State v Towin [2006] PGNC 52; N3053 (13 April 2006)

N3053

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1076 OF 2002

THE STATE

-V-

TEWA KOLWIN TOWIN

KOKOPO: LENALIA, J.
2006: 11th & 13th April

CRIMINAL LAW – Incest – Guilty Plea – Matters for consideration – Sentence
– Criminal Code (Sexual Offences and Crimes Against Children) Act, s.223 (1).

Cases cited:
The State v David Kiaplaen Daniel & Pauline Warpin Daniel (1999) N1877
The State v Arthur Maradi (1999) N1878
The State v James Donald Keimou (2001) N2299
The State v Amos Audada (2003) N2464
The State v Eddie Sam (2004) N2521
The State v Adrian Hamos (2005) CR. NO. 701 of 2007
The State v Henry Tade (2004) CR.N0.1104 of 2004
The State v Francis Angosiven (2004) N2670
The State v Paul Tovonal (2004) CR. N0. 984 of 2003

Counsel:
L. Rangan, for the State
M. Peter, for the Accused

13th April, 2006

LENALIA, J: The prisoner pleaded guilty to one count of incest with his biological daughter Kolin Kolwin on 9th of November 2001 contrary to s.223 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

Relationship.

The victim in this case is the biological daughter of the accused. At the time of the offence, the victim was at the age of 15 years.

Facts.

The facts of this case are that on 9th of November in 2001, early in the morning about 5am the accused took his two children Kolin Kolwin (the victim) and his son Joachim Midowe to their family garden. When they were in the garden, the accused sent his daughter to collect some leaves for wrapping betel nuts. She returned to where the accused was and noticed that his little brother was not there. Upon putting the leaves away, the accused grabbed the victim by one of her hands and led her away to where she had cut the leaves.

He then forced her on to the ground and thereafter sexually penetrated her. Immediately after committing this offence upon her, she ran home while crying and reported the matter to her uncle. Her uncle Raphael confirmed in his statement that the victim came to him crying and reported to him and other relatives that, her father had abused her by having carnal knowledge of her.

The victim was medically examined at the Keravat Health Centre by an Health Extension Officer, Mr. Joe Ngalu and Sister Simaima Roberts. According to the report, there were no marks of physical assault or scratches on the body of the victim. They further found that there had been actual penile entry and the vaginal opening could allow for two fingers to be inserted. The report confirms that there was sperm seen on the vulva and inside the vagina.

LAW.

The accused is charged pursuant to s.223 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. The maximum penalty prescribed by Subsection (1) of the section in an imprisonment term of seven (7) years. Subsection (2) of the section defines ‘close blood relative’ relative in the following words:

"For the purposes of this section, a close blood relative means a parent, son, daughter, sibling (including a half brother or half sister), grandparent, grandchild, aunt, uncle, niece, nephew or first cousin, being such a family member from birth and not from marriage or adoption."

The offence of incest is punishable by an imprisonment term of not more than seven (7) years. Like any offences committed against the above Act, there are a number of aggravations involved. At the time the accused committed the offence, the victim was 15 years while the accused himself was age 32 years at the time of the offence. The facts do not reveal any form of persistent abuse as defined in s.229D of the Act.

The facts show that, there is an existing relationship of trust, authority and dependency. The accused is the father of the victim. It was the accused who brought up the victim into life through his relationship with the mother of the victim. The victim in that sense is the accused’s own daughter born to you from your wife’s womb.

Only animals can commit incest as they cannot perceive nor discern between what is good and bad. God was very clever when he created human beings. He created him and crowned him with honour and glory because He created man in His own image, with instinct to discern between good and evil: Genesis Ch.1 & 2. Abuse of trust is an offence according to s.229E which states:

"(1) A person who engages in an act of sexual penetration or sexual touching of a child between the age of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years.

(2) It is not a defence of a charge under this section that the child consented unless, at the time of the alleged offence, the accused believed on reasonable grounds that the child was aged 18 years or older"

The accused breached the trust existing between him and his daughter. In time of trouble and danger the accused could be expected to provide refuge to the victim and the breach he caused is very severe indeed. Such breach can cause great havoc in your family ties first with your wife, then with her uncles then of course the extended family ties that are commonly practiced in Papua New Guinea. As already noted the accused is the biological father of the victim. The definition of "relationship of trust, authority and dependency" is defined in s.6 (1) (2) (a) to (h) and described the nature and closeness of such relationship in the following terms:

"(1) When the term relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where -

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or
(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant’s grandparent, aunt, uncle, sibling (including step-sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or
(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care or control."

As I have noted, the accused being at the age of 32 years molested his own daughter who was 15 years. The accused is married with seven (7) children one of whom is the victim in this case. The problem with the current legislation is that, the penalty provision in the current amended legislation provides for the maximum penalty 7 years. It is my view the penalty provided by the new legislation cannot achieve its intended purpose of deterrence as used to be the case with the penalty of life imprisonment.

Under the old provision, where there were circumstances of aggravation, a sentencing judge could exercise his or her discretion to sentence between a term of years and or life imprisonment. However even with that approach, a sentencing Court is also required to observe sentencing guidelines set by the Supreme Court and the sentencing trend taken by the National Court throughout the country.

The Parliament has decided that the penalty for incest should be 7 years so the court is bound to apply the law as it stands. Let me now cite some incest cases to see the trend of sentencing and the approach taken by National Court judges in dealing with incest cases. In The State v David Kiaplaen Daniel & Pauline Warpin Daniel (1999) N1877 an incest between the mother and her son. David Kiaplaen was sentenced to 8 years with one year suspended while Pauline was sentenced to 2 years. In The State v Arthur Maradi (1999) N1878 the accused was sentenced to 8 years with part of the sentence the sentence being suspended. Those were case in late 90s. On the recent trend of sentencing before the new legislation came into operation, in The State v James Donald Keimou (2001) N2299, the accused in that case was sentenced to life imprisonment. In The State v Amos Audada (2003) N2454 the accused was gaoled for a term of 10 years.

In this Province, in The State v Eddie Sam (2004) N2521, the prisoner was sentenced to 17 years imprisonment for nine counts of incestuous relationship with his biological daughter. In that case, the prosecution was also brought under the old section. In The State v Adrian Hamos CR.NO.701 of 2005 (13.9.05) the accused pleaded guilty to one act of incestuous relationship with his cousin sister. He was sentenced to 4 years imprisonment. That was a case in Buka, North Solomons Province. In The State v Henry Tade CR.NO.1104 of 2004 (2004), a case in this Province, the accused was sentenced to 4 years.

In The State v Paul Tovinal CR.NO.984 of 2004 (2005) the accused was sentenced to 4 years. In The State v Francis Angosiven (2004) N2670, the accused was sentenced to the maximum of 7 years due to certain aggravations. That was one case where the court imposed the maximum.

It is noted that prior to the new amendments coming into operation sentences for incest cases were much higher. As alluded to earlier, the maximum of seven (7) years prescribed by the penalty provision for incest cases does not and will not provide any effective deterrence against the heinous crime that is eating away the fabrics of our society. It might have been a serious mistake on the part of the legislature to reduce the penalty for the crime of incest to 7 years. Under the old section, an accused could be sentence to life imprisonment. A case on point is The State v James Donald Keimou (supra).

As a nation, PNG must bring a human rights approach in dealing with sexual abuse and violence in our societies. It is commonly accepted that women and girls are the major victims of sexual violence in all communities throughout Papua New Guinea. Some times young males are also affected and that is why the Criminal Code (Sexual Offences and Crimes Against Children) Act is not gender specific.

Breach of trust is betrayal in the most severe kind and is a form of ‘personal treason’. This is how His Honour Brunton; A.J, put it in The State v Sottie Apusa [1988-89] PNGLR.170 at 172:

"There are other relationships of trust which in my view constitute circumstances of aggravation in these cases. For example, within the medical profession, the relationship between doctor, paramedic, nurse and patient. It is within this broad category of trust and dependency that offences committed by "step-fathers" or "uncles" should fall, for a relationship between a step-father or "uncle" and a young girl may be one of complete confidence and love – and to break that bond sexually may not only subject the victim to psychological damage, but is a betrayal, a form of personal treason"

I have considered all counsels submissions on both mitigations and aggravations. I have considered the accused guilty plea to this very serious charge. I consider that a sentence of 6 years is appropriate. The prisoner is sentenced to an imprisonment term of six (6) years in hard labour. The time spent in custody is deducted. He shall serve the balance.
______________
Lawyer for the State: The Public Prosecutor
Lawyer for Accused: The Public Solicitor.