State v Audada [2003] PGNC 56; N2454 (13 May 2003)

N2454

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIR No. 157 of 2003

THE STATE

- v -

AMOS AUDADA

ALOTAU: GAVARA-NANU, J
2003: 07th, 13th May,

CRIMINAL LAW - Sentence – Incest – Plea of guilty – Seriousness of the offence has to be equated with other serious offences carrying maximum penalty of life imprisonment – Breach of trust by the offender – Sentence must reflect the seriousness and the gravity of the offence.

Cases Cited:
The State -v- MKB [1976] PNGLR 197
The State -v- Mitige Neheya [1988-89] PNGLR 174

Counsel:
C. Sambua for the State
S. Maliaki for the Prisoner

GAVARA-NANU, J: The accused pleaded guilty to having carnal knowledge of one Sineina Amos who was his natural daughter on 07th May, 2002, contrary to s. 223 of the Criminal Code Act, Chapter No. 262.The maximum penalty for this crime is imprisonment for life.

Facts

The facts are that, on 07th May, 2002, the accused was alone in his house cooking bananas and listening to music from his cassette player. He was living with another woman at that time, because he had separated from his first wife who is the victim’s mother. The victim was living with her mother in another village but some time before the incident, the accused asked for her to go and spend sometime with him, so she went to the accused’s village and was living with her paternal uncle.

On the day of the incident, the victim went to the accused’s house to ask the accused if he had any dirty clothes for washing. Some time after being inside the house, she asked the accused for his cassette player to play her tapes on gospel music. After the accused gave the cassette player to her, the victim went to the verandah of the house and was playing her tapes and was sitting and listening to the gospel music. The victim noticed earlier that the accused had been walking in and out of the kitchen, then suddenly, the accused went to the victim and pulled her into the house, removed her clothes and had sexual intercourse with her.

A nephew of the accused who was sitting in his own house which was close-by, noticed what the accused did so, he went over to the accused’s house to see what was happening. When he looked through the window, he saw the accused lying on top of the victim. When the accused noticed his nephew, he got off the victim and went away.

In the statement she made to the police, the victim said, she tried to push the accused away but he was too strong so she could not. She said she was crying and was very upset over the incident. She later went and reported the matter to her uncle and the Village Peace Officer, who later reported the matter to the police. The accused was later arrested by the police.

The victim said the accused was living with his third wife at that time, because after her mother left him, he married another woman, but that woman also left him so he married the third woman.

Reasons for decision.

The accused did not admit the crime in his record of interview. But the record of interview indicates that the accused did voluntarily confess the crime to the police before the record of interview was conducted. So in that sense, his co-operation with the police was not really forthcoming.

He has nonetheless pleaded guilty before this Court and that must be taken into account on sentence because that has saved the State from incurring further expenses in having the case tried. It also saved the victim from the embarrassment of having to give evidence.

The accused is said to be 35 years old. He has been a villager all his life, except for the brief period when he was employed as a driver.

Incest is a very serious crime as reflected by the maximum penalty it carries. The reason why the law treats this crime with such seriousness is because it involves breach of trust by the offender. It is also a serious violation of the sacred relationship between the two members of the family, more particularly by the offender, where the victim is not a consenting party. And even if the crime is committed with the consent of the victim, the act itself is a serious violation of the sanctity of a family life and must be condemned with an imposition of a most severe punishment possible on the offender.

The crime of incest must be viewed in the same way as any other crime that carries the same maximum penalty of life imprisonment, in terms of its gravity. For instance, rape, murder, manslaughter, armed robbery and so on.

Those who commit the crime of incest in my view lack human decency and moral values. The crime of incest is indeed abhorrent and repugnant to the customary and traditional values throughout Papua New Guinea. Thus such abhorrence must be reflected in the punishments imposed on the offenders by the Courts. These sentiments were expressed by Kearney J. (as he then was) in The State -v- MKB [1976] PNGLR 197. I agree entirely with his Honour in the observations he made in that case.

I note that in that case, his Honour imposed the sentence of 10 months in hard labour, but that was because there were special mitigating factors, such as the age of the offender and the victim did consent to sexual intercourse. His Honour at page 198 expressed this in this way:

"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 the attitude of the daughter, call for a reduction in the punishment below the normal."(my underlining).

See also the State -v- Mitige Neheya [1988-89] PNGLR 174.

The crime of incest is viewed even more seriously when the victim is forced into incestuous act, as was the case here. Here, the accused had no excuse at all for turning to his daughter for his sexual gratification because he was married.

There is no doubt in my mind that the shame, the psychological and the emotional traumas and scars as well as the embarrassment the victim suffered and will suffer are great and will last for the rest of her life.

The victim had every right to go and see the accused in his house as her father. Indeed the house was her house as well. She showed her affection to the accused as her father by going to the house to see if he had any laundry to be done. That is normal. Any good and loving daughter would do that. And I have no doubt that the victim had asked the accused to use his cassette player to play her gospel music in that same spirit. He of course was having different ideas about her.

Only animals lust after their children or sisters and brothers and vice versa. They do that because they do not have moral values and dignity as human beings. The Parliament has passed the relevant laws to ensure that such human values and dignity are protected and those who violate them will suffer severe punishments by the Courts.

In that regard, the conduct of the accused in lusting after his own daughter and grabbing her and forcefully having sex with her can only be described as animalistic. My use of the word ‘animalistic’ is not an emotional outburst. It is deliberate, and that to me is the only fitting description I can give to the accused who had exhibited such lascivious passion for his own daughter.

The victim was aged 19 at the time of the incident so she was almost half his age. As I said, although she did not consent to the crime, she will inevitably bear the embarrassment of being carnally known by her own father for the rest of her life.

The accused may even have destroyed the victim’s chances of ever marrying, but if she does, it will never erase this most unfortunate incident from her mind.

The crime of incest is very prevalent throughout Papua New Guinea. For that reason, this Court must send a strong message to the public through stiffer penalties that it takes a very serious view of it. The penalty prescribed by law for this crime is also the clear reflection of how serious the Parliament views the crime.

Thus, in the circumstances, I consider 10 years in hard labour to be the appropriate punishment for the accused. I therefore sentence the accused to 10 years in hard labour. I will deduct the time spent in custody, which is 1 year. The balance is 9 years. He will therefore serve 9 years in hard labour.
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Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Public Solicitor