State v Liligau [2007] PGNC 87; N3195 (19 April 2007)

N3195

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 790 OF 2004

THE STATE

-V-

WANINARA JUDAS LILIGAU

Kokopo: Lenalia, J.
2007: 13 & 19 April

CRIMINAL LAW – Sexual offences – Sexual penetration of blood relative –
Aggravations – Incest by men of daughter – Age 16 years – Offences committed for period of years from 2000 to 2004 – Persistent sexual penetration – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 200, s.229 (A) (2)

CRIMINAL LAW – Incest aggravations – Breach of trust – Pregnancy –
Child born to victim – Incest and like offences very prevalent in Tolai community – Substantial age differences – Pattern of abuse - Aggravation – Punitive and deterrent sentence called for – Sentence of 15 years appropriate.

Cases cited

Public Prosecutor v Terrance Kaveku [1977] PNGLR 110
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
The State v Sottie Apusa [1988-89] PNGLR 172
The State v Mitige Neheya [1988-89] PNGLR 174
Gimble v The State [1988-89] PNGLR 271
Mase v The State [1991] PNGLR 88
Public Prosecutor v Don Hale (1998) SC546
The State v David Kiaplaen and Pauline Warpin (1999) N1877
The State v Arthur Maradi (1999) N1878
The State v Donald Kemimou (2001) N2299
The State v Amos Audada (2003) N2554
The State v Eddie Sam (2004) N2521
The State v Thomas Angup (2005) N2830
The State v Esrom Tiama (2006) N3054
The State v Hosea Wartovo (30.3.07) CR 695 of 2006

Counsel

Mr. L. Rangan, for the State
Ms. S. Maliaki, for the Accused

19 April, 2007

1. LENALIA, J: The accused, Waninara Judas Liligau of Wunamami village in the precincts of Kokopo town pleaded guilty to three charges of incest or sexual penetration of a close blood relative against his own daughter who I will only refer to as L. P. L. contrary to s.223 (1) & (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

Facts

2. The facts to which the prisoner pleaded guilty are as shown by the victim’s statement and other statements by village elders and the victim’s mother. In an unknown date in the year 2000, after the accused’s family had had dinner, the victim started to wash dishes in the kitchen. The accused took the victim’s hand and pulled her onto a bed still in the kitchen and sexually penetrated her. This was done in the absence of the mother and other children. After having sex, the prisoner told the victim not to tell anyone about what he did to her.

3. The second time the prisoner sexually penetrated the complainant was again on an unknown date. The complainant was collecting dirty clothes to do laundry. The prisoner came to where the victim was and pushed her to the bed-room belonging to the prisoner and his wife and thereafter he had sex with her. The victim’s statement is clear that sexual intercourse between the prisoner and his daughter continued until the victim got pregnant resulting in the victim giving birth to a female child on 25 May 2002. It is evident from the facts tendered that each time the accused had sex with the victim, he would tell her not to tell anybody about what he was doing to her. As well, the prisoner would give her money.

4. The saddest thing about the victim was that when the relatives realized that she was pregnant they told the victim’s mother and one day, her mother called her in during a luncheon break and asked her who or which person was responsible for the pregnancy. Due to the shame she bore at that time, she did not want to reveal who was responsible for the child in her. Then after she had given birth, the mother of the victim realized that the baby had similar features to the victim’s father. The victim then revealed that her father was responsible for making her pregnant and he was the father of her child.

5. It is noted that sexual intercourse between the prisoner and the victim continued until the month of January 2004. The last act of sexual penetration took place in a cocoa or coconut fermentary. After the victim had revealed to her mother and relatives her father’s relationship with her, she ran away to her boy-friend at Volavolo village on North Coast.

Addresses

6. On his address to the court when allocutus was administered to him, the prisoner said he is sorry for what he did to his daughter. He said sorry to his family including the victim, to his community and to the State. On behalf of the prisoner, Ms. Maliaki submitted in favour of the prisoner that the court should consider the accused background circumstances such as the prisoner’s co-operation with the police during investigation, and he has got a large family of ten children including the victim. Counsel submitted that the circumstances in the case of The State v Hosea Wartovo (30.3.07) CR.N0.693 of 2006 a case by His Honour Sevua J; was more serious than the facts of the present case because in that case there were elements of violence and force whereas in the instant case, no violence was involved. In that case the prisoner was sentenced to cumulative and concurrent terms of 28 years for eight counts of incestuous relationship with his daughter A.W. Ten years were deducted due to old age. The custody period was deducted and he is serving 16 years 10 months and 2 days in light labour imprisonment.

7. For the State, Mr. Rangan submitted that the instant case involves circumstances of aggravations such as there was breach of trust involving the prisoner and his daughter and secondly that, the victim gave birth to a child as the result of the accused’s incestuous relationship with the victim. Counsel submitted that, any penalties to be imposed should reflect the concern of all communities in this Province over the increasing sexual offences being freely committed.

LAW

8. 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 is an imprisonment term of seven (7) years. Subsection (2) of the section defines ‘close blood 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."

9. 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 16 years while the accused himself was about age 40. He is now at the age of 45 years. Another aggravation was there was a very big age deference between the prisoner and the victim.

10. Let the court start with the premise that the crime of incest is evil and it is an offence against one’s one child if committed by the father or mother of a child affected or between brothers and their sisters. The case of The State v Mitige Neheya [1888-89] PNGLR 174 establishes that incest is a violation of the most fundamental principle of the ‘sacred trust’ that a child has in his father or mother. The offence infringes and violates the fundamental duty of the father and mother to care for their children and rear them up in the manner expected by the Constitution and the law. The above case sets out appropriate sentencing guidelines in incest cases.

11. With respect, I am of the view that, the guidelines set there may be outdated because the decision was decided some seventeen years ago and just as the Supreme Court commented in Public Prosecutor v Don Hale (1998) SC 564 that crimes of armed robbery are prevalent, the sentencing tariff in Gimble v The State [1988-89] PNGLR 271 should be reviewed to cater for the up-surge of that crime in our time, so are sentences for sexual offences. Sentences for sexual cases should be raised to cater for the violence associated with sex at our present time. I would agree with Mr. Rangan that incest and of course other sexual cases are quite prevalent in this Province.

12. In the present case, the accused breached the trust existing between him and his daughter. In time of trouble and danger the accused is expected to provide refuge and safety 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. This is despite the fact that the mother of the victim comes from Gulf Province. 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 counselor 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."

13. As I have noted, the accused being at the age of 40 years molested his own daughter who was 16 years. The accused is married with ten (10) 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 of 7 years only. It is my view the penalty provided by the new legislation cannot achieve its intended purpose of deterrence as used to be the case when the penalty of life imprisonment was the maximum in the old provision.

14. 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 under the old Section 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 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.

15. 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. The above case was the one brought under the new legislation.

16. Two of the offences committed by the accused in the present case were committed in the years 2000 and 2001. The State chose to indict under the new legislation which came into operation in 2002. There is no harm in the way the State had taken this course: The State v Thomas Angup (2005) N2830. On the issue of breach of trust, I reiterate what Brunton, J said in The State v Sottie Apusa [1988-89] PNGLR 172 that breach of trust is betrayal of the most severe kind and is a form of "personal treason". The offence of incest is very serious but the Parliament saw it fit to reduce the maximum penalty from life imprisonment to a lousy 7 years does not make any sense as most communities in this nation cannot readily accept this type of behaviour. In the olden days in many communities in this country, where a person committed incest of a near kin, those actors would usually be either forced to commit suicide or they would be killed.

17. On sentence, I take into account the accused’s guilty plea to the three charges. I have considered his statement in allocutus expressing remorse for what he did to his own daughter. I accept the accused statement of remorse. I have also considered the fact that he is a first offender. I have also considered addresses on mitigation and aggravation.

18. The prisoner is charged with three of incest offences and the totality principle requires that if the court wants to make two or more sentences consecutive I must ensure that the total is just and fair in all the circumstances of the cases before me: Public Prosecutor v Terrance Kaveku [1977] PNGLR 110 (see also) Mase v The State [1991] PNGLR 88. The Supreme Court expressed that rule in the case of Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 at 214 in the following terms:

"Nevertheless we think that this Court must consider the total or aggregate sentence and decide whether it is just and appropriate.

'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate"...The principle applies to all situations in which an offender may become subject to more than one sentence: where sentences are passed on different counts in an indictment or on different indictments, where the offender is subject to a suspended sentence or probation order, where he is already serving a sentence of imprisonment or makes appearances in different courts within a short space of time. In all such cases "the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive." ...'

19. In comparing sentences for sexual offences say for instance for an offence of sexual penetration under s.229A (1) or 229A (2) of the Act, some sentences imposed on offenders have been considerably high. An example of that trend is in the case of The State v Thomas Angup (supra) where the prisoner was charged with various counts of sexual penetration and sexual touching of an under age girl, the prisoner in that case was sentenced to 20 years imprisonment. In the case of The State v Kemai Lumou (23.9.04) N2684, the victim was age 14 when the prisoner was 22 years. He was convicted after a trial. The victim was a close relative of the defendant. The accused threatened the victim with a bush-knife and sexually penetrated her. He was charged under s.229A. Kandakasi, J sentenced the prisoner to 17 years. In The State v Esrom Tiama (13.4.06) N3054, the accused pleaded guilty to one count of sexual penetration under s.229A (1) aggravated by an existing relationship of trust, dependency and authority. The victim was only 9 years, the accused must have been 50 years. He was sentenced by this court to 12 years. Two years were suspended with condition to be placed on good behaviour bond after service of the total sentence.

20. The case before me is very serious and was aggravated by the breach of trust of the most sever kind. Taking into account the cases I have cited on the totality principle together with the serious nature of the present case, the prisoner is sentenced in the following manner: For Count 1, he is sentenced to a term of 6 years imprisonment. For Count 2, he is sentenced to 6 years imprisonment. For Count 3, the prisoner is sentenced to 5 years imprisonment. The consecutive effect of those three sentences adds up to a total of 17 years imprisonment in my view fair and appropriate sentence for the three charges. The time he has spent in custody shall be deducted. He will serve the balance.

___________________________________________________

The Public Prosecutor: Lawyer for the state
The Public Solicitor: Lawyer for the Accused