Samson v The State [1998] PGSC 34; SC575 (1 October 1998)

Unreported Supreme Court Decisions

SC575

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR 37 OF 1998
JOEL SAMSON - APPELLANT
V
THE STATE - RESPONDENT

Lae

Woods Injia Akuram JJ
30 September 1998
1 October 1998

CRIMINAL LAW - judicial review of sentence - incest - sentencing principles – plea of guilty – brother and sister – range of sentences.

Cases Cited

Dadabu Dabu v The State [1998] Unreported SCR 26 of 1997

Mitige Neheye v The State [1994] PNGLR 71

Counsel

Appellant in person

R Auka for the State

1 October 1998

WOODS INJIA AKURAM JJ: The appellant is seeking review of sentences of 3 years and 2 years applied cumulatively for two counts of incest by Sevua J in November 1997 following pleas of guilty. This is a matter of judicial review as the application was filed out of time to appeal.

The facts are that the appellant, aged about 17 years, had threatened his 15 year old sister who was to some degree mentally retarded and had sexual intercourse with her in their house. Then the next day he had threatened her again and ordered her to the chicken house and forced sexual intercourse on her again. The matter came to light about a week later when he had said he wanted to do it again and she had refused and had packed up and was leaving the house when her father asked her why she was leaving and she said because her brother was having sex with her.

The grounds of appeal are that the appellant states he is too young to be in the gaol and fears for the bad influence he is being subjected to in the gaol, and also he is the eldest in his family and they rely on him for a lot of the garden work and also he feels he has some mental problems.

The trial judge when considering sentence noted that such an act within the family can cause a lot of disharmony and social problems within the family, he also noted from the evidence that the appellant appeared to be an impatient and violent young man with his parents and appeared to express no remorse to his family and sister for what he had done, he seemed to be more concerned with himself rather than with his sister’s well being. The judge also noted the rising concern in the community against such sexual offences against women and girls. He ruled that the two counts are not necessarily part of the same transaction and can be looked at separately and by making the two sentences of 3 years and 2 years cumulative it is not excessive seeing that sentences of 7 years have been imposed in cases of incest.

And we note that the Supreme Court has in a number of cases noted the seriousness of the crime of incest. Thus in Mitige Neheye v The State [1994] PNGLR 71 the Supreme Court noted that an act of incest committed without consent or by force amounts to rape and it is valid to apply the tariff for rape in such cases, and we note here that the sister did not consent to the sexual intercourse but was threatened by her brother, and even worse, was mentally retarded. And in Dadabu Dabu v The State SCR 26 of 1997 heard in June 1998 the Supreme Court confirmed a sentence of 7 years for a number of counts of incest by a brother with his sister in a consensual situation.

One feature from many of these incest cases is that once a man has committed one act of incest against a daughter or a sister he repeats and this was the situation here as the matter came to light when his sister was trying to leave the home to go and live somewhere else to get away from her brother. This highlights the importance of stopping these acts of incest as soon as discovered because they tend to repeat and suggests that 2 counts can be as just serious as many.

We find that the trial judge made no errors in imposing the two sentences of 3 years and 2 years and making them cumulative and there are therefore no special circumstances to warrant this court interfering with the sentences by way of judicial review.

We dismiss the application for judicial review.