Inara v The State [2002] PGSC 6; SC688 (10 July 2002)

SC688

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 66 OF 2000

Between:

DORI INARA
Appellant

And:

THE STATE
Respondent

Waigani: Los J, Jalina & Sevua JJ.
2001: 31st August
2002: 10th July

CRIMINAL LAW – Particular offences – Incest – Father and daughter aged about 17 years – Plea of guilty to two separate acts of incest - Both non-consensual acts but aggravating factors such as threats with weapons and pregnancy of victim not available in present case – Concurrent sentence of 12 years for two separate acts of incest – Sentence manifestly excessive – Sentence should be reduced to 10 years - Criminal Code s.223.

Cases cited:

Mitige Neheye –v- The State [1994] PNGLR 71.
The State –v- Arthur Tamti, Unreported National Court Judgment N1878 and dated 30th August 1999 (Kokopo).
The State –v- Francis Liro, Unreported National Court Judgment, May 1999 (Kavieng).
Grayson Andowa –v- The State, Unreported Supreme Court Judgment SC 576 dated 1st October, 1998 (Lae).

Counsel:
F. Pitpit for the Appellant
D. Mark for the Respondent

10th July 2002

BY THE COURT: The Appellant appeared before the National Court on 17th August, 2000 and pleaded guilty to two counts of incest with his daughter who was then aged about 17 years and attending Marianville High School outside the National Capital District. Those offences were committed at Morata No. 2 in the National Capital District on 25th March, 2000 and 17th April, 2000 respectively. He was sentenced to 12 years imprisonment on each count. Those sentences were then ordered to be served concurrently.

He has appealed against severity of sentence. His grounds are set out in his Notice of Appeal which he filed himself from prison. They are that he apologised and asked for mercy and forgiveness. He was also concerned about the difficulties that his family would face in future.

Mr. Pitpit, who appeared for the Appellant, has submitted that the trial judge erred when he did not confine himself to facts put to the Appellant on arraignment but took into account other factors which were in the depositions.

Whilst we note that the grounds raised by the Appellant personally have some merit, we do not consider that the submissions by Mr. Pitpit have merit. Whilst we also accept that a judge in a criminal case is required by law to disregard hearsay evidence in the depositions which are tendered after an accused person pleads guilty, the trial judge cannot be confined only to the facts put to the Court by the State Prosecutor for purposes of arraignment when determining the sentence he should impose merely because the accused had not been given an opportunity to respond or answer to those facts.

If Mr. Pitpit’s submissions are to be accepted, then the State Prosecutor might as well put the entire evidence as contained in the depositions to the accused to enable him to respond. The function of arraignment is to put brief facts to the accused and not the evidence against the accused. He responds to the evidence at the relevant stage of the trial if a case proceeds to trial. In a guilty plea case, an accused person responds to the charge and the facts constituting the charge. He does not respond to the evidence. We are therefore of the view that the submission by Mr. Pitpit which we have just alluded to, has been misconceived.

Before we deal with the Appellant’s grounds of appeal, however, it is necessary to consider the sentencing trends in incest cases in the past. We are certain that judges have dealt with many incest cases throughout the country but the following cases are the ones that involve father and daughter which readily come to mind. In Mitige Neheye –v- The State [1994] PNGLR 71, the Supreme Court upheld a sentence of 7 years where the appellant committed incest with his 15-year-old daughter.

In The State –v- Francis Liro, Unreported National Court Judgment in May 1999, in Kavieng, Jalina, J sentenced the prisoner to 13 years imprisonment for committing incest with his two (2) daughters who were students at Madina High School outside Kavieng.

In The State –v- Arthur Tamti, Unreported National Court Judgment, N1878 and dated 30th August, 1999 in CR 967/98, Jalina, J also sentenced the prisoner to 8 years imprisonment for committing incest with his daughter after threatening her with a bush knife. She became pregnant and gave birth to a child.

In Grayson Andowa –v- The State, SC 576, the Supreme Court dismissed an appeal against a sentence of 7 years for incest by a father against his 17-year-old daughter where a knife was used to threaten the victim. In that case, the Supreme Court said that one feature from many of the incest cases was that once a man had committed one act of incest against a daughter or sister he often repeats it.

In fact in the present case, the two counts of incest arose out of the appellant’s repeated acts. So it highlights the importance of stopping these acts of incest as soon as discovered because they often tend to be repeated. An act of incest involves the breach of the sacred trust that exists between very close relatives. Thus, two counts can be as serious as one because they often lead to many acts if they are not stopped. Thus the need for stiff penalties as deterrent.

With regard to the sentences imposed by the trial judge in the present case, we note that the Appellant pleaded guilty. He also expressed remorse and that aggravating factors such as use of a weapon to frighten the victim as well as pregnancy are not present. We are therefore of the opinion that the trial judge, with respect, appears to have failed to take into account such mitigating factors when determining the appropriate sentence. The sentence we would consider appropriate in the circumstances would have been one of 10 years bearing in mind the prevalence of the offence of incest as is evident from the cases we have referred to above.

We accordingly allow the appeal, quash the sentence of 12 years on each count and substitute it with a sentence of 10 years on each count to be served concurrently.

The deductions of period in custody which were made from the sentence of 12 years, should now be made from the sentence of 10 years which we have imposed.
___________________________________________________________
Lawyer for the Appellant : Public Solicitor
Lawyer for the Respondent : Public Prosecutor