State v Jack [2010] PGNC 265; N4176 (17 November 2010)

N4176

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1186 OF 2010

THE STATE

V

PAUL JACK

Mendi: Makail, J
2010: 12th & 17th November

CRIMINAL LAW - Sentence - Guilty plea - Incest - Sexual penetration of daughter by father - Early guilty plea - Co-operation and admission of offence - No prior convictions - Remorsefulness - Daughter not falling pregnant - Breach of existing relationship of trust, authority and dependency - Big age difference of 19 years - Daughter 17 years - Father 36 years - Prevalence of offence - Punitive and deterrent sentence called for - Sentence of 5 years imprisonment imposed - Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002 - Sections 6A &223(1)&(2) and Criminal Code, Ch 262 - Section 19.

Cases cited:

The State -v- Francis Angosiwen (No 2) (2004) N2670
The State -v- Tikiria Amos (2005) N2614
The State -v-Tom Feri (2008) N3305
The State -v- Jack Bola (2005) N3224
The State -v-Marcus Pitmete (2007) N3229
Goli Golu -v- The State [1979] PNGLR 653
The State -v- Amos Audada (2003) N2454
The State -v- Waninara Judas Liligau (2007) N3195
John Baipu -v- The State (2005) SC792

Legislations:

Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002
Criminal Code, Ch 262

Counsel:

Mr J Kesan, for the State
Mr F Kirriwom, for the Offender

SENTENCE

17th November, 2010

1. MAKAIL, J: After arraignment, you pleaded guilty to one count of committing incest against your biological daughter under section 223(1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002.

BRIEF FACTS

2. Your daughter was born in 1992 out of a marriage between you and your wife Christina Paul. She was aged 17 years at the time of the offence. It was on 20th January 2010 when you told her to accompany you to the bush outside Mendi town to collect wild pandanus. While collecting wild pandanus, you attempted to take her to the nearby bush and she refused. You threatened her with a bush knife and she complied with your demand. You took her into the bush, removed her clothes, laid her on the ground and sexually penetrated her. In the course of sexual intercourse, one of the boys who accompanied you and her to the bush arrived at the scene and caught both of you in the act. This was not the first incident because there were at least three earlier cases of sexual intercourse between you and her but the details could not be ascertained by the State.

OFFENDER'S ALLOCUTUS

3. On allocutus, you said sorry for what you did to the Court and to your family. You accepted that you had broken the law. You have 5 family members, a garden and a house to look after. Your first born son is doing Grade 8 and you asked the Court as to who would care for them if you were to be imprisoned. You asked the Court for leniency.

THE LAW

4. Prior to the amendments to the Criminal Code, Ch 262 in relation to sexual offences, the offence of incest under section 223(1) carried a maximum penalty of life imprisonment. Following the amendment to the Criminal Code, Ch 262 by virtue of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002, it now carries a maximum penalty of 7 years imprisonment. Section 223(1) states:

"223. INCEST.

(1) A person who engages in an act of sexual penetration with a close relative is guilty of a crime.

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

5. A close relative is defined in section 223(2) as "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."

6. Some judges have expressed reservation in relation to the reduction in the penalty for this offence in light of the increase in the offence: see The State -v- Francis Angosiwen (No 2) (2004) N2670, The State -v- Tikiria Amos (2005) N2614 and The State -v-Tom Feri (2008) N3305.

7. Lay, J gave one reason for the reduction in the penalty for this offence in The State -v- Jack Bola (2005) N3224 and I agree with him. He 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." (Emphasis added).

8. His Honour followed that view in The State -v-Marcus Pitmete (2007) N3229 and went on to give some possible reasons for the State's decline to charge an accused person with a more serious sexual offence under Division IV 2A and 2B and also for the Court's decline to consider matters that would suggest a more serious sexual offence as follows:

"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.

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."

9. To my mind, it is important that the offence of incest must not be confused with other sexual offences against children under Division IV 2A and 2B of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002. The offence of incest is confined to close relatives as defined in section 223(2) as opposed to other sexual offences under Division IV 2A and 2B where the perpetrator may be a close relative or otherwise.

10. If those were some of the reasons for Parliament to reduce the penalty for this offence, there is nothing much the Court can do. What the Court can do is, it may impose the prescribed maximum penalty of 7 years or less depending on the circumstances of a given case by virtue of its discretionary power under section 19 of the Criminal Code, Ch 262 and in considering an appropriate penalty, the Court must reserve the maximum penalty for the worst case under consideration: see Goli Golu -v- The State [1979] PNGLR 653.

REASONS FOR DECISION

11. You are 36 years old and the sole bread winner of your family. I accept your apology and remorsefulness for the offence you have committed. It is true that your action has landed you in Court. It is also true that your family members have suffered as a result of your action. But you must understand that your family's suffering is a direct result of your foolish action. You did not stop to think that it was morally and legally wrong to have sexual intercourse with your own daughter. That is one of the reason your case is serious. You had sexual intercourse with your own biological daughter. This is absolutely unacceptable and immoral. I consider the observations made by Gavara Nanu, J in an incest case by father on daughter in The State -v- Amos Audada (2003) N2454 very pertinent to your case:

"Only animals lust after their children or sisters and brothers and vise versa. They do that because they do not have moral values and dignity as human beings. The Parliament has passed the relevant laws to ensure that such human values and dignity are protected and those who violate them will suffer severe punishments by the Courts.

In that regard, the conduct of the accused in lusting after his own daughter and grabbing her and forcefully having sex with her can only be described as animalistic. My use of the word 'animalistic' is not an emotional outburst. It is deliberate, and that to me is the only fitting description I can give to the accused who had exhibited such lascivious passion for his own daughter."

12. Secondly, your daughter will live with the embarrassment of being carnally known by her father for the rest of her life and once again, I agree with the observations made by Gavara Nanu, J in Amos Audada's case (supra) that:

"The victim was aged 19 at the time of the incident so she was almost half his age. As I said, although she did not consent to the crime, she will inevitably bear the embarrassment of being carnally known by her own father for the rest of her life.

The accused may even have destroyed the victim's chances of ever marrying, but if she does, it will never erase this most unfortunate incident from her mind."

13. Thirdly, I find there is a serious breach of trust in your case. The law recognises the scared trust that usually exists between close relatives. It is more serious where the relationship is very close like in your case where the victim is your daughter. You are caught by the definition of "relationship of trust, authority and dependency" which is defined in section 6A(1)&(2)(a) to (h) of the Criminal Code (Sexual Offences And Crimes Against Children) Act, 2002 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."

14. As Kandakasi, J said in Tom Feri's case (supra):

"..........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."

15. You were expected to provide for her welfare, protect her from danger and bring her up with the natural fatherly love. In The State -v- Waninara Judas Liligau (2007) N3195, the offender was charged with three counts of incest against his biological daughter. There was breach of trust, authority or dependency because the offender was the father of the victim and there was also persistent act of sexual intercourse. As a result, the daughter fell pregnant and gave birth to a baby. Finding them as serious aggravating factors, Lenalia, J imposed 6 years imprisonment each for the first two counts of incest and 5 years imprisonment for the third count, giving a total cumulative effect of 17 years imprisonment. In passing sentence, his Honour observed that:

"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."

16. I agree with his Honour's observation, especially in relation to the impact an offender's action may have on the wider and extended family relationships. In Papua New Guinea, we live in extended family communities and when a case of incest occurs, there is no doubt in my mind that it may lead to disharmony, disunity and even fights within the extended family circles. Your interview with the police as contained in the record of interview showed that your wife's clan captured you as you tried to escape to Mt Hagen after committing the offence. To my mind, this is the impact your action has had on the extended family and you should be ashamed of yourself.

17. Fourthly, there is a big age difference between you and your daughter. You are 36 years old and she is 17 years old at the time of the offence. The age difference is 19 years. It means, you daughter is a young girl and you were expected to be older in years and wiser. To my mind, this is another aggravating feature of this case and I will hold it against you.

18. Fifthly, the offence you have committed is prevalent. One just has to stop for a moment and look at the record of past cases that have come before the National Court and even on appeal in the Supreme Court and would appreciate the concern of the Court. The number of incest cases has increased. This factor aggravates your case.

19. The State has submitted that because there are past incidents of sexual intercourse between you and your daughter, they should be held against you. These past incidents suggest a case of persistent sexual abuse of your daughter by you. However, I am of the view that they should not be taken into account as circumstances of aggravation because they are facts giving rise to separate offences of which you have not been charged.

20. Why the State did not indict you with additional counts of incest is only within its knowledge, but from the allegations put to you on arraignment, the State said that it was unable to ascertain the precise details of the past incidents of sexual intercourse between you and your daughter. That may be the reason for not indicting you with additional counts of incest. Be that as it may, I am not inclined to hold these past incidents of sexual intercourse between you and your daughter against you: see Marcus Pitmete's case (supra) and John Baipu -v- The State (2005) SC792.

21. Further, I am of the view that threats of violence to secure your daughters submission to your demand for sex should not be held against you because this factor suggest a non consensual sexual union between you and her. As I observed above, consent is not an element of the offence of incest, hence whether or not there was consent seems to suggest a more serious offence than incest, possibly rape under section 347 of the Criminal Code, Ch 262. Again, why the State declined to indict you for rape is a matter within its own knowledge. Nonetheless, and for the reasons I have given, I decline to take into account your threats of violence against your daughter in my assessment of an appropriate sentence for you.

22. Turning to the mitigating factors in your case, one matter that favours you is that, according to the Medical Report of Mendi General Hospital dated 26th January 2010, your daughter did not sustain any physical injury from the sexual intercourse. The other matter that favours you is that, your daughter did not fall pregnant. In my view, this significantly operates in your favour because as noted, in Waninara Judas Liligau's case (supra), the offender was sentenced to 6 years imprisonment for the first count, a further 6 years for the second count and a further 5 years imprisonment for third count because he impregnated his daughter and she bore a child.

23. The other matters operating in your favour are your early guilty plea, your co-operation and admission of the offence to the police during investigation, your being a first offender and your remorsefulness. I take all of them into account. I should also say, your guilty plea has prevented your daughter from coming before the Court to testify against you; to face you in Court and re-live the bad memories of the ordeal. You have also saved the Court's time and expense to conduct a full trial to determine your guilt.

ORDERS

24. Taking all these matters into account, I consider that a punitive and deterrent sentence is called for in your case. You are therefore, sentenced to 5 years imprisonment in hard labour less time spent in pre-trial custody. Computing the pre-trial custody period from 20th January 2010 to today is about 11 months. Deducting that period from the head sentence of 5 years gives a balance of 4 years and 1 month for you to serve in prison.

Sentence accordingly.

___________________________________________________

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