State v Batari [2017] PGNC 317; N6966 (20 June 2017)

N6966

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 770 OF 2017

THE STATE

V

AUGUSTINE BATARI

Bialla: Batari, J

2017: 15, 20 June

CRIMINAAL LAW – sentence – incest – two counts of charged - accused committed incest against daughter on two occasions resulting in daughter falling pregnant – aggravated factor - offence of incest – reduced seriousness of – plea - hardship experienced following the commission of the offence – properties destroyed in retaliation – sentence of --- imprisonment appropriate

Cases cited:

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Tremellan v The Queen [1973] PNGLR 116
Wari Mugining v R [1975] PNGLR 352

Counsel:

A. Bray, for the State

D. Kari, for the Accused

SENTENCE

20 June, 2017

1. BATARI J: The accused and I are not related albeit, from the same but different grouping of the Nakanai tribe. The only common interest is the surname and that is not unusual. So I can deal with his case.
   
2. Augustine Batari, you have been convicted of incest, an offence under s. 223 (1) of the Criminal Code. This is your sentence. The maximum sentence for the crime of incest under the 2002 amendment is 7 years imprisonment, a determinate maximum term from the indeterminate penal servitude of life imprisonment under the old provision of the Criminal Code.
   
3. This suggests, incest is now a misdemeanor, regarded in many judicial systems as a less serious type and form of crime than a felony. Whatever the rationale for the devaluation of criminal liability for incest is, I think the intention of Parliament is to recognised and treat incest as more of a moral issue in a cultural community having its origin from biblical teachings. In particular, the Book of Leviticus in the Old Testament in Chapters 18 and 20 deal with laws of sexual morality and punishment for breaking the law as a cultural and moral issue. The penalty ranged from ostracism to death.
   
4. Similarly, the community in a cultural context frowns upon and abominates incest where a father sleeps with his daughter, a brother with his sister or a mother with her son. And in some community, it is serious taboo for relatives of the same blood or clan to sleep together or marry. This is particularly so for the Nakanai tribe of West New Britain Province. Dire consequences commonly follow and compensation demands are sanctioned to restore peace, harmony and relationships.
   
5. In this case you sexually violated your own daughter twice resulting in a pregnancy. The first occasion occurred on a Saturday, sometime in August, 2016 at Kai village, Central Nakanai. Your teenage daughter FB went to the nearby stream to do the family dishes and you followed a little later. You took her into the bushes and sexually penetrated her. The second occasion occurred in the night in September, 2016. FB was already asleep when you told your wife to wake her up to accompany to fish in the nearby creek. While returning home, you again sexually violated her. On both occasions, you forced her into submission and threatened to hurt her if she reported. FB was then 16 years old.
   
6. The facts clearly showed outrageous, disgraceful acts of a mistrusted, deceptive father. Your conduct involved serious breaches of trust. On both occasions, elements of rape were present. Luckily for you, prosecution had not preferred charging rape on the complainant’s assertions.
   
7. Your persisted idiocy resulted in your daughter’s pregnancy. This adds to the gravity of your conduct. To ensure that you are adequately punished and that you do not repeat the same offence against the victim or any of your other daughters, I have decided to impose a long term of imprisonment.
   
8. I take into account that you have pleaded guilty early to both counts of incest. Your guilty plea has support from a background of cooperation and early admissions of criminal conduct to the police. I also make allowance for your good background. Your compensation payment of K4, 000.00 together with one mature pig, supplemented with garden food to your daughter’s side is also in your favour. I also accept your expression of remorse as genuine because it is consistent with your conduct following the commission of the offence, your co-operation and admissions to police and your guilty plea.
   
9. From the records, your personal circumstances represented enterprising, productive sustenance with generous list of personal and family accomplishments. Some properties you have generated were destroyed, damaged or repossessed by relatives from your daughter’s side. They also set your buildings on fire, a criminal act of greater magnitude to your criminal conduct. I accept as genuine, your grievance and apprehension of being unfairly punished outside the formal system of justice. I consider too, that those responsible for the atrocities against you should be investigated for prosecution. No one should feel he or she is above the law.
   
10. In order to avoid any misapprehension of double punishment, I propose to do two things: (i) suspend part of the sentence I will shortly impose on you, and (ii) recommend that those responsible for the destruction and looting of your properties pay for their criminal conduct and that police take appropriate action to investigate and charge those responsible.
    
11. As to whether the sentences for each count of incest should run cumulative or concurrent, I have decided to impose cumulative sentences albeit; the general principle being, that sentences for a congeries of offences committed in the prosecution of a single purpose or arising out of the same set or closely related facts ought to be made concurrent. See, Tremellan v The Queen [1973] PNGLR 116.
    
12. In this case, the two counts of incest arose out of the same or similar set of facts. The sentences should be made concurrent. However, the reason I opted for cumulative sentences is simple. It is not an inflexible rule of law that sentences for series of offences in the prosecution of a single purpose should be made concurrent. Whether a sentence is made cumulative will depend on the particular circumstances of each case: Wari Mugining v R [1975] PNGLR 352. The addition of sentences to be served cumulatively should send out a strong message of the criminal conduct that it will meet with severe penalty.
    
13. I bear in mind too that the total cumulative effect of the sentences to be imposed must not exceed the statutory maximum penalty for incest or any statutory penalty for that matter. Nor should the total sentence extend outside what might be regarded as the top of the range for that particular offence in the circumstances of the particular case: Acting Public Prosecutor v Konis Haha [1981] PNGLR, 205.
    
14. In this case, the aggravating features of the case warrants terms of imprisonment above the statutory limit of seven years. A term of 15 years made up of sequential sentences for the two offences would be appropriate. I propose cumulative sentences as the offences were separated by time. A term of punishment higher than the prescribed maximum penalty is however not permissible. I will nonetheless impose a term closer to the maximum sentence, taking into account your plea of guilty.
    
15. Balancing all the facts for and against you, the appropriate sentence on the first count is two years and four years on the second count to be made cumulative. So, the total head sentence is six years. I will suspended three years for you to serve on good behaviour bond after you have served three years. The condition of the bond is that you will stay out of trouble and be of good behaviour for three years with surety in the sum of K1000.00 and six months imprisonment in the event of a breach of the good behaviour bond.
    
16. I also recommend in the light of retaliatory violence against the prisoner that police investigate and lay charges as appropriate against those involved. This action should inform and warn like-minded adversaries not to take the law into their own hands.

_____________________________________________________________
Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Accused