State v Keimou [2001] PGNC 10; N2295 (12 October 2001)

N2295

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 430 of 1999

THE STATE

-V-

JAMES DONALD KEIMOU

ALOTAU: KANDAKASI, J.
2001: 10th & 12th October

CRIMINAL LAW – PRACTICE & PROCEDURE – Sexual offences - Past sentences not deterring – Offences on the increase – Need for stiffer penalties – Sentencing discretion under s. 19 of the Criminal Code – No expressed statutory prohibition against "quantum leaps" or "disparity of sentences between co-accused" – Calls for review of sentences repeatedly made with a view to increasing sentence but no substantial increase made – A sentencing judge should be at liberty to impose sentences he or she considers appropriate in the particular circumstances of a case even if it is a quantum leap – Criminal Code s. 19

CRIMINAL LAW – Incest by male – Natural father having continuous sexual relations with two of his natural daughters over a period of years – Victims falling pregnant with the eldest twice and both giving birth to a total of three children – Worse type of incest by man – Guilty plea – No good mitigating factors – No genuine expression or show of remorse – Life imprisonment imposed – Criminal Code s. 223.

Cases cited:

The State v. Mitige Neheya [1988-89] PNGLR 174

The State v. Arthur Tamti (unreported judgement 30/08/99) N1878

Grayson Andowa v. The State (unreported judgement (01/10/98) SC576

The State v. Eddie Peter (unreported and unnumbered judgement delivered 12/10/01)

Counsel:

K. Popeu for the State
D. Kari for the Accused

12th October, 2001

DECISION ON SENTENCE

KANDAKASI, J: You pleaded guilty to two separate counts of incest against your first and second natural daughters contrary to s. 223 of the Criminal Code ("the Code") from 1991 to 1996 with the second daughter and from 1993 to 1997 with the first born daughter.

The facts are straightforward. Your are the natural father of the two daughters, who I will just identify as first born and second born respectively to avoid causing further shame and harm. You started having sexual intercourse with your second born in 1991 when she was in grade 6, while your sexual relations with the first born started in January 1993, when she was home on school holidays.

According to the evidence of the first born, you first had sexual intercourse with her by tricking her. You told her, there was an evil spirit following her and that if you were allowed to have sexual intercourse with her, the evil spirits will run away and will not follow her. So she allowed you to have sex with her. At that time, she was in grade 7. Then in 1993, when she came home after having completed grade 10, you again came up with the same story and continued to have sexual intercourse with her on many occasions sometimes in the house sometimes during day times and other times in the night. You also had sexual intercourse with her in the bushes, the beach and rivers. You convinced her that she would not become pregnant as you claimed you were sterile. Unfortunately, she became pregnant and gave birth to a female child. That did not stop you, you continued in your sexual relations with your first daughter and that result in another child this time a boy being given birth to.

At the same time unbeknown to each other, that is the sisters (your daughters or the victims), you continued to have sexual relations with the second born and that resulted in her pregnancy and the eventual birth of a male child. Both your daughters were too scared of you and were not able to report what you did to them to your wife and their mother or anybody else even when they became pregnant and gave birth to their respective children.

In your record of interview with the police, you tried to put the blame on your wife, for saying these daughters were not yours due to problems between you and your wife. But you failed to disclose what those problems were. You also claimed that you asked your daughters to have sex with you and they agreed. This could only be right given your tricks of evil spirit and the daughters being small and vulnerable when you first started it off. These are not one or two isolate incidents. They went on for a number of years.

The girls now have no boyfriend and therefore have no chance of marrying anyone who is prepared to take them with the babies you gave them. Their future as female humans with a right to live free and ordinary lives have been greatly jeopardized for them by the very person of all people that should be encouraging and supporting them in that regard.

What you did was against the law, your daughters, and your family, your community and country. The law prohibiting what you did is set out in section 223 of the Code. That section reads:

223. Incest by man.

(1) A person who carnally knows a woman or girl who is, to his knowledge—

(a) his daughter or other lineal descendant; or

(b) his sister; or

(c) his mother,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

...

(3) It is immaterial that the carnal knowledge was had, or that the attempt was made, with the consent of the woman or girl.

This section clearly prohibits a man from have sexual intercourse with a person he knows to be his daughter, sister or mother or any other lineal descendant. It does not matter if the victim is a willing participant; incest is an offence even between willing participants. The main reason for this prohibition, apart form the scientific reasons, is to maintain the security, love, respect, honour, trust, happiness, peace and joy of the family unit and blood relations for a better and stronger family, community and a nation. As your lawyer submitted, the case of The State v. Mitige Neheya [1988-89] PNGLR 174, suggests the following guidelines (from the head notes) for sentences for this offence:

"(1) Because the offence involves unlawful sexual intercourse, a maximum term of life imprisonment and consent is immaterial, the principles of sentencing for the offence of rape should be applied.

John Aubuku v The State [1987] PNGLR 267, considered.
(2)

(a) On a plea of not guilty where the accused is a mature person and there are no aggravating or mitigating circumstances, a sentence of five years should be taken as the starting point;

(b) The sentence may be increased for aggravating circumstances such as: physical or psychological damage to the victim; resulting pregnancy and infection of the victim with sexually transmitted diseases;

(c) The lower range of sentences should be reserved for young offenders where there is little disparity in ages or for consensual acts involving adults."

I accept these guidelines in principle as being appropriate for incest cases except for the level of years or terms of imprisonment suggested. This offence is one of the serious sexual offences prescribed in the Code. Parliament having considered all things prescribed a maximum of life imprisonment. However, over the years the courts in the exercise of the discretion vested in them by section 19 also of the Code have been imposing sentences far short of life imprisonment. In my view, this has partly contributed to the never-ending increase in this kind of offences. My brother Justice Jalina acknowledged and commented on this in The State v. Arthur Tamti (unreported judgement 30/08/99) N1878. This is what he said:

"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.
(Emphasis added)

The Supreme Court has accepted the guidelines and principles enunciated in The State v. Mitige Neheya (supra) case and has been readily upholding sentences of 7 years or sentences similar to those given in rape cases. A recent demonstration of that is the case of Grayson Andowa v. The State (unreported judgement (01/10/98) SC576. In that case the appellant committed incest against his 13 years old daughter twice but was reported and eventually arrested when he attempted to have sexual intercourse with his daughter the third time. He used a knife on each occasion to threaten and secure the surrender of the daughter to his demands. The National Court imposed a term of 7 years on a guilty plea. In its judgement the Supreme Court said:

"The trial judge in his reasons on sentence did highlight the seriousness of the crime in the Criminal Code by virtue of the fact that the maximum penalty is similar to that for rape namely life imprisonment. He also emphasised the gross betrayal of the trust between a father and daughter and that the prime duty of a father is to protect a daughter and not to defile her. The trial judge noted that there has been agitation around the country by people over such sexual crimes against women and girls. And he stated that he would be failing in his duty if he did not properly deal with such criminal behaviour by fathers against their daughters

Whilst 7 years is at the top end of the range of sentences actually handed down for rape in recent years it is by no means unusual or a dramatic increase from the normal range. We refer to the principles enunciated in Mitige Neheye v The State [1994] PNGLR 71 which emphasised the serious nature of the offence and that an act of incest committed without consent or by force amounts to rape and it is valid to apply the tariff for rape in such cases. That case confirmed a sentence of 7 years for a number of counts of incest by a father against a 15 year old daughter.

The Supreme Court also this year confirmed a sentence of 7 years for a number of counts of incest admittedly in a different situation namely between a brother and sister in a consensual situation. This was the case Dadabu Dabu v The State SCR26/97 heard in June 1998.

One feature from many of these incest cases is that once a man has committed one act of incest against a daughter or sister he often repeats. In the above mentioned cases there were repeated acts, and in the case before us now there are two counts and the evidence is that the appellant was wanting to do it again. This highlights the importance of stopping these incest acts as soon as discovered because they tend to repeat and suggests that two counts can be as serious as many because if not stopped they do lead to many."

Emphasis supplied.

Whilst I accept that incest is rape for the purposes of sentencing as is been portrayed by the above cases, there is one important distinction that must clearly be stated. Rapes are normally committed by people who are not necessarily closely related to the victims. Incest however, is an offence that involves close and blood relations. To the extent that the very act of committing incest is a betrayal of trust, love (not in the sexual sense), a sense of security of the family unit and ultimately the least expected between normal close blood relations, it is very serious. In my view therefore, incest is far worse than an act of rape by an offender against a stranger or not related in any meaningful way if not blood. As Brunton, AJ said in The State v. Mitige Neheya (supra):

"An incestuous act with a child is a circumstance of aggravation of the most severe kind. It is a gross betrayal of the most sacred relationship of father and daughter. When young girls are the victims, it is difficult to imagine that the girls will not be scarred emotionally, perhaps for life."

As I already said, it no doubt destroys the security of the home and leaves forever lifetime scares for the victim and a bad stigma for him or herself and his or her family and relations. Love gets replaced with hate and trust with distrust. Insecurity replaces security and fear replaces confidence in the family unit and the immediate community. Happiness, peace and joy are replaced with shame, ridicule and unhappiness in the family unit and in the wider community. If the victims get infected with sexually transmitted disease, his or her health is replaced with sickness and poor and an unhealthy life. If pregnancies occur it results in unwanted pregnancies and unwanted children not properly welcomed into a proper and normal family setting. These in themselves are serious aggravating factors. If one or more of this exist apart from the threat of or use of force they place incest in the worse type of sexual offences although some of these factors might exist or arise in a rape case. But in a rape case, the victim’s family might be there to support the victim whereas the family unit in an incest case might not be there. As Brunton AJ said in The State v. Mitige Neheya (supra) case, in either case of rape and incest especially if pregnancy occurs and a child is born:

"the damage to the psychological well-being of the girl victim is well established. Even if a child is born healthy, the social stigma of its origin, or even the subjective knowledge of its origin, is likely to be a heavy burden for it to bear in life."

In the case before Brunton AJ, the offender was an old man of about 50 years. He was indicted on four separate counts of incest of his 15 years old high school daughter. The victim became pregnant and gave birth to a baby boy but died four months later. Before sentencing His Honour noted that:

"The prisoner is getting to be an old man, he is 50 years old or perhaps older. Judges do not like sending old men to gaol for long periods because of the inhumanity of the likelihood of an old person dying in gaol. Here I weigh the social value of that likelihood against the social need to stamp this crime with society’s condemnation and deter others. In my view the rights of children are superior to the rights of those people who are older and should know better. The prime duty is to protect the young. Previously incest has been a hidden crime, but with more public awareness and increased public concern, incest, particularly involving the father-daughter relationship, is now known to be far more widespread and devastating than was thought in the past. These offences on young girls are seen as part of a larger total oppressiveness that pervades the lives of women. The disadvantages of women in Papua New Guinea society are plain to see. They do not occupy positions of power within the modern sector and they bear much of the labour that is required to produce food in the traditional sector. The courts should deal with cases of incest, as with rape, clearly and decisively, so that there can be no doubt as to sentencing policy."

In your case you have had two separate incestuous relationships with both your first and second born daughters. The relationship existed repeatedly over a period of about 8 years side by side in the same household with one of them starting as early as 1991. These factor alone calls for in my view, a minimum sentence of 8 years multiplied by two. But that is not all, both of your daughters have become pregnant and they both have given birth to two and one child respectively. The children are surviving and are a constant reminder of you being the father of the children instead of being the grandfather. Your daughters are now not able to have a normal live, have boyfriends get married and enjoy life as the girls of their age might be doing now. You have ruined their lives for good. They will be shunned and ridiculed upon.

There is no medical evidence before me on the medical condition of the three unfortunate children but it is common knowledge as noted by Brunton, AJ in Mitige (supra) case that children of close blood relationships do result in abnormalities. As the children grow up and try to live their lives they will be shunned and ridiculed upon. They will be ashamed to be told and or reminded of the fact that their natural grandfather is in fact their father. These I am sure will have untold adverse psychological and physical impacts upon your daughters and your three children from your daughters. There is nothing this Court or anybody can do to reverse all of that.

The emphasis in our country and the world today is on the rights of the young. There is a worldwide call for the protection of children’s rights and to fight at all fronts and at all costs the abuse of children. This follows on from an international acceptance that children are vulnerable. In our society, the need to protect our young girls and our female population is far higher than not because of the ever-increasing invasion of their person and privacy through serious crimes like rape, unlawful carnal knowledge and even incest as is demonstrated by your case.

Brunton, AJ in Mitige’s case imposed a term of 7 years in the hope that that will deter people like you from committing the kind of offences you committed. The same was the case in the other cases cited above. Both the Supreme and the National Courts have emphasised the seriousness of this offence and impacts on the victims time and time again. Calls for stiffer penalties have been repeatedly made as in The State v. Arthur Tamti (supra). As noted above the highest penalty appear to be 13 years now. These sentences were in cases of a father or a brother or daughters, sisters or mother committing incest with only one victim. In most cases, they were consensual and in other cases involved the threat of or use of force. In some cases pregnancies have occurred with children being born but not subsequently surviving to face the shame and ridicule. Most if not all of the incest cases have not been repeated over a period of years as in this case. For reasons already given above, I find your case to be the worse kind of incest so far.

For the protection of the victims of your crime and the unfortunate products of that, I consider it more appropriate that you need to be locked away for good. If I imposed a term of years as was done in the cases cited despite the seriousness of the offence of incest, the risk of you returning and reminding your victims of what you did to them and cause them to further suffer both psychologically and socially are there. This risk is more real than not because I note in your allocutus you did not show any remorse whatsoever. All you asked for was for this Court to have mercy on you without expressing any regret and giving any undertaking to desist from committing this kind of offences. Indeed, as the Supreme Court noted in Grayson Andowa v. The State (supra) people like you who commit acts of incest have the tendency to repeat them. You clearly demonstrate that, and provided this court with nothing to show that you will not repeat it.

Calls for stiffer penalties have been long made in a bid to deter would be offenders like you. The sentences that have been imposed to date have not served their intended purpose of deterring the commission of these types of offences. As I said in the judgement I just handed down today in The State v. Eddie Peter (CR1446 of 1998):

"... the pronouncement of the various sentences in all of the cases to date, there has never been a decline in rape or sexual offence cases. In my view, the increase in such offences is in part, a reflection of the sentences imposed to date not serving their intended purpose of deterring other would be offenders. This therefore calls for a serious re-examination of the kind of sentences that have been imposed to date. The Supreme Court in Lawrence Hindemba v. The State (supra) did echo that need as noted in the above quotation. In my view however, the kind of sentences that have been imposed since even Lawrence Hindemba have not meaningfully reflected that need, which is evidenced by the growing number of rape and other sexually related offences.

Of the numbers of matters on this circuit list, sexual offence cases feature quite prominently, with a total of 21. This is reflective of the fact that although the Courts have indicated in the recent past that they were reviewing the sentences that have been imposed before them, there has been no meaningful sentencing reflective of that. My brother Justice Sevua did try to meaningfully review and impose a sentence much higher than those imposed before his judgement in Thomas Waim v. The State (supra) by imposing a sentence in total of 25 years. Unfortunately the Supreme Court struck it down to 18 years on the basis that the sentence imposed by the National Court was a ‘quantum leap’.

There is no expressed legislative prohibition against "quantum leaps". Parliament after having considered all things prescribed a maximum penalty of life imprisonment subject to section 19 of the Criminal Code. That provision does not even prescribe a minimum term of years or for that matter a range. It is the judges that have considered it appropriate to start as low as 5 years (see John Aubuku (supra)) and are yet to impose the maximum prescribed penalty. In the meantime this serious evil against society is on the increase. I consider it inappropriate that sentencing judges should be unnecessarily limited by concepts such as no "quantum leaps" or "disparity in sentencing of co-accused" or such other concepts that have no reflection of the particular circumstances of a case. They should instead be left to be guided by the main purposes of sentencing such as deterrence, rehabilitation and the rest to meet the society’s expectation of stiffer penalties to deter the recurrence of such unacceptable evils in our society."

Having regard to all of the above and the particular circumstances of this case and the failure of past sentences to deter would be offenders like you, I consider a sentence of life imprisonment appropriate. This is for the protection of the victims and the unwanted children you gave them. The negative reaction they will get from the society in which they are in will be inevitable. There is nothing this Court can do to stop that. If you were allowed to return to them, you will only aggravate their sufferings and pains. The sentence is also to send a message to people like you who are intent on committing serious crimes like incest that they now stand the risk of being severely dealt with by the Courts and the law in terms of imposing the maximum prescribe sentence of life imprisonment.

I do note that you are an old man and that the Court should be slow to sending people of your age to prison for a long time. I also note that you have pleaded guilty to the charges. It is within the discretion of the court to impose higher sentences even in guilty plea cases if the particular circumstances of the case warrant it. There can be a proper exercise of a sentencing judge’s duty if he or she weighs the interest of the society to be protected against offenders and an offender’s interest to be rehabilitated. As Brunton AJ did in The State v. Mitige Neheya (supra):

"Here I weigh the social value of that likelihood against the social need to stamp this crime with society’s condemnation and deter others. In my view the rights of children are superior to the rights of those people who are older and should know better. The prime duty is to protect the young. Previously incest has been a hidden crime, but with more public awareness and increased public concern, incest, particularly involving the father-daughter relationship, is now known to be far more widespread and devastating than was thought in the past. These offences on young girls are seen as part of a larger total oppressiveness that pervades the lives of women. The disadvantages of women in Papua New Guinea society are plain to see. They do not occupy positions of power within the modern sector and they bear much of the labour that is required to produce food in the traditional sector. The courts should deal with cases of incest, as with rape, clearly and decisively, so that there can be no doubt as to sentencing policy."

As I already said, there is nothing to show that you are likely to be rehabilitate and will not be a threat or risk to the victims and their respective children’s struggle for survival as best as they could in the bad environment you created for them without any good cause. The seriousness of the offences in the particular circumstances of your case and the need to impose a term that would deter other like minded persons for the protection of the very basis of our families and communities, outweigh any advantages your guilty plea may bring in terms of reducing your sentence to a term of years.

In the end result, I pronounce a sentence of life imprisonment on the two counts of incest contrary to section 223(1) of the Code to be served concurrently. I order that you serve your term in hard labour at the Giligili CIS.
________________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor