State v Peril [2005] PGNC 85; N2883 (22 August 2005)

N2883

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
AT GOROKA

CR 1161 OF 2004

THE STATE v JOHN PERIL

AND:

CR 994 OF 2004

THE STATE v ERIKA M. LUCAS
(‘Prisoners’)

GOROKA	:	DAVANI, J
2005	:	12, 22 AUGUST

CRIMINAL LAW – Attempting to Pervert Course of Justice – plea – Criminal Code s. 136.

SENTENCE – Mother of four – sentenced – husband in prison – no substitute caregivers whilst parents incarcerated – children destitute – children’s interest, paramount – Child Welfare Act Chapter 276 ss. 13, 14 and 15.

SENTENCE – Plea - Attempting to Pervert Course of Justice – Court to exercise sentencing discretion – non-custodial – Criminal Code s. 19 (1) (f).

Counsel:

M. Ruarri, for the State

P.Kaluwin, for the Prisoners

DECISION

22nd August 2005

DAVANI, J: Both prisoners pleaded guilty to 1 count each of attempting to pervert the course of justice, charges laid under s. 136 of the Criminal Code Act (‘CCA’). This section reads;

"136. Attempting to pervert justice

...

A person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert or defeat the course of justice is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding two years".

Evidence and Law

The prisoner Erika is the mother of a 16-year-old female who was sexually molested by her father, the prisoner’s husband. He presently serves a 14-year jail sentence at Bihute for Incest. The evidence is that she sent the victim, her daughter, to Rabaul so she would not give evidence for the State, against her father. The child/prosecutrix was brought back and the prisoner Erika was told by the Police not to do that again. However, before the date of trial, she again, with the assistance of co-accused John Peril, attempted to send the child/prosecutrix to Lae. The evidence is that John Peril took the prosecutrix from the guardian’s house and had with him a bag containing her belongings. Prisoner Erika purchased beer and gave cash to a man and woman to take the prosecutrix to Lae. However, they were intercepted by the prosecutrix’s guardian.

On allocatus, John Peril said he did what he did because they were suffering financially whilst Erica’s husband was in jail on remand awaiting trial. Erica Lucas said she did what she did because her husband "ordered" her to do so. She apologized to the court and asked the court for its mercy.

Mr. Kaluwin, the prisoner’s counsel, submitted that John Peril was aged 17 when he committed the offence. He has been on remand for 1 year 1 month and 6 days (as at 12th August 2005). Prisoner Erika was on remand for 1 week and since then, has been on bail. She has 4 children, the prosecutrix/victim who is aged 16, and others aged 6, 3 and 1.

Mr. Kaluwin submitted that the mitigating factors outweigh the aggravating factors in that this is their first offence, they both pleaded guilty and that the prosecutrix eventually gave evidence resulting in her fathers conviction for a term of 14 years.

Mr. Kaluwin asked that both prisoners be sentenced to the rising of the court. Mr. Ruarri did not have any submissions on sentence, only re-emphasising that the maximum term of imprisonment is for a period of 2 years.

Both counsel did not assist with authorities or submissions on community work orders if such were to be made. I find that most unhelpful especially in this case where there are four young children who may be left on their own if their mother is jailed. I will expand further on this below.

To assist me in deciding on an appropriate sentence, I considered the case The State v Geyame Kiliki [1990] PNGLR 216. In this case, on 6 June 1990, His Honour the then Brunton, J dealt with the accused person, who had written a letter to a grade 5 magistrate telling her that "any court ruling will provoke a breach of peace in the congregation and will destroy Christian faith, justice and harmony with God’s people in Labu Butu Congregation".

The accused was convicted and discharged under s. 19 (1) (f) of the CCA, then entered into a recognizance of K500.00 without surety, for a period of two years, conditional upon his keeping the peace and being of good behaviour.

In this case, a mother with very young children has just been convicted. Her husband is serving time as well. What will become of her children if she is sentenced to serve time? It appears her lawyer did not consider this issue to be of any importance, hence the absence of submissions. I have been unable to locate authorities touching on this similar issue. If a court were to deal with an issue such as this, it would undoubtedly seek assistance from the Welfare Services. But it is common knowledge that the Social Welfare System in this country has neither the facilities nor the manpower, money and resources to care for such children. The Child Welfare Act Chapter 276 ‘CWA’ provides a very elaborate framework to care for such children i.e. Part III (ss. 13, 14 and 15) of that act applies to children who are declared ‘destitute’ or have insufficient means of support. In the event the Director of Child Welfare is advised that a child is destitute or neglected etc (Part VII ss. 36 to 47 of CWA) the Director has certain powers he can exercise to care for these children. However, this country’s social welfare system is under funded and successive governments have not given it the attention and focus it deserves, and that has been the trend since Independence. As a result, children whose parents are incarcerated in the jails and cells of this country are left in the care of extended families, who of course, after a while, are unable to care for these children because either their own financial resources are very meagre or they do not want to. The children are then thrown into the whirlpool that is the ‘uneducated unwanted youth’ and who are churned out ultimately, in a great majority of cases as criminals and prostitutes. We cannot hide behind the facade that all is well and that the extended family system works. It does not and our children are the victims of governments who see no urgency in revamping and focusing on their needs, considering they are this country’s future.

Having said that, I will not, in this case, throw these innocent children to a system that will not care for them, notwithstanding that their mother has committed a serious offence, one where she has attempted to protect her husband from the law. She has attempted to stop her child from giving evidence against her husband, who was charged for having had sexual intercourse with her. She did not say why she did that only saying that her husband ‘forced’ her to. However, her co-accused’s statement on allocatus demonstrates there to have been economical reasons that he did what he did because he could not care for the family on his own, in Erica’s husbands absence. So Erica’s reasons, apart for being forced, may have been economical or financial. We will never know.
I have not heard any evidence or submission on who will care for her children if she is imprisoned. Counsel for accused persons, when dealing with a case such as this, must always address this issue, preferably not by submissions from the bar table, but by the presentation of evidence from substitute care-givers, that they will care for the children whilst the both parents are serving time. In the absence of this material, I must make a decision, that is not only fair but that will also provide for the interests of these children.

In my view, although the prisoner Erika has committed an offence, the court must consider carefully whether it is one that warrants a term of imprisonment, to be balanced against the welfare and interests of the children which she will leave behind if she is to be imprisoned. In this case, if the prisoner is imprisoned, the children will be without a parent because the both parents will be serving time. I must be slow to exercising my powers to imprison in a case such as this.

Having carefully weighed these factors, I consider the children’s interests to be paramount and find that their interests, when weighed against the aggravating factors of this case, far outweigh those factors.

Sentence

In the absence of evidence on substitute caregivers and in the exercise of my sentencing discretion, I will, instead of passing sentence, discharge her under s. 19 (1) (f) of the CCA on her own recognizance of K200.00, without sureties. This recognizance must be paid within 14 days from today. She must also comply with the following other conditions;

1. That she shall ensure that the prosecutirx/victim is not taken anywhere near her husband whilst he is incarcerated and after;
   
2. That immediately prior to her husbands release from prison, that if the victim still resides with her, that she shall seek assistance from a female police officer, preferably from the Sexual Offences Squad, to reapply to a National Court Judge for directions as to the possible relocation of the victim;
   

3. That she shall be on good behaviour for a period of 2 years;

4. That this matter shall be returnable before a National Court Judge in Goroka on 8th September 2005 at 9.30 am and for the court to be appraised of the prisoners payment of recognizance of K200.00;
   
5. The K200.00 paid by the prisoner on 29th July 2004 as bail, shall be applied towards payment of the recognizance referred to in paragraph 4 hereof.
   

As for John Peril, I consider the period he served on remand of one (1) year, one (1) month, two (2) weeks and one (1) day (as at 19th August, 2005) to be sufficient punishment and will sentence him to the rising of the court.

_________________________________________________

Lawyer for the State : Public Prosecutor

Lawyer for the Prisoner : Public Solicitor