State v Kainamale [2016] PGNC 234; N6436 (12 February 2016)

N6436

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 722 OF 2014

THE STATE

V

JONATHAN KAINAMALE
Alotau : Toliken J.
2015 : 07^th December
2016 : 12^th February

CRIMINAL LAW – Sentence – Incest – Five Counts –Plea –Father/biological daughter relationship – Offence occurred over period of just over one week - Not worst offence – Mitigating and aggravating factors consider - Purposes of Sentence - Deterrence and separating offender from victim - Notional total sentence of 25 years - Concurrent sentence appropriate in circumstances - Sentence of 6 years less period in pre-trial custody - No suspension - – Criminal Code Ch. 262, s 223

Cases Cited:
The following cases are cited in the judgement:-
Aihi v The State (No. 3) [1982] PNGLR 92
Golu v The State [1979] PNGLR 653
MitigeNeheye v. The State [1994] PNGLR 71
The State v Francis Angosiwen (No.2) (2004) N2670
The State –v- Douglas Natilis(unreported and unnumbered judgement (2004)
The State v Jimbe(2012) N5161
The State v. Tikiria Amos (2005) N2614
The State v Mandari (2007) N4969

Counsel:
H Roalakona, for the State
P Palek, for the Accused

SENTENCE

12th February, 2016;

1. TOLIKEN J: Jonathan Kainamale, on the 07th of December 2015 you pleaded guilty to an indictment charging you with five counts of incest thereby contravening Section 223 (1) of the Criminal Code Ch. 262.The charges are that -

Count one: "... that on 5th day of November 2013 at Vakuta Island ... [you] engaged in an act of penetration with a close blood relative one Judy Kainamale being [your] biological daughter."

Count Two: "... that on 07th day of November 2013 at Vakuta Island ... [you] engaged in an act of penetration with a close blood relative one Judy Kainamale being [your] biological daughter."

Count Three: "... that on 09th day of November 2013 at Vakuta Island ... [you] engaged in an act of penetration with a close blood relative one Judy Kainamale being [your] biological daughter."

Count Four: "... that on 10th day of November 2013 at Vakuta Island ... [you] engaged in an act of penetration with a close blood relative one Judy Kainamale being [your] biological daughter."

Count Five: "... that on 13th day of November 2013 at Vakuta Island ... [you] engaged in an act of penetration with a close blood relative one Judy Kainamale being [your] biological daughter."

THE FACTS

2. The following facts were put to you on arraignment which admitted. I am going to sentence you these facts. On the 04^thNovember 2013, you and your biological daughter Judy Kainamale travelled to Vakuta Island, Kiriwina to sell betelnut. While at Vakuta you were accommodated by one Simon and his family. The two of you slept in one room.
   
3. During the night of Tuesday 05^th of November 2013 you sexually penetrated your daughter. You then again sexually penetrated her on Thursday 07^{th November}, Saturday 9^th November, Sunday 10^thNovember and lastly on Wednesday 13^th November after which the two of you returned home to Esa'ala.
   
4. Your sexual relationship with your daughter became known when she told her teachers about it, after they had questioned her why she had returned late to school. The matter was then reported to the police resulting in your arrest.

THE LAW

5. The offence of incest is provided by S. 223 of the criminal Code Act (as amended). It says:

223. Incest

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

Penalty: Imprisonment for a term not exceeding 7 years.

(2) 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.
(3) ...

5. This, however, does not mean that you will be sentenced to the maximum period of 7 years for each count. This is because the maximum penalty for any offence is always reserved for the worst type of cases. Furthermore, what a sentence will be will depend entirely on the merits and the peculiar circumstances of each case. (Golu v The State [1979] PNGLR 653; Aihi v The State (No. 3) [1982] PNGLR 92)
   

SENTENCING ISSUE (S)

7. I must therefore determine a sentence for you that is appropriate to the circumstances of your case. To do that, I must determine firstly whether or not your case falls within the worst category of incest. If I find that it is, then I have the discretion to impose the maximum. If not then I can impose a lesser penalty.

ANTECEDENTS
8. You are 50 years old and come from East Waluma village, Ferguson Island, Esa'ala District of the Milne Bay Province. You are now 50 years old and married with eight children. You yourself are the second born in a family of five. Your father is now deceased but your mother is still alive. You are a member of the United Church. You have an 8th Grade education but have never been formerly employed, though, prior to your arrest you were a Ward Recorder in the Dobu Local Level Government Council. This is your first offence, At the time of your conviction last December you had been in custody 1 year 11 months and 3 weeks.

ALLOCUTUS

9. In a prepared Statement which you read to the Court you said the following:

I Jonathan Kaninamale, I would like to confess before God, for he is holy, righteous, pure and just. I have broken the law on sexual offence with my biological daughter Judy Kainamale. I also confess in the presence of this Court and Court officials and to the State for [breaching] of the law of my country PNG, and my victim Judy K and my families for the offence I have done to her.

Your Honour, I Jonathan Kaimale of Alageda village, Waluma East Ward, Dobu LLG in Esa'ala District, I was charged under incest for doing sexual penetration with my daughter Judy Kainamale on my request and her agreement in early November 2013 at Kiriwina on Vakuta Island.

With this short confession I humbly apologise to the Court and the Police for your time in my case. I also apologise to the State, my country PNG and my community in the society for breaching the State laws of my country.

Finally I apologise to my victim Judy K and families for the offence I committed to her and I want to say that I am very very sorry for what I have done.

On the brief history of how the offence started, when she was doing her schooling [while] with my sister Flora she got pregnant. With this if it pleases your Honour to grant my humble request. And my wish is that this Court gives me mercy and pardon and discharge me to go home on the following reasons -

1. I was the only one in our village who supports two families, in finance side and other family matters and problems arising in our village. No.1 family - My wife and children who always come to the Corrective Institution when they face problems and for information they want to know. No. 2 Family - My old mother with two sisters in the village. My brother is a Pastor and went out for his work. One of my sister's husband died and my three nephews are still schooling.

2. My victim Judy is doing Grade 11 next year. She asked me if I could support her in some of her needs for school.

3. Finally plead to the court if it can give me probation or good behaviour bond so that I could serve my time at home and pay compensation to my victim and families.

With these I now promise to this Court that I will not do any offence such as this in my life time again. Thank you...

SUBMISSIONS

10. Your lawyer Mr. Palek submitted that your case cannot be consider a worst instance of incest though he conceded that it involved a serious breach of trust, that there is a huge age difference between the two of you - you were 49 years old and the complainant was only 17 years old. He said after the complainant became pregnant she was shunned by her mother and other siblings. You were the only one supporting her and as a result the two of you consequently became very close resulting in the sexual relationship between the two of you. You, however, had the complainant re-enrol in school and at the time of your conviction she was doing Year 10 at Hagita Secondary School. Mr. Palek said that while your action cannot be excused there are significant mitigating factor (I will refer to this later) and therefore your sentences should be in the between 4 - 6 years to be served concurrently. Counsel then invited the Court to consider suspending part of your sentence and place you on probation.

11. Ms. Roalakona on the other hand, in behalf of the State submitted that an appropriate sentence for you should be between 5 - 7 years. This because of the prevalence of the offence, this was not a one-off incident, but one where you sexually penetrated your daughter on five occasions, there was a serious breach of trust not mention the shame the complainant will have to live with and that there was a huge age difference between the two of you. Counsel submitted that in the circumstances your sentences should be served consecutively.

12. A Pre-Sentence Report (PSR) was filed in your behalf. The report records among other things your reason for having sex with your daughter - that you fell in love with her when you witnesses giving birth and further seeing her naked during her sleep. While you claimed that the complainant consented she actually denied that when she was interviewed by mobile phone by the Probation officer. The report reveals that she had been living with a school mate of hers at Asegamwana village on Ferguson Island and has refused to return to her family because she remains very hurt by your criminal conduct against her. The report does not make any specific recommendation but left it to the court to impose an appropriate sentence.

13. I now turn to the mitigating and aggravating factors of your offence.

MITIGATING AND AGGRAVATING FACTORS

14. In your favour I take the following factors:

1. You pleaded guilty to the offence hence saving time for the court in running a trial and further saved the complainant from re-living her experience had we ran a trial.
2. You co-operated with police by making early admissions to them
3. You are a first time offender
4. You have shown some remorse for your offence
5. You did not use any force or violence
6. You did not cause any injury nor did you infect her with a Sexually Transmitted Infection (STI) or make her pregnant.

15. Against you, though, I find the following aggravating factors:

1. This was not an isolated incident. Rather you committed the offence on five occasions within a period of over a week.
2. There was serious breach of trust as the complainant was your own biological child.
3. The rewash a huge age difference of 32 years between the two of you.
4. The offence is a very prevalent one.
   

PRINCIPLES OF SENTENCING/TREND

16. In The State v Jimbe (2012) N5161I sentenced the prisoner to the to the maximum penalty of years. He had been previously jailed committing incest on his half sister giving her a child. Upon his released he resumed his relationship with his sister. In that case I made the following comments:

9. The crime of incest is a serious attack on societal norms and morals and more so the family unit. As noted by this court on the State-v- MKB [1976]PNGLR 197, the true rational of the criminal law in respect of incest is to enforce our moral values and beliefs and therefore sentences given to offenders must reflect these and the public’s abhorrence of the offence.

10. Sevua J. aptly described the crime of incest as driving a wedge between families and creating great disharmony within a family unit and that it breaks up marriages and sends children and mothers away from the matrimonial home, perhaps for some, into poverty: The State v. Tikiria Amos (2005) N2614. The crime of incest was once punishable by life imprisonment. Parliament, however, despite the ever increasing occurrence of the offence, in its wisdom, reduced the penalty to the current 7 years (Sexual Offences and Crimes Against Children) Act 2002(No.27 of 2002) s. 13).

11. This has attracted judicial comment by judges of this court, notably by their Honours Sevua J. (as he then was) and Kandakasi J. Kandakasi J. went to the extent of saying that Parliament had made a mistake in doing so: The State v. Tikiria Amos (2005) N2614; The State –v- Douglas Natilis (unreported and unnumbered judgement, 2004); The State - v- Francis Angosiwen ( No.2) (2004) N2670). Whether or not Parliament did in fact make an error is moot given the presumption of law that Parliament makes no error. However, the sentiments expressed by the judges are valid and ought perhaps to be taken seriously by the law- makers because, to not do so would be tantamount to condoning a social ill and criminal behaviour that cuts right through to the very fabric of the family unit.

12. Criminalizing sexual intercourse within the degrees of family relationships prescribed by s 223 (2) of the Code is the society’s expression, through Parliament, of its disapproval of this type of behaviour. The crime of incest has increased markedly over the years and unless Parliament does something about increasing the penalty, this abhorrent behaviour will continue to flourish to the detriment of many families and the society as a whole. Until that happens, the State through the Public Prosecutor must, as suggested by Kariko J. in The State v Samuel Kawar (supra), exercise its independent discretion to lay charges with great care so that the appropriate charges are laid in circumstances where evidence establish rape (Section 347) or sexual penetration of a child under 16 years (s 229A) or persistent sexual abuse of a child (s 229D), so that appropriate sentences can be imposed on the guilty.

13. So while Parliament on its part may have seen fit and justified to reduce the penalty to a mere seven years, the courts are duty- bound to enforce and apply the law as they find it as best as they can. The courts have a duty to society to impose sentences within its powers that reflect the gravity and general abhorrence and distaste with which virtually all societies in Papua New Guinea view the crime of incest. While the courts are not judges of morality they have a moral and legal duty to enforce the people’s will if they so choose to legislate against behaviours that are against morality, such as incest so that standard acceptable behaviour is maintained.

14. To paraphrase Martin Luther King Jr., speaking of the Christian Churches’ duty to uphold Christian morals - which I find holds equally true for the judiciary’s duty to uphold the law - the courts must not be like a thermometer, merely recording the mood in the society. Rather they should be like a thermostat, regulating, preventing and discouraging deviant criminal social behaviours that offend against morality and societal values. And the courts do this by imposing appropriate sentences, in appropriate cases, that reflect the seriousness and abhorrence with which the society views certain criminal behaviour.
    

17. To that end the Supreme Court in Mitige Neheye v. The State [1994] PNGLR 71, set down sentencing guidelines for the crime of incest. Some of what the court said there have been overtaken by the amendments to the Code, but much of what it said are still very much appropriate and binding. The court held:-

(1) ...
(2) ...
(3) An act of incest committed without consent amounts to rape, and it is valid to apply the tariff for rape on this type of offence
(4) In sentencing, a distinction must be drawn between a consensual relationship and one based on force or intimidation.
(5) The following are matters that should be taken when considering sentences on incest:

• (a) The relationship of the parties;
• (b) The age of the victim;
• (c) If force, threats or intimation were involved, and if so, the degree of such force, threat or intimidation;
• (d) Whether it was consensual between adults;
• (e) Over what period of time the incidents (if more than one) occurred;
• (f) The number of times;
• (g) Whether pregnancy ensued by reason of the defendant failing to take contraceptive measures;
• (h) The comparative ages.

(6) The following are other aggravating factors regardless of the age of the victim:

• (a) If the victim has suffered physically or psychologically from the incest;
• (b) If it continued over a period of time;
• (c) If the incest had been accompanied by perversions abhorrent to the victim;
• (d) If the defendant has committed similar offences against more than one victim.

18. In this case the Appellant had pleaded guilty to 4 counts of incest with his daughter. He was 39 years of age married with 2 wives and 8 children. The victim was the 4th child of the 2nd wife and was aged 15 years at the time of the offence. The victim became pregnant and from the evidence it appears the father took the victim to a doctor to confirm the pregnancy. The appellant was sentenced to 7 years imprisonment. His appeal against the severity of the offence was dismissed.

19. Both lawyers had cited several cases to me to assist me in arriving at an appropriate sentence for you. I find the case of The State v Mandari (2007) N4969 (Cannings J.) to bear some similarities to the circumstances of your case. There the Appellant pleaded guilty to five counts of incest. He had sex on five occasions with his natural born daughter, causing her to become pregnant and give birth. He had originally pleaded not guilty but changed his plea after the close of the State’s case. The court there imposed the notional sentences of 4 years, 4.5 years, 5 years, 5.5 years and 6 years for each count for a total sentence of 25 years to be served cumulatively because the offence was committed over a period of 7 months. Then applying the totality principle a sentence of 14 years was imposed.

20. What then should be an appropriate sentence for you?

APPROPRIATE SENTENCE

21. At this point I must say that your case does not fall under the worst category of the offence. Bearing in mind the principles in Neheye v The State (supra) and those factors for and against you I must say though, that your case is not a trivial one because of the following reasons:

1. This was not an isolated incident. It happened over a period of over a week away from the scrutiny of your wife and your other children and other relatives for that matter.

2. You took advantage of your daughter's situation. Fair enough you may have been the only one who supported her after her mother and siblings turned their backs on her when she became pregnant. For that you must take some credit (Saperus Yalibakut v The State (2006) SC 890) but then again you were merely doing what you were and are morally and legally obliged to do and that does not include any expectation on your part to request let alone demand sexual favours from your daughter. You are therefore guilty of a serious breach of trust.

3. The complainant did not suffer any physical injuries, contracted a Sexually Transmitted Infection or become pregnant. And that sets your case apart from that of The State v Mandari (supra). However, there is no doubt at all in my mind that she is living with the stigma and humiliation of having been violated by her own father which may very well last for the rest of her life. You said that she consented - fact denied by the complainant. But even if she did, it is unlikely that such consent was freely because of her vulnerability at relevant time.

4. There is a huge age difference of 32 years between the two of you.

5. Lastly, this is a very prevalent offence.

22. Against all that, I do take into account your mitigating factors particularly that you pleaded guilty very early to your charge and in so doing you saved complainant embarrassment if she had come to testify.

23. A sentence in your case should serve two principles purposes. First, to deter you personally and to others as well and second, it must also serve to separate you from your daughter because, after having carnally known her, you would see her in a completely different light. Therefore she needs to be protected from you as sufficiently as possible.

24. In the circumstances I set a starting point of 3.5years for each of the 5 counts and the following notional head sentences. For count 1 = 4 years, Count 2 = 4.5years, Count 3 =5 years, Count 4 = 5.5 years, Count 5 = 6 years for a total of 5 years.

25. Now should these sentences be served cumulatively or concurrently? The offence was committed over a period of just over a week and whilst this may qualify for the sentences to run cumulatively I think that the circumstances justify the sentences to run concurrently instead.

26. That being the case you are therefore sentenced to 6 years imprisonment, which, despite your age is not in my opinion crushing on you. The period you spent in custody awaiting your trial will be deducted.

27. To achieve the purposes of your particular sentence - deterrence and separating you from your daughter - none of the balance of your sentence will be suspended.

Orders accordingly.

The Public Prosecutor : Lawyers for the State

The Public Solicitor : Lawyers for the Accused