State v Tamti [1999] PGNC 74; N1878 (30 August 1999)

Unreported National Court Decisions

N1878

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 966/98

CR 967/98
THE STATE
-V-
ARTHUR MARADI TAMTI

Kokopo

Jalina J
18 August 1999
30 August 1999

CRIMINAL LAW - Incest - Between father and daughter - non-consensual incest as force was used in form of threat with knife - birth of child also an aggravating factor - Sentence - stiff sentence appropriate as deterrence.

Cases Cited

Mitige Neheye -v- The State [1994] PNGLR 71

Grayson Andowa -v- The State SC 576

The State -v- John Elei - Unreported National Court Decision

The State -v- Pikah Ndrohas - Unreported National Court Decision

The State -v- Francis Liro - Unreported National Court Decision

The State -v- David Daniel and Polin Deniel - Unreported National Court Decision

Counsel

Mr. L Rangan for the State

Mr. J. Kaumi for the Prisoner

SENTENCE

30 August 1999

JALINA J: You have pleaded guilty to committing incest with your real daughter on dates unknown between 1993 and May 1998 at Talakua Village in the Central Community Government area of the East New Britain Province.

Evidence shows that you started having sexual intercourse with your daughter in 1993. She fled to Lae and stayed with her aunt but you brought her back after the 1994 volcanic eruption and continued to have sex with her until it was discovered in 1998 when she became pregnant. Medical report dated 26 May 1998 shows that your daughter was 5 months pregnant at time of examination which means that she must have given birth in September or early October 1998. She was scared to tell anyone because you threatened to kill her with a bushknife from time to time.

You have denied paternity of the child but since her relationship with Tiunga from Raim Village was in 1997 as is clear from the evidence of Michael Neai, and that your daughter missed her monthly period after having sex with you in January 1998 I consider that the child is yours.

This offence carries a penalty of life imprisonment under s. 223 (1)(a) of the Criminal Code Act subject to the Court’s discretion to impose a lesser sentence under s. 19.

I have said on many occasions previously when dealing with incest cases that an act of incest cuts across the sacred trust that exist between father and daughter, mother and son and brother and sister. Sometimes an act of incest leads to divisions between family members when they take sides between the offending parties. It was with the intention no doubt of safeguarding the family unit that Parliament prescribed a very high penalty of life imprisonment which I have alluded to above. The serious nature of the offence of incest was emphasised by the Supreme Court in Mitige Neheye -v- The State [1994] PNGLR 71 where it upheld the trial judge’s sentence of 7 years for incest by a father with a 15 year old daughter. The Supreme Court also upheld the trial judge’s view that incest committed without consent or by force amounts to rape and that it would be valid to apply the sentencing tariff for rape in such situations.

In stressing the need to prevent the commission of this offence because offenders often repeat the acts of incest if not discovered quickly, the Supreme Court in Grayson Andowa -v- The State an unreported Supreme Court Decision SC 576 of 1 October 1998 said:

“One feature of many of these incest cases is that once a man has committed an act of incest against a daughter or sister he often repeats. This highlights the importance of stopping these incest acts as soon as discovered because they try to repeat and suggest that two counts can be as serious as many because if not stopped they lead to many”.

This year alone I have dealt with a number of incest cases. In the State -v- John Elei in Manus in April this year, I sentenced the prisoner who forced his sister to commit incest with him to 6 years imprisonment in hard labour. In the State -v- Pikah Ndrohas which I also heard in Manus in April this year, I sentenced the prisoner who consensually committed incest with his sister and who had a prior conviction for incest with the same sister to 7 years imprisonment in hard labour.

In The State -v- Francis Liro in Kavieng in May, I sentenced the prisoner to a total of 13 years imprisonment for incest with two separate daughters.

In the State -v- David Daniel and Polin Daniel which I dealt with earlier this month here in Kokopo, it was consentual incest between mother and son. In that case I sentenced the son to 8 years imprisonment and the mother to 2 years and 6 months imprisonment. I would have given them 8 years each if not for Parliament prescribing different penalties namely life imprisonment for male offenders and 3 years for female offenders.

In all the above incest cases that I dealt with this year, by the grace of God, the victims did not become pregnant. But they demonstrate that incest is becoming prevalent and must be stamped out through imposition of stiff penalties.

Your case, Mr. Tamti, is aggravated by the fact that you used a bushknife to threaten the victim to submit to your sexual demands. There is a further aggravating factor of your daughter having given birth to a child. That child no doubt would be a confused child. It will be at a dilemma whether to call you grandfather or father. It also would no doubt be subjected to ridicule from other children when it grows up.

In all the circumstances of this case taking into account your plea of guilty; your expression of remorse, your lack of prior convictions but bearing in mind the aggravating factors I have alluded to above as well as the need for deterrence, I consider a sentence of 8 years imprisonment in hard labour to be appropriate which I so impose. I deduct from that sentence the 9 months and 2 weeks you have spent in custody which leaves 7 years 2 months and 2 weeks in hard labour.

Since you were arrested on a bench warrant following your failure to appear in court from bail, I order that your bail money be forfeited to the State.

Lawyer for the State: Public Prosecutor

Lawyer for the Prisoner: Public Solicitor