail in his own recognizance of K100 since that time.

He affirms strongly through his counsel that his daughter’s allegations of lack of consent to the incest, contained in the depositions, are untrue, and in the light of her age (approximately 17 years) and the circumstances, I am inclined to believe him.

There is but sketchy evidence of how the crime is regarded in his own community, but I consider that in the present day it is regarded with repugnance.

I find it very difficult to sentence this man. He will undoubtedly suffer within his family and community, punishment of a quality different to that which this Court can administer. In all the circumstances, taking into account the matters urged by Mr. Pratt, I consider an appropriate sentence is 12 months imprisonment with hard labour.

14 MAY 1976

The sentence of 12 months imprisonment with hard labour proceeded upon a wrong basis; the prisoner has already spent 2 months in custody. I therefore now vacate it, and substitute a sentence of 10 months imprisonment with hard labour.

I mentioned earlier the difficulty I found in sentencing. There is no doubt that the taboo against incest has obtained in many cultures and over the ages; it is regarded with a repugnance frequently extreme, and punished severely. Yet the rationale for its proscription by the criminal law is not entirely clear to me. Clearly, the law is concerned to see that the adolescent child is not regarded as an object for sex; but that is covered by other provisions of the Code — this offence is unnecessary for that purpose. The often-quoted eugenic reason — the deleterious effect of in-breeding — is I believe somewhat suspect. Probably the true rationale is the view that the criminal law exists to enforce moral beliefs. That is a large question, much debated, and one that no doubt will be considered by the Law Reform Commission at length, when it examines the criminal justice system with a view to determining what behaviour should be subject to the criminal law; but it is not my proper concern.

The moral belief and the abhorrence is a community fact, no doubt reinforced by Biblical teaching (e.g. Leviticus, Chapter 18). I note in passing that this offence did not form part of the modern criminal law of England until 1908, when the Church sponsored a Bill. Judging by the number of cases of father-daughter incest coming before the Courts, and considering that these represent probably only a small proportion of the actual number, the prevalence of this offence is higher than might have been thought.

Substantial sentences are normally imposed for this offence, reflecting no doubt the community attitude of horror; however, in this case it appears to me that mitigating factors personal to the prisoner, and the age and attitude of the daughter, call for a reduction in punishment below the norm.

Sentence of ten months imprisonment with hard labour.

Solicitor for the State: L. W. Roberts-Smith, State Prosecutor.

Solicitor for the accused: N. H. Pratt, Acting Public Solicitor.