State v Kawar [2011] PGNC 22; N4234 (14 March 2011)

N4234

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 189 OF 2011

THE STATE

V

SAMUEL KAWAR

Daru: Kariko J
2011: 11 & 14 March

CRIMINAL LAW – SENTENCE – Incest – Father and daughter – Child born out of the relationship – Guilty plea – First offender - Custodial sentence warranted – Punitive and deterrent sentence

The offender pleaded guilty to committing incest with his eldest biological daughter, then 18 years old. It was a consensual relationship. The daughter became pregnant and gave birth to a child.

Held:

(1) The prosecution must exercise its independent discretionary power to lay charges with great care so that the appropriate penalty range is available to meet the facts of the case.

(2) Discussion on the need for legislative changes to provide alternative verdicts for sexual offences introduced by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002: The State v Kikia Solowet (2007) N3154 referred to.

(3) On a plea of guilty the offender will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions not contested by the prosecution: Saperus Yalibakut v The State (2006) SC890 followed.

(4) Incest is a serious offence that adversely impacts the family: The State v James Donald Keimou (2001) N2295 referred to.

(5) Sentence to be punitive and deterent.

(6) Sentence of 5 years imprisonment imposed, less the period in custody awaiting trial.

Cases cited

Goli Golu v The State [1979] PNGLR.653
The State v Francis Angosiwen (No 2) (2004) N2670
The State v Tikiria Amos (2005) N2614
The State v Kikia Solowet (2007) N3154
Saperus Yalibakut v The State (2006) SC890
The State v James Donald Keimou (2001) N2295

Counsel

D Mark, for the State
P Palek, for the Accused

14 March, 2011

1. KARIKO J: The offender began an incestuous relationship with his eldest daughter Konar after he became frustrated that he could not have sexual intercourse with his wife who was then suffering a stomach illness. One day in June 2007 when the offender and his daughter went fishing he tried to have sex with her but she initially refused. On the way home she changed her mind, held his private parts, stimulated him and this led to them having sexual intercourse. This consensual affair continued and resulted in the daughter becoming pregnant and giving birth to a baby girl.
   
2. The offender has pleaded guilty to a charge of incest and appears today for sentence.
   

Allocatus

3. On allocatus, the offender expressed remorse for committing the offence, and asked for leniency.

Offender's details

4. The offender comes from the Morehead area of the Western Province. He is aged 58 years, is married and has a large family of 10 children. His parents are deceased. He did not receive any formal education and is a member of the Evangelical Revival Church. He is a subsistence villager engaged in gardening, fishing and hunting.
   

The law

5. A fundamental principle of sentencing is that the maximum penalty for an offence should be reserved for the worst category of that offence: Goli Golu v The State [1979] PNGLR.653. The offence of incest carries a maximum penalty of 7 years imprisonment.
   
6. The maximum penalty has been imposed in cases involving father and daughter: The State v. Francis Angosiwen (No 2) (2004) N2670; The State v. Tikiria Amos (2005) N2614.In these two cases, the facts disclosed the offence of rape where sexual intercourse was effected through force and threats with a weapon. In the latter case, the victims were two daughters and sexual indignities were committed. In discussing sentencing, the judges in these two cases expressed the strong view that the current penalty for incest is inadequate and does not properly reflect the gravity of the offence.
   
7. The law regards sexual offences against children very seriously. The penalties established by law demonstrate this.
   
8. And I appreciate the sentiments expressed by Sevua J in The State v Tikiria Amos (supra) and Kandakasi J in The State v Francis Angosiwen (No 2) (supra) that the penalty for incest is absurd as too low. It seems to me that the changes brought about by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 are such that the prosecution must exercise its independent discretionary power to lay charges with great care so that the appropriate penalty range is available to meet the facts of the case. So if the evidence in an otherwise incest case reveals sexual intercourse through force or threats, then rape (section 347) should be charged; and if the victim is under 16 years then a charge under section 229A (sexual penetration of a child) or 229D (persistent sexual abuse of a child) ought to be considered.
   
9. I offer these remarks while bearing in mind the obiter of Cannings, J in The State v Kikia Solowet (2007) N3154 when dealing with an offence under section 229D (persistent sexual abuse of a child), queried whether the offences of sexual penetration (section 229A) or sexual touching (section 229B) were available as alternative verdicts. His Honour observed:
   

"There is no general principle that if a person has been charged with a specific offence and, though not all elements of it are proven, all elements of a lesser offence are proven, the court can enter a conviction for the lesser offence.

This is something that the Parliament needs to carefully look at. There should be a special provision in Division IV.2A allowing the court to enter convictions for lesser offences where all the elements of a more serious offence have not been proven."

10. I agree with the comments and the recommendation and would add that Parliament also consider enacting an alternative verdict provision that would allow the court to find rape where the prescribed age is not proved on charges under sections 229A, section 229B, section 229C (indecent act directed at a child), section 229D, and section 229E (abuse of trust, authority or dependency). Until such an amendment is legislated, a prudent prosecution would include in an indictment all the possible charges open on the evidence. But I acknowledge that there are many considerations that the prosecution take into account when deciding on an indictment.
    

Factors in mitigation

11. In deciding sentence in the present matter, I take into account the following in the offender's favour:
    
    • (a) He entered an early guilty plea.
      
    • (b) He co-operated with the police and admitted the offence when interviewed.
      
    • (c) He has no prior convictions.
      
    • (d) The daughter was an adult, aged 18 years when the incestuous affair began.
      
    • (e) I accept that the incestuous relationship was a consensual one and there was an element of seduction by the daughter, even though the daughter's statement suggests forceful sexual intercourse. Where an offender pleads guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution: Saperus Yalibakut v The State (2006) SC890.
      
12. While the offender said he was sorry for committing the offence, he has not apologized to his daughter and in fact there are copies of letters he has written while awaiting trial that express his love for her and show he still regards her as a wife. I am not prepared to find that he has expressed genuine remorse.
    

Aggravating factors

13. Factors weighing against the offender are that:
    
    • (a) The offence was committed with his biological daughter which in my view falls under the worst of incestuous relationships prescribed by law.
      
    • (b) He impregnated his daughter.
      
    • (c) There was a large age difference - he was 56 years old while his daughter was 18 years old at the time of the offence.
      
    • (d) The offence of incest has steadily increased over recent years and is becoming more common.
      

Sentencing remarks

14. Across this country, the community condemns sexual acts with one's own family members, immediate or extended. Prior to the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, the offence of incest could only be committed within limited family relationships and this seemingly was based on the Western definition of incest. Parliament changed this to more appropriately reflect the views of the PNG society and elaborated on the prohibited degree of family relationships (which involve trust and dependency).

15. The offence of incest like other sexual offences committed on family members has an overwhelming impact on the family. In The State v James Donald Keimou (2001) N2295 Kandakasi J described this impact as follows:

"... it no doubt destroys trust, the security of the home and leaves for ever lifetime scars for the victim and a bad stigma for him or herself and his or her family and relations. Love gets replaced by hate and trust with distrust. Insecurity replaces security and fear replaces confidence in the family unit and the immediate community. Happiness, peace and joy are replaced with shame, ridicule and unhappiness in the family unit and in the wider community. If the victim gets infected with sexually transmitted diseases, his or her health is replaced by sickness".

I adopt and approve His Honour's remarks.

16. Clearly, the appropriate sentence must be a custodial term to act as a punitive and deterrent sentence.

Sentence

17. In all the circumstances, I consider the appropriate sentence to be 5 years imprisonment. I deduct the 1 year 6 months 2 weeks the offender has already spent in custody for this matter which leaves a balance of 3 years 5 months 2 weeks to be served in hard labour at Ningerum CIS.

_____________________________________

Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused