State v Feri [2008] PGNC 30; N3305 (11 March 2008)

N3305

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1274 OF 2007

THE STATE

-V-

TOM FERI

Tabubil: Kandakasi, J.
2008: 5 &11 March

DECISION ON SENTENCE

CRIMINAL LAW – PRACTICE & PROCEDURE – Parliament reducing penalty despite prevalence of offence – Effect of – Court legally bound to proceed on assumption that Parliament makes no mistake – Court has discretion to impose maximum prescribed penalty in appropriate cases - Criminal Code ss. 19 and 223.

CRIMINAL LAW – PRACTICE & PROCEDURE –Indictments and sentences – Indictment presented for less serious offence in terms of penalty when facts discloses more serious offence – Unless exceptional circumstances exist no need to further reduce sentence under less serious offence.

CRIMINAL LAW – Incest by father against biological daughter – Offence committed in circumstances amounting to rape – Use of grass knife to threaten and secure sexual penetration - Sentences for rape in similar circumstances considered - Guilty plea by first time offender –No physical injuries to victim – Factors in aggravation outweighing factors in mitigation – Sentence of 6 years imposed – Criminal Code ss. 223 and 347.

Cases Cited:
The State v. Francis Angowisen (No.1) (19/06/04) N2669.
The State v. Amos Audada (13/05/03) N2454.
The State v. Eddie Sam (03/02/04) N2521.
The State v. James Donald Keimou (12/10/01) N2295
Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71

Counsel:
Kesan, for the State.
Kapi, for the Prisoner.

11 March, 2007

1. KANDAKASI J: You pleaded guilty to a charge of incest against your own biological daughter. After receiving both you and your lawyer and that of the State’s address on sentence, I reserved a decision on your sentence to today. This is now the decision of the Court.

Relevant Issue

2. The issue for the Court to decide is, what is an appropriate sentence or penalty for you? In order to determine that question, I need to take into account the particular facts and the circumstances in which you committed the offence, the offence and sentencing trends and tariffs, your personal background and the factors operating both for and against you.
   

Relevant Facts

3. Turning firstly to the facts, I note they are straightforward. In the early hours of 29 August 2007, around 2:00 am, you went to your house after getting drunk in the earlier part of the night. When you got home, you found that, your biological daughter, then aged between 18 and 19 years old, was not home. You asked your wife as to your daughter’s whereabouts and she told you that, your daughter had gone to Joe Kamsi’s house. Upon hearing that, you got your grass knife and went looking for her at Joe Kamsi’s house. There, you found her sleeping with the children of that house or home. You woke her up and asked her to accompany you back to your house. She refused to do that and you insisted on her coming with you and threatened her with the bush knife. Hence, she reluctantly followed you out of the house.
   
4. On the way to your house, about 200 meters away from Kamsi’s house, you took her into the nearby bamboo patches and told her that, you will have sexual intercourse with her. She refused and you slapped her on her cheek and covered her mouth to stop her from screaming. Then you forcefully removed her cloths. After that, you forced her onto the ground, went on top of her and proceeded to have sexual intercourse with her. You were continuously having sexual intercourse with her until she tricked you into saying two people were watching you. That made you to leave her and she went crying to the Kamsis and reported what you did to her. You were subsequently arrested and charged for committing the offence.
   

Offence and Sentencing Trend

5. Section 223 of the Criminal Code as amended, creates and prescribes the penalty for the offence of incest. Presently, the penalty is 7 years maximum, which is a reduction from an original prescription of life imprisonment. I fully discussed the effect of this and the sentencing tariffs in a number of my earlier decisions. One such decision is the case of The State v. Francis Angosiwen (No 2).[1]
   
6. In the above and other cases, I said, Parliament has apparently made an obvious mistake or was led to make a mistake in reducing the penalty provision for a number of reasons. First, the offence of incest is a very serious offence because it destroys the sacred trust between close relatives. Secondly it is an offence that is prevalent and on the increase. Thirdly, given the seriousness and its prevalence of the offence the courts have imposed sentences beyond 7 years. Such sentences range from 10 years as in The State v. Amos Audada[2] and 17 years cumulative for 9 counts of incest as in The State v. Eddie Sam.[3] They even reached life imprisonment as in The State v. James Donald Keimou,[4] for repeated acts of incest by a natural father against two daughters with a total of three children being born to the daughters. Finally, this change in the penalty does not accord well with the reasons for the recent amendments to the Criminal Code particularly those provisions dealing with sexual offences against children, which increased sentences and made it easy to get a conviction in these kinds of offences for the protection of our children, young girls and women.
   
7. In those earlier cases, I also said, there is no power in the Court to correct this apparent mistake. That power belongs to Parliament. As such, all that the Court can do is to recommend to Parliament to reconsider the penalty provision with a view to restoring the previous penalty of life imprisonment or prescribe a sentence closer to it. Until that is done, I said, the Court must apply the current provisions as they are and approach sentence on that basis on the assumption that Parliament did not make any mistake.
   
8. Proceeding on the above basis, I held further that, the sentencing guidelines as set by Mitige Neheye v. The State; Martin Gawi v. The State,[5] continue to apply but with some variation to reflect the reduction in the penalty. These guidelines suggest that, if the circumstance in which the offence was committed constitutes rape, then the sentence must proceed as in a rape case. Going by that guideline, I noted that, sentences for simple cases of rape on guilty plea, attract sentences between 13 years and 17 years. I then held that, because of the penalty provision as they are in incest cases, the Court cannot impose a sentence beyond the maximum prescribed sentence of 7 years. In arriving at that view, I noted that, it is now almost settled law that, where an indictment for a lesser offence is presented when the facts support an indictment for a serious offence, the Court should not further reduce the prescribed maximum sentence as in this case, 7 years, except where "very good mitigating factors exists."
   
9. Then in view of the sentences imposed for rape cases and noting that no other very good mitigation factors existed that warranted a further reduction in the sentence, I imposed the maximum prescribed sentence of 7 years in the Francis Angowisen case. In so doing, I noted that, the sentence accommodated and reflected the seriousness of this offence, the prisoner’s guilty plea and that he was a first time offender.
   

Sentence in Your Case

10. For the purposes of sentencing in your case, I note from your address on sentence and your lawyer’s submissions, your family and personal backgrounds which is this. You are aged 41 and come from Andra Village, Wewak, East Sepik Province. At the time of the offence, you were self-employed as a carpenter and were living with your current wife. You were previously married to your daughter and the victim of your offence’s mother. You left her and came to this province. The victim was brought up by her mother and the victim only came to be with you at your request and had been with you for only a few months.
    
11. From your current wife, you have two children, one attending school and the other a baby. Your wife is unemployed and has no fixed source of income. You are the sole bread winner for your family. Your father is deceased while your mother is alive. You are the third born in a family of three brothers and no sisters. You have no formal education. Following the commission of the offence, you have been in custody for 1 month 1 week.
    
12. In your address on sentence, you asked for God’s mercy and asked the Court to give you a suspended sentence or place you on a good behaviour bond. Your lawyer urged the Court to note in your mitigation, your guilty plea, that you are a first time offender and that you have not caused any physical injuries to the victim or made her pregnant.
    
13. On the other hand, the State urged the Court to note that, the offence you committed is a very serious offence and that you committed the offence against your own blood, using force or threats of force. Your lawyer argued for a sentence closer to the maximum and the State argued for a sentence between 4 to 5 years.
    
14. For the purposes of sentencing, I take into account firstly that, you pleaded guilty to the charge against you. This is consistent with your early admission of the offence when the police initially arrested and charged you. You maintained that position through the committal process up to this Court. That saved the State much time and costs that could have been spent in running a trial to establish your guilt. It also prevented the victim from coming into Court and relive the ordeal, shame and pain you have put her through.
    
15. Secondly, I note that this is your first ever offence. That means, since the day you were born, you have never broken the law. The offence you committed went against that clean and good record.
    
16. Thirdly, you did not cause your victim any physical injuries, which is separate and distinct from the psychological pain and trauma you inflicted upon her. Similarly, I note that, you have not impregnated, or infected her with a sexually transmitted decease.
    
17. Against you are however, a number of aggravating factors. First, you committed an offence that is prevalent. The kinds of sentences that are being imposed against offenders like you appear not to be serving the intended purpose of deterring offenders and other would be offenders from committing this kind of offences.
    
18. Secondly, you committed the offence against your own blood daughter. The law recognizes the sacred trust that usually exist between close relatives. Accordingly, the law says that a person who commits an offence in breach of the trust placed in him or her must be dealt with severely than other offenders. This is because, there is usually no expectation that a person like you would turn against their own close relatives. It is already worse outside the family home, where young girls seem not to have the freedom to go where they want to go and carrying on with their normal everyday life and activities. The family unit is the only place of peace and safety so where someone like you violates the family setting; it is a serious offence, not only against the family, but the whole community and the country.
    
19. Thirdly, you committed the offence in circumstances that reveal a case of rape by an adult male against a vulnerable young female. You used forced and threaten the use of force to secure the sexual intercourse of your own daughter. Rape cases are on the increase and the Courts have already started to increase penalties in rape cases. Most of the sentences for rape these days are well passed the 10 years mark for simple acts of rape. Sentences for these kinds of offences are now hovering around the 12 to 17 years range.
    
20. Fourthly, I note there is no evidence of you appeasing the wrong you have inflicted upon the victim. I also take it that, the offence you committed against the victim was an insult and a serious wrong committed against her mother. After you left the victim’s mother and chose your life in this Province with you current wife and family, it seems clear to me that, the victim’s mother bore the hard work of raising the victim and let you have the privilege and honour of having her as your daughter. You did not honour that good will and the privilege thus accorded. It seems to me that, your first wife being the mother of your victim and daughter and your current wife appear not to have kept you sexually satisfied so it seems you turned on your own daughter. There are many women out there looking for someone like you to keep them happy sexually either casually or on a full time basis. You could have easily turned to you current wife or any other women through a proper way but your chose not to and turned against your own daughter. What you did is unbelievable and unforgivable against your own daughter.
    
21. Weighing all the factors for and against you, I find that the factors against you far out weight those in your favour given the emphasise these days at protecting the children and the right for them to live safe and normal lives. A parent who violates his or her own children in a most unspeakable act or way such as forceful sexual intercourse, which is the worse form of abuse, should not be let off lightly but sternly punished to deter both an offender like you and other would be offenders. Having regard to all that has been said and the particular circumstances in which you committed this offence, I consider the maximum sentence of 7 years is called for. However, in the light of your guilty plea and being a first time offender, I consider a sentence of 6 years appropriate and I hereby impose it. Out of that, I order a deduction of the period of 1 month and 1 week being the period you have already spent in custody waiting your trial and sentence. That leaves you with a balance of 5 years, 10 months and and 3 weeks yet to serve. I order that you serve that period in hard labour at the Nigerum Correction Service. A warrant of commitment in those terms shall issue forthwith.
    

Public Prosecutor: Lawyers for the State
Public Solicitor: Public Solicitor

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^[1] (21/06/04) N2670
^[2] (13/05/03) N2454
^[3] (03/02/04) N2521
^[4] (12/10/01) N2295
^[5] [1994] PNGLR 71