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State v Daniel [1999] PGNC 70; N1877 (6 August 1999)

Unreported National Court Decisions

N1877

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 634/99

CR 639/99
THE STATE
-V-
DAVID KIAPLAIN DANIEL
AND
POLLIN WARPUAI DANIEL

Kokopo

Jalina J
4 August 1999
6 August 1999

CRIMINAL LAW - Incest - between mother and son - both consenting parties - sentence - custodial sentence necessary as deterrent - Criminal Code Act Ch 262 s. 223 and s. 224

Counsel

L. Rangan for the State

J. Kaumi for the Prisoners

SENTENCE

6 August 1999

JALINA J: You, David Kiaplain Daniel, have pleaded guilty to a charge that on dates unknown between 1st March 1998 and 3rd March 1999 (which is a period of one year) at Gaulim Village, East New Britain Province, had sexual intercourse with your real mother Pollin Warpuai Daniel.

You, Pollin Warpuai Daniel have pleaded guilty to a charge that between the period specified above at Gaulim Village, East New Britain Province, permitted your eldest son David Kiaplain Daniel to have sexual intercourse with you. You, David Daniel are aged about 23 years and your mother is aged about 35 years and she has 7 children being 4 males and 3 females.

Evidence from Daniel Sape, husband of Pollin and your father shows that he became suspicious of you two have affairs in March 1998 and started monitoring your movements.

In June 1998 he found you David lying on top of your mother and having sex. He found you both again in August 1998 and hoped that you would stop your immoral and shameful act but you did not. When he found you in about February or March 1999 still continuing your relationship you both ran away from the rest of the family and spent about one week in the bush. He reported the matter to the village councillor and a search was mounted. You both were found in the bush during the search. The matter was reported to the police which later arrested and charged you.

The charge against David Kiaplain Daniel carries a penalty of life imprisonment under s. 223(1)(C) of the Criminal Code Act Ch. 262 subject to the court’s sentencing discretion under s. 19 of that Act.

The charge against Pollin Warpuai Daniel carries a penalty of 3 years imprisonment under 99 s. 224(1)(C) of the Criminal Code Act Ch. 262. Those provisions clearly show a huge discrepancy in the penalty between a male offender and a female offender. It is a pity, with respect, that Parliament has not made provision for a male and female who consensually commit this crime to receive equal punishment. Such discrepancy may encourage females to even seduce a blood relative of the opposite sex to commit this crime as she may feel that she would receive a lenient sentence to her male co-offender. Hopefully Parliament will rectify this discrepancy soon. In the meantime I am bound to sentence you respectively on the basis of the law as it stands.

Apart from your plea of guilty and your expression of remorse as well as the fact that this is your first time to appear in this court, there is nothing good to be said about each of you. What you have done is immoral and shameful to say the least. I cannot understand why you, Pollin, allowed your eldest son David to penetrate with his sex organ the very passage through which he came into this world. I also cannot understand why you, David, had the guts to let your sex organ enter the very passage through which you came into this world. You David are a young man and you could easily have found young girls to have sex with.

You Pollin are a married woman. There is no evidence of marital disharmony between you and your husband so you could easily have gratified your sexual desires from your husband.

Your behaviour is akin to the behaviour of dogs who do not have any sense to consider whether the male or female dog is its father, mother, brother or sister before mating .

I have dealt with incest cases involving father and daughter and brother and sister and in most of those cases the female partner was forced by the male partner. For instance in The State -v- John Elei in Manus in April this year I sentenced the prisoner who forced his sister to commit incest with him to 6 years imprisonment in hard labour. In The State -v- Pikah Ndrohas which I also heard in Manus in April this year, I sentenced the prisoner who consensually committed incest with his sister and who had a prior conviction for incest with the same sister, to 7 years imprisonment in hard labour. The above cases involved offenders and victims in their late teens or early twenties.

However, this is the first case of consensual incest between mother and son that I have to deal with during the many years I have been a judge. Bearing in mind that the mother being older and the onus being on her to discourage her son to have sex with her and the son being 23 years of age and being an adult and being able to distinguish between right and wrong, the sentence in this case should be high enough to discourage would be violators or offenders who consent to commit this crime.

In all the circumstances of this case and taking into account your respective pleas of guilty, your expression of remorse and your lack of prior conviction and bearing in mind the bad things this offence brings to a family including family members splitting up as they take sides, which I believe has happened in your family, I consider a sentence of 8 years imprisonment in hard labour to be appropriate punishment on David Kiaplain Daniel which I so impose. I deduct the 5 months you have spent in custody which leaves 7 years and 7 months imprisonment in hard labour.

On the basis of the matters I have alluded to in the last preceding paragraph, I consider a sentence of 2 years and 6 months imprisonment in hard labour to be appropriate punishment on Pollin Warpuai Daniel which I so impose. I also deduct from that sentence the 5 months she has spent in custody which leaves 2 years and 1 month in hard labour.

Lawyer for the State: Public Prosecutor

Lawyer for the Prisoners: Public Solicitor