State v Pitmete [2007] PGNC 105; N3229 (19 November 2007)

N3229

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1424 of 2004

STATE

V

MARCUS PITMETE

Kokopo: Lay J.
2007: 14 & 19 November

CRIMINAL LAW – Criminal Code - s223 - incest - sentence - approach to sentence - facts supporting a more serious offence not to be taken into account - whether lack of consent a consideration - father, aged 44 years and daughter aged 19 years at time of offence - guilty plea - first offender - sentence of four years imprisonment.

Facts
The offender had sexual intercourse with his natural daughter. He was then aged 44 years and the daughter was aged 19 years. Initially denying the offence, before the National court the offender pleaded guilty.

Held

1. 1. A sentencing judge should not take into account facts and circumstances appearing from the depositions which constitute a different or more serious offence from that which the offender has been charged;
   
2. 2. Consent or lack of it is not an element of the offence of incest under Section 223 of the Criminal code. Evidence of lack of consent should not be taken into account because it is a circumstance of a more serious offence;
   
3. 3. Incest with a daughter is a serious breach of trust;
   
4. 4. That the daughter was a young woman and not a child and that she had lived most of her childhood outside the natural father's home, were matters of minor mitigation.
   

Cases Cited

PNG Cases

The State v Francis Angosiven (2004) N2670
The State v Tewa Kolwin Towin (2006) N3053
The State v Gidingeng Yaking (No.2) 2006 CR 1743/2006 (17/10/2006)
The State v Henry Matatenge CR No. 480 2007 unnumbered unreported decision of Lenalia J.
The State v Jack Bola, (2007) N3224
John Baipu v The State (2005) SC796
SCRA NO 52 0F 2005 Saperus Yalibakut V The State, Wewak 27 April 2006
James Mova Meaoa v The State [1996] PNGLR 280

Overseas Cases

R v. Corless (1989) Crim LR 517 (27 January 1989)
Attorney-General's Reference No. 1 of 1989 (1989) 139 New Law Journal 115 (31July 1989)

References
Criminal Code
Evidence Act

Counsel
L. Rangan, for the State
P. Moses, for the Accused

VERDICT

19 November, 2007

1. LAY J.: On the evening of 4 February, 2004 the offender, then aged 44 years, was with his eldest natural daughter, then aged 19 years, at his house at Takekel Village, Gazelle District. They commenced to walk together to another place where some activities were to be held for a fund-raising. On the way the offender had sexual intercourse with his daughter who later reported what had happened to her relatives.
   
2. From approximately age 1 year to age 15 years the daughter lived in Port Moresby with an aunt, returning to live with her biological parents in 2001.
   
3. On a plea of guilty the offender has been convicted of one count of incest contrary to the provisions of section 223 of the Criminal Code.
   
4. On his allocutus, the offender said sorry to everyone, drew to the court's attention that he has 10 children and has been in custody for three years four days and asks for mercy.
   
5. Counsel for the offender submitted that the offender is 47 years of age, his parents are dead, he has been married for 23 years to his wife who has given him 12 children of whom 10 are alive. The offender has never been to school. He has no criminal record and has been a law-abiding citizen until this event.
   
6. Section 223 of the Criminal Code provides that "A person who engages in an act of sexual penetration with a close blood relative is guilty of a crime. Penalty: Imprisoned for a term not exceeding seven years".
   
7. In his comprehensive written submissions handed up to the court counsel for the offender has referred to all of the reported and unreported numbered decisions of the court on this provision of the Code. A good number of those cited cases relate to the period prior to the coming into operation of the amendment to the section on 10 April 2003. Prior to amendment the provision stipulated a maximum sentence of life imprisonment. So that, although some of the statements of principle in the cases prior to the amendment are still relevant, the actual sentences are not.
   
8. Some of the sentences under the amended provision have been as follows:
   
   1. The State v Francis Angosiven (2004) N2670, Kandakasi J., conviction after a trial, penetration of 15 year old biological daughter secured by threats with a knife, maximum of seven years imposed;
      
   2. The State v Tewa Kolwin Towin (2006) N3053 offender aged 39 years victim aged 15 years biological daughter of offender, on a plea of guilty sentence of six years in hard labour. Aggravating factors included it was a grave breach of trust because the daughter had lived with her father from birth;
      
   100. The State v Gidingeng Yaking (No.2) 2006 CR 1743/2006 (17/10/2006) unnumbered and unreported (available on PNGinLaw unnumbered judgments) Kirriwom J.-victim under 16 years of age, offender aged 50 years, prior conviction for assault, violent man, ruled family with an iron fist, single act, after a trial sentence to 6 1/2 years imprisonment;
        
   4. The State v Henry Matatenge CR No. 480 2007 unnumbered unreported decision of Lenalia J., offender biological father of victim, persistent sexual abuse, using the daughter as his wife, abuse of trust authority and dependency, possessive and violent, on a plea of guilty to two counts sentenced to six years for each count to be served cumulatively.
      
9. In a recent case of The State v Jack Bola CR. No. 1529 of 2005 N 3224 I said:
   

"Prior to the amendments to sexual offences and the introduction of further offences to protect children in the Criminal Code in April 2003 the maximum penalty for incest was life imprisonment pursuant to Section 223 of the Code. What Parliament has done by introducing new provisions with heavy penalties for sexual offences against children, and by changing the penalty for incest from life to seven years, is to recognise the experience of the courts that the great bulk of incest cases with serious aggravating features were offences against children involving, in many cases, gross breaches of trust. Because of the changes that Parliament has made it is now appropriate that such offences be dealt with under Division 2A as this case has been. An incest charge would now only be brought against consenting persons within the prohibited degree of relationship."

10. When sentencing under Section 223, I should not take into account facts and circumstances which constitute a different or more serious offence from that with which the offender has been charged: John Baipu v The State (2005) SC 796 Sevua, Sawong and Lay J. J. where the court held that a sentencing judge should not take into account an act, omission, matter or circumstance if the circumstances would then establish:
    
    1. a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted; or
       
    2. a more serious offence than the offence of which the person to be sentenced has been convicted.
       
11. In sentencing under section 223, I therefore consider that it would be wrong to take into account any material in the depositions which might suggest penetration was achieved by force and without the consent of the other party, which would establish a more serious offence. I have to accept that the State, for reasons of its own and unknown to me, has decided not to bring the more serious charge that the depositions may suggest would be available. The reasons the State has for doing so are no doubt wide and varied, but would include an assessment by the prosecutor that an element of the more serious offence could not be proven. I must assume that any plea bargain entered into between the parties to reduce the seriousness of the offence to which the accused pleads is a proper reassessment by the prosecution of the strength of its case and that the prosecution is still pursuing its duty of preferring the most serious charge the evidence will sustain.
    
12. If I take into account more serious conduct disclosed in the depositions, with which the offender has not been charged, I would definitely be taking into account an allegation of conduct which the accused has not been called upon to answer, and evidence, which has not been tested; when the prosecution may well have formed the view the evidence would not stand up to cross-examination. I therefore respectfully dissent from the views of my brother Kandakasi J. expressed in The State v Francis Angosiven (2004) N2670 to the effect that the facts and circumstances giving rise to a more serious offence disclosed by the depositions can be taken into account in passing sentence, or that a plea bargain between the prosecution and defence precludes any deduction from the maximum penalty for the offence with which the offender has been charged. To do so in my respectful view punishes the offender for facts and circumstances which he has never had the opportunity of pleading to or defending.
    
13. Further support for this view is obtained from the Supreme Court decision in SCRA NO 52 0F 2005 Saperus Yalibakut V The State, Wewak 27 April 2006, Jalina Mogish and Cannings J. J., where the court held that a sentencing judge should not take the view that a prisoner is not entitled to any further reduction from the maximum sentence because of a plea bargain, nor should he sentence a person pleading guilty on the basis of the facts of a more serious offence than the offence to which he pleaded. Where sworn evidence is not taken the sentencing judge should take into account the offenders version of factors which mitigate culpability for the offence.
    
14. Two cases in the English Court of Criminal Appeal have considered matters which are relevant in sentencing in cases of incest under the English legislation, which I hasten to add is quite different from our own. The first case is R v. Corless (1989) Crim LR 517 (27 January 1989), the Court referred to the various matters to be considered: the age of the girl, the length of time over which the offences spread, the degree of corruption, the extent of the breach of trust, the use of violence, the effect on the girl, the presence or absence of perversion, the offender's record and any plea of guilty which would save the girl the further trauma of giving evidence. In the second case, Attorney-General's Reference No. 1 of 1989 (1989) 139 New Law Journal 115 (31July 1989), the court mentioned:
    

Factors of aggravation to be considered were, if there is evidence that the girl has

1. Suffered physically or psychologically from the incest.

2. If the incest has continued at frequent intervals over a long period of time.

3. If the girl has been threatened or treated violently by or was terrified of the father.

4. If the incest has been accompanied by per- versions abhorrent to the girl, eg. Buggery or fellatio.

5. If the girl has become pregnant by reason of the father failing to take contraceptive measures.

6. If the defendant has committed similar offences against more than one girl.

15. Possible mitigating factors were suggested to be:
    

1. A plea of guilty. It is seldom that such aplea is not entered, and it should be met by an appropriate discount, depending on the usual considerations, that is to say, how promptly the defendant confessed and his degree of contrition and so on.

2. If it seems that there was a genuine affection on the part of the defendant rather than the intention to use the girl simply as an outlet for his sexual inclinations.

3. Where the girl has had previous sexual experience.

4. Where the girl has made deliberate attempts at seduction.

5. Where, as very occasionally is the case, a shorter term of imprisonment for the father may be of benefit to the victim and the family.

16. Great care has to be exercised in accepting uncritically suggestions such as the above because of the divergence our legislation has taken from many overseas jurisdictions. For example, it was specifically held by the English Court of Criminal Appeal that one of the aims of the English legislation is to protect young people. In my view that is not an object of Section 223 of our Criminal Code, the protection of young people from sexual offences, being contained in the new Division IV 2A and 2B. However, while keeping in mind that the "victim" of the crime under section 223 is not likely to be a child, and that the "victim" could be of either sex, with some exceptions the matters referred to in Attorney-General's Reference No. 1 of 1989 (1989) could be relevantly taken into account.
    
17. Exceptions are, first the reference to previous sexual experience. That could not be relevant if such evidence was adduced for the purpose of establishing the victim’s sexual reputation, because the evidence would not be admissible pursuant to the provisions of Evidence Act Section 37G. The victim cannot be cross examined about his or her sexual experience: Section 37H. It may be relevant if adduced, with the leave of the court, for the purpose of demonstrating the event was not traumatic. Secondly, threats or perversion against the will of the victim would have to be treated with care to ensure that they are not evidence of the matters referred to in [10].
    
18. A breach of trust has always been regarded has an aggravating factor: See James Mova Meaoa v The State [1996] PNGLR 280. In determining the degree of breach of trust, I consider that the closeness of the blood relationship and the difference in age between the offender and victim are important matters to be taken into consideration. The closer the relationship by blood and the greater the age difference, where the offender is the older party, the greater the breach of trust in a relationship which should consist of asexual natural love and affection.
    
19. In this case counsel for the offender has submitted that there is the suggestion in the depositions of evidence of consent, and conversely, counsel for the State has submitted that there is evidence of coercion. To my mind this issue of lack of consent is not an element of the offence of incest. Whether or not there has been consent has never been put to the offender and it is not a matter to which his plea relates. Therefore I will not take the evidence into account one way or the other on the issue of consent.
    
20. Mitigating factors in the case are the guilty plea, which has saved the time of the court and the stress of giving evidence to the offender's daughter, although I note the offender initially denied the charge; and that this is the offender's first offence. I also take into account that the daughter was not a child who had just reach puberty, but a young woman, as a factor slightly reducing the gravity of the offence, from such cases as The State v Tewa Kolwin Towin (2006) N3053. That the daughter had also spent the greater part of her life not growing up in the offender's home, but elsewhere, is a matter which I take to very slightly mitigate the offender's culpability.
    
21. Counsel for the offender has also submitted that mitigating factors include no physical injury, no transmission of sexually transmitted disease, no persistent sexual abuse, no pregnancy, no threats or force. If these factors were present they would certainly be aggravating factors. However I do not consider their absence to be mitigating factors.
    
22. The aggravating factors are that the offender did this to his own daughter so that it was a serious breach of trust. The offender was 25 years the senior of his daughter, she should have been able to trust him to look out for her welfare.
    
23. Taking a starting point of three and half years, the midpoint to the maximum of seven years, adding a measure for the aggravating factors and making an allowance for the guilty plea and other mitigating factors, I consider a term of four years imprisonment appropriate penalty in this case. The offender is sentenced to the term of four years imprisonment less the three years and four days spent in pre-trial custody, leaving a balance of 361 days to be served.

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Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyers for the Offender