Papua New Guinea Law Reports - 1983
[1983] PNGLR 283
N439
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
TORARAM LIPIRIN
Rabaul
McDermott J
9 September 1983
CRIMINAL LAW - Sentencing - Custom - Relevance - Use in conjunction with statutory penalty - Unlawful carnal knowledge - Customs Recognition Act (Ch. No. 19), ss 2, 3 - Criminal Code (Ch. No. 262), s. 19(1)(f)(ii).
The accused was convicted on a charge of unlawful carnal knowledge of a girl under the age of twelve years, which offence carries a penalty subject to the dispositive powers in s. 19 of the Criminal Code (Ch. No. 262) of life imprisonment. Evidence was given that the customary law in this case would impose a penalty of payment of 100 fathoms of tambu to the clan of the victim’s mother.
Under the Customs Recognition Act (Ch. No. 19), s. 4, custom may be taken into account in a criminal case only for determining the penalty ... or where the court thinks that by not taking the custom into account, injustice will or may be done to the person.
Held
(1)      For custom to be taken into account in determining penalty it must be relevant, operative and applicable in the society where the offence was committed.
(2)      Where custom is taken into account pursuant to the Customs Recognition Act (Ch. No. 19), s. 4, the judge may vary the sentence within the range given by law depending on whether custom mitigates or aggravates the offence.
Acting Public Prosecutor v. Uname Aumane and Ors [1980] P.N.G.L.R. 510 at 542 per Kapi J, adopted and applied.
(3)      In the circumstances the dispositive powers under the Criminal Code, s. 19(1)(f)(ii), should be exercised and the sentence imposed should be three years and six months imprisonment, reduced to three years and two months imprisonment if (1) traditional compensation of 100 fathoms of tambu is paid to the clan of the child’s mother; (2) the accused to enter into his own recognizance to be of good behaviour.
Cases Cited
Acting Public Prosecutor v. Uname Aumane [1980] P.N.G.L.R. 510.
Jadurin v. The Queen (1982) 7 A. Crim.R. 182; 44 A.L.R. 424.
Mamarika v. The Queen (1982) 63 F.L.R. 202; 5 A. Crim.R. 354.
R. v. Asis and Bitimun (Unreported judgment 765 dated 16 September 1970).
R. v. Iu Ketapi [1971-72] P. & N.G.L.R. 44.
R. v. Jim Kaupa (Unreported judgment 765 dated 25 September 1973).
Neal v. The Queen (1982) 149 C.L.R. 305; 56 A.L.JR. 848.
Trial
This was the trial of an accused on a charge of rape, as a result of which he was convicted of unlawful carnal knowledge of a girl under the age of 12 years. The case is reported in relation to sentence only.
Counsel
S. Passingan, for the State.
M. Isana, for the accused.
9 June 1983
MCDERMOTT J: The accused was indicted for rape on 27 October 1982. In opening the State case, the prosecutor alleged the act of intercourse took place by the use of force. However, in final submissions, it was conceded this allegation could not be sustained. The offence which emerged from the evidence was one of unlawful carnal knowledge of a girl under the age of 12 years and I so convicted the accused.
Before passing sentence, I alluded to a number of matters and I now publish my reasons in detail.
The prosecutrix gave evidence. She was a little girl, very shy and quietly spoken. She was born on 4 July 1974 and certainly looked pre-pubescent. I was satisfied she could be sworn and her evidence was given on oath. She was a very calm child and gave her account of the incident in a straightforward manner. I note that my impression of her demeanour is shared by the doctor who examined her the day after the incident. He found that her hymen had been ruptured. There appears to be no other injury or lasting ill effects.
It appears that the accused desisted, when after putting his penis into the girl’s vagina and lying on top of her, the girl said, “it is pain”.
This is a case where identification was not in issue. Both accused and girl came from Talvat village near Rabaul. He was no stranger to her. The offence happened near the village.
The accused is a young man, single, aged 22, educated to grade four standard and with some limited work experience. He has not been in trouble before. It was submitted the offence is not the worst of its type and I accepted that.
The parties are Tolais. Wesley Wanenara aged 49, a village court magistrate from Talvat, was called and gave evidence about customary punishment for this type of offence. By his status and age, I accept this knowledge of village ways. He said:
“The customary law in a case like this, the elders in the village should impose a heavy penalty on the accused and also if that is not settled, it will cause tribal fight. When I say a heavy penalty, I mean payment of tambu, so many fathoms. On a small girl like that, it cost 100 fathoms.”
He further stated this was an appropriate payment still and indicated cash can be paid as well now. He estimated this shell money could be obtained in not more than a three months period depending upon what was done to get it. Payment of this compensation goes to the Mar Mar clan — the clan of the victim’s mother.
The prescribed penalty under the Criminal Code (Ch. No. 262) is, “subject to s. 19, imprisonment for life”. The offence is a serious one. I am also cognizant of the general demand in the community in recent years for persons who are guilty of crimes of a sexual nature against women to be punished more severely.
There is much talk about developing an underlying law and reconciling the imposed and customary laws. Few of the critics of this court realize how seldom is reliable evidence of custom ever elicited or produced for the court’s benefit. This is one of the few cases to come before me where such evidence has been called.
The Customs Recognition Act (Ch. No. 19), s. 2, gives the court wide powers by which proof of custom can be obtained, including waiver of strict legal procedure and technical rules of evidence. Nevertheless, there must be evidence before the court and it is necessary that the provisions of s. 2 of the Act be complied with in this regard. It is not easy to adduce reliable evidence of custom and too often courts are asked to take judicial notice of matters of which some proof is required. By s. 3 of the Act, custom shall be recognized. and enforced except where:
“(a)    its recognition or enforcement would result, in the opinion of the court, in injustice or would not be in the public interest;”.
In this case, it appears to me that by consideration and application of the customary law together with the imposed state law, the latter becomes more meaningful and relevant in the society where the offence was committed. But the custom itself has to be relevant, operative and applicable.
In this instance from what I have been told, the customary settlement is still traditional and reasonable — in sharp contrast to the extravagant cash economy demands which arise, particularly in the Highlands, after fighting or motor vehicle caused injuries or death. The extravagant demand has itself become the custom, often divorced from the real or imagined injury. This in my opinion results in a loss of relevance and meaning of the custom. It would be wrong to apply custom and state law in such a way that punishment is by purchase. This could lead to regional application of the law though divergence of customs.
It is clear to me the collection of tambu will itself create obligations within the family or line binding the accused to the group, if he remains in Talvat, and also be a reminder of and deterrent against further wrong doing on his part.
The relevance of custom has received belated judicial recognition in Australia. See Mamarika v. The Queen (1982) 63 F.L.R. 202 and Jadurin v. The Queen (1982) 7 A. Crim.R. 182 where punishment inflicted on aboriginal offenders by their fellows was taken into account, in the first case, because it happened (but whether it was through customary law or through anger was in doubt); and in the second evidence of customary tribal punishment was before the court. In Neal v. The Queen (1982) 149 C.L.R. 305 at 326 Brennan J, when speaking on sentencing puts these matters in perspective:
“The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance ...”
Whilst sentencing remains a discretionary matter, I am allowed to take these matters into account and this is reinforced in the Customs Recognition Act, (Ch. No. 19) s. 4 of which says:
“... custom may be taken into account in a criminal case only for the purpose of:
(e)      determining the penalty (if any) to be imposed on a guilty party, or where the court thinks that by not taking the custom into account, injustice will or may be done to a person”.
This section was referred to by Kapi J, as he then was, in Acting Public Prosecutor v. Uname Aumane and Others [1980] P.N.G.L.R. 510. Various cases were mentioned in which the Act was considered: see R. v. Asis and Bitimur, (unreported judgment No. 559 dated 16 September 1970); R. v. Iu Ketapi [1971-72] P. & N.G.L.R. 44 and R. v. Jim Kaupa, (unreported judgment No. 765 dated 25 September 1973). After considering the matters taken into account in these cases, he said at 542:
“... This means that a judge may increase or decrease the sentence depending on whether custom mitigates or aggravates the offence and may impose the appropriate sentence within the range given by law. In this case the trial judge had only power to impose punishment within the range given by ss 19 and 309 of the Code. While the trial judge did not err in referring to the willingness of the respondents to pay compensation in terms of pigs, in accordance with custom, he fell into error when he imposed that sentence as a matter of law.”
In arriving at an appropriate sentence, I have considered the need for deterrence, rehabilitation and retribution or in the idiom of this country the official “payback”. Of the first, suffice it to say that the nature of this crime is such that a deterrent sentence is called for. The relative youth of the accused makes his further rehabilitation a matter of concern. Retribution today is not as accepted as a goal of punishment as formerly. I prefer a goal of reconciliation. A healthy respect for one another in the long run is a respect for the laws, the rights and duties which each citizen has to another. I consider a gesture of reconciliation be made, mindful:
(1)      in custom, peace making and settlement have been traditional;
(2)      the repercussions such will have on the extended families of the accused and victim; and
(3)      that recourse to any criminal injuries compensation is not otherwise possible.
People in this country have a right to be satisfied with the notion of justice, I intend to make such an order pursuant to the discretion I may exercise under the Code, s. 19(1)(f)(ii). By so doing, I consider the aggravating and mitigating factors relating to this offence and this offender can be reconciled.
The sentence of the court is: three years and six months’ imprisonment, reduced to three years and two months’ imprisonment if (1) traditional compensation of 100 fathoms of tambu is paid to the clan of the child’s mother; (2) the accused to enter into his own recognizance to be of good behaviour.
Orders accordingly
Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Maraleu Isana & Associates.