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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 599 of 2004
THE STATE
-v-
TIKIRIA AMOS
Kavieng : Sevua, J
2004 : 11th & 14th May
2005 : 19th September
CRIMINAL LAW – Sentence – Incest – Plea of guilty – Father and daughters – Pregnancy of one victim – Sentencing principles – Tariff for rape sentences applicable – Incest serious crime – Severe penalty warranted.
Held:
Cases cited:
Mitige Neheye v. The State and Martin Gawi v. The State [1994] PNGLR 71
Grayson Andowa v. The State (1998) unreported, SC576, 1st October 1998
The State v. Mitige Neheye [1988-89] PNGLR 174
Counsel:
Mr. L. Rangan for State
Ms. A. Turi for Accused
19th September 2005
SEVUA, J: On 14th May 2004, I delivered judgment on sentence in this matter. Due to the fact that the judgment on sentence was delivered on the last day of the circuit in Kavieng, I was unable to publish full reasons then, however I did undertake to do that later and I do apologise for the delay in doing that now.
The accused pleaded guilty to three counts of incest between the years 2002 and 2004, the first and second counts, contrary to s.223 (1) of the Criminal Code, under the old provision, while count 3, contrary to the new s.223 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.
I imposed the following sentences. Count 1 – 25 years imprisonment with hard labour; Count 2 – 7 years in hard labour and Count 3 – 7 years in hard labour. I ordered that the sentence in Count 2 be made concurrent with the sentence for Count 1 while the sentence in Count 3 be cumulative to the sentence in Count 1.
The brief facts in respect of the first two counts were that between the years 2000 and 2003, the accused had sexual intercourse with his third born daughter, E and also his fourth born daughter, R at Kabanut Village, Namatanai. In respect of the third count, the accused had sexual intercourse with his daughter R sometime in February 2004.
After the Court entered a plea of guilty on all counts, Ms. Turi, counsel for the accused, made an application in respect of Count 3 to change the plea on the basis that there is insufficient evidence. The Court intimated that the accused had admitted certain set of facts and pleaded guilty to them. If there is no evidence then the Court will make a ruling on that issue or if the accused changed his plea in allocutus, the Court will vacate the plea. Mr. Rangan for the State submitted that there is admission in the record of interview that the State relies on. Ms. Turi then made an application to withdraw her previous application and the State did not object. The Court then granted the application to withdraw the first application and noted that the defence had no application to make.
After reading the depositions the Court convicted the accused of the second and third count and indicated that it would address all three counts together. Upon a careful perusal of the evidence, I am satisfied that the accused did have sexual intercourse with his daughter E and I therefore enter a plea of guilty subject to allocutus.
In allocutus, the accused began reading from a written statement he had written. I think basically he was trying to say that he committed the crimes because of some customary practices, which I assumed he was referring to sorcery. The hand written statement was handed up to the Court and I can confirm that the accused said that someone must have made sorcery on him to make him commit these offences.
Ms. Turi counsel for the prisoner submitted that the prisoner is 38 years old and has seven children including the two victims. He was educated to Grade 10 and at the time he committed these offences, he was employed as a carpenter at Kabanut Top-up Primary School. Counsel submitted that from instructions, the prisoner had no good reasons to have sexual intercourse with his daughters. The acts of sexual intercourse were not reported to anyone until R became pregnant and she confessed that her father made her pregnant. It was further submitted that this was a serious case with aggravating factors.
The Court accepts that this case is very serious because it involves circumstances of aggravation which warrants serious considerations on penalty. One of the aggravating features of the case is that one of the two daughters, R, became pregnant as a result of the prisoner’s incestuous acts. To appreciate the features of aggravation in this case, I consider it necessary to look at her evidence, who was then a Grade 7 student at Kabanut Top-up Primary School at the time of the offence.
R gave a statement to Police on 15th February 2004. She said she was 16 years old then. She recalled what happened on a day in January 2002, when she and her elder sister, E, the first victim, and their father (prisoner) went to visit her grandfather. They decided to spend the night there so she slept in one of the rooms in her grandfather’s main house, whilst E, the prisoner and the grandfather slept in the other house. At night she went out to relieve herself when she noticed torch lights in the grandfather’s house where the others were sleeping. From the torchlight, she saw her father having sexual intercourse with E as she laid down on her back on the bed. She returned to the main house. After they returned to their own house, she reported the matter to her mother who questioned E, but E denied the claim.
Then sometimes after that incident, in the same month, the two daughters were asleep in their room one night when the prisoner came home drunk and opened the door to their room and grabbed the victim R by her hand and woke her up. The victim was led outside into some banana trees near the house where the prisoner told her to undress. She refused so the prisoner threatened to chop her neck off with his bush knife. The prisoner then forced the victim onto the ground and forced her legs apart then had sex with her. After he had done this, he again threatened the victim if she told her mother.
From then onwards, it became a routine for the prisoner to take the victim R out to the coconut plantation or into the bush and have sexual intercourse with her. At other times, he did this to both daughters on the same day, but one after the other in the absence of each other. He would verbally call one victim away from the other to have sex with her then have another turn with the other daughter.
On a number of occasions, the prisoner had licked R vagina either before or after sexual intercourse. At other times, he had sodomised R or had anal sex with her. On other occasions in the victim’s bedroom, the prisoner had sex with both victims. He would have sex with one then come off her then have sex with the other in the same room.
The prisoner’s incestuous acts with his daughters commenced in 2002 and continued to 2004. In September 2003, the victim R missed her menstrual period and became pregnant as a result of the prisoner’s incestuous acts. By February 2004, she was 5 months pregnant. Then on 12th February 2004, she informed her mother that the prisoner was responsible for her pregnancy.
For purpose of sentence, I consider that this is a very serious case because of the aggravating circumstances that I have adverted to and will reiterate them here. The acts of sexual intercourse were perpetrated for a little over 2 years. As a result of the long period of the accused’s incestuous acts, one of the daughters became pregnant. The acts of incest was committed with the two daughters over two years, sometimes in the same room, and at other times, in the plantation, garden or bush. Sometimes the crime was committed with the two daughters one after the other in their presence. At other times, the prisoner would call one victim away from the other to commit incest with, then have his turn with the other, but on the same day.
Sexual perversions or indignities, which in my view, amounted to circumstances of aggravation also exist in this case. The victim, R was subjected to anal sex or sodomy on a number of occasions. At times the prisoner licked her vagina either prior to, or after the acts of sexual intercourse. Threats of violence were made to her. She became pregnant in September 2003 and by early this year (February, 2004) she was 5 months pregnant.
The accused is the biological father of the two victims. His incestuous acts with his two daughters therefore is a circumstance of aggravation of the most severe kind. I will allude to this principle later. However, it needs to be noted and highlighted at this juncture that this was not one single incestuous act with one daughter. There were numerous incestuous acts with two daughters resulting in the younger one getting pregnant. This is an aggravating circumstance of the worst kind, which, in my view, calls for a very severe punishment.
In considering the appropriate sentence in this case, let me refer to the prisoner’s own statement in allocutus and his counsel’s submissions.
In allocutus, the accused briefly made a short statement and then handed up a written statement. As alluded to, I think what he attempted to say orally was that the crime he committed was a result of some sorcery spell cast upon him in his village. I had the impression that he was trying to blame his actions on sorcery. In the written statement, he reiterated what he had said orally. He said he did not intend to commit incest with his daughters however his mind, and that of his two daughters, were affected by customary practices, that he did what he did without realizing it was wrong and a crime. He also said his daughters’ minds were also destabilized by this traditional belief that they too did not know what he was doing to them, and that was why they did not report him to their mother.
In the same written statement, the accused expressed remorse and apologized to his family and community. He asked for leniency and mercy and a good behaviour bond or a concurrent sentence. He said he wanted to return to his family because whilst he was held in custody, his family members came and visited him and they have already resolved this matter.
Counsel for the accused, Ms. Turi submitted in mitigation that the accused had pleaded guilty and a first offender, therefore the Court should consider that in favour of the accused, in spite of the aggravating factors of the case. Counsel then referred to the Supreme Court decision in Mitige Neheye v. The State and Martin Gawi v. The State [1994] PNGLR 71 and said the Court should consider the guidelines set out therein. I have had the benefit of reading that decision and it is a persuasive authority on incest cases which is binding on this Court. I will refer to it and other cases as well in this judgment.
However, at this juncture I need to express the Court’s concern at the apparent lack of in depth knowledge of the concerns that the National Court has expressed over the years in respect of the crime of incest. Under s.233 (1) of the Criminal Code, the maximum penalty for incest is, life imprisonment, unless some other determinate terms are imposed in consideration with s.19. In my view, that penalty reflects the seriousness of this crime. But Parliament in its wisdom decided to downgrade this crime by legislating 7 years as the maximum penalty. This is quite ridiculous to say the least.
In 2002, Parliament passed the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The Act was certified on 25th June 2002 and commenced operation on 10th April 2003. Since the commencement of that Act, the National Court has no choice but to impose the maximum penalty of 7 years if it deems it appropriate in the circumstances of a case. The effect of this Act which repealed and replaced the old s.223 of the Code is that the maximum penalty of life imprisonment is no longer available to the Courts to impose in incest cases.
Whilst I do not question the function and power of Parliament, I question the wisdom of every person involved in the amendment. Incest is a very serious crime. It drives a wedge between families and creates great disharmony within a family unit. It breaks up marriages and sends children and mothers away from the matrimonial home, perhaps for some, into poverty. Yet the people behind such legislative changes had seen fit to disregard the interest and welfare of young daughters and their sufferings. It simply means that Parliament thinks female children or daughters are no longer important so that if they are abused or molested by their fathers or brothers, the penalty is a mere maximum of 7 years.
I consider this to be quite ridiculous and stupid because in my view, there is no longer a protection over young daughters, who in many reported and unreported cases, have been sexually abused and molested by their own fathers. Incest, committed without consent or by force amounts to rape therefore the sentence for rape is valid. Given that well preserved principle of law, it is quite a farce, to say the least, for Parliament to downgrade this crime and reduce the maximum penalty to a mere 7 years.
In fact, I question the wisdom of the Committee which I believe was responsible for collecting relevant information and collating them leading to the recommendation to change this very important law which protects the children, including young female children. I understand that that Committee comprised of several prominent citizens including a senior Member of Parliament, and these people should hang their heads in shame for demonstrating their indifference to the need to protect young daughters.
It is my view that the repeal of s.223 and the reduction of the maximum penalty for the crime of incest from life imprisonment to 7 years is an injustice to young female children who become victims of this heinous crime. I had thought that the review of all sexual offences leading to the enacting of the Criminal Code (Sexual Offences and Crimes) Act 2002 came about as a result of complaints from women and young girls, community, police, the Courts and parents of victims of sexual crimes. And for Parliament to downgrade and downplay the severity of this crime just lacks common sense and wisdom and a failure to appreciate the pain and sufferings of young daughters who become victims of the crime of incest.
So this Court should ask where is justice for the young daughters? Where is the protection granted by the Constitution? These no longer exist, so how are we going to protect the young daughters? The Parliament should immediately amend the new s.223 and reinstate the old s.223 maximum penalty of life imprisonment so that there is some sense of justice to the young daughters. Any sane Papua New Guinean parent should seriously question the motive and wisdom of the members of that Committee and everyone involved in it including the enactment of that piece of legislation.
Having expressed those views, let me return to the law and consider some cases on this particular crime. I start with Grayson Andowa v. The State (1998) unreported, SC576, 1st October 1998. I constituted the National Court which convicted and sentenced the appellant to 7 years imprisonment upon his plea of guilty to one count of incest. He appealed against that sentence and the Supreme Court dismissed his appeal. In dismissing the appellant’s appeal against sentence, the Supreme Court said at page 3:
...the trial Judge has made no errors in his consideration of the sentence applicable and we endorse the views of the various courts that incest is such a serious crime and does warrant severe terms of imprisonment (my emphasis).
In the same case, the Supreme Court alluded to some very important principles which I consider relevant and applicable in the present case as this case involves two daughters and the incestuous acts were committed over a long period of time. The Court said:
One feature from many of these cases is that once a man has committed one act of incest against a daughter or sister, he often repeats. In the above mentioned cases there were repeated acts and in the case before us now, there are two counts and the evidence is that the appellant was wanting to do it again. This highlights the importance of stopping these incest acts as soon as discovered because they tend to repeat and suggests that two counts can be as serious as many because if not stopped they lead to many.
The Court referred to Mitige Neheye v. The State [1988-89] PNGLR 174 and reiterated one fundamental principle which I consider has not been fully appreciated by the Courts when one compares the various sentences for incest that have been imposed by various Judges. It appears to me that we are treating the crime of incest casually and very lightly and without due regard to the principle referred to by the Supreme Court in that case. At page 2 of the judgment, the Court said
We refer to the principles enunciated in Mitige Neheye v. The State [1994] PNRLR 71 which emphasized the serious nature of the offence and 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.
I adopt and apply those principles in the present case. It is my view that this case is a very bad case of incest. It was perpetrated over 2 years with two daughters. There were sexual perversions or indignities involving one daughter. One of the daughters became pregnant when she was only 16 years old. One of the two daughters, the younger one who became pregnant was forced into submission. She was threatened when she refused intercourse. She was forced against her will. All these are circumstances of aggravation which are very serious that a stern punishment is necessary to deter such criminal conduct by uncaring and irresponsible fathers.
I do not doubt for one moment that the actions of the accused amounted to rape therefore what the Supreme Court alluded to in the above appeal is quite appropriate in the circumstances of this case. I believe that a sentence applicable to a rape case with these kinds of features is warranted and I intend to apply that principle in this case. There can be no doubt in any one’s mind of the seriousness and enormity of this crime.
I think it is instructive to go back to the original case in which the above appeal stemmed from in order to appreciate some of the principles here. That was a case of a 50 year old father having sex with his 15 year old daughter on four separate occasions and was sentenced to 7 years imprisonment with light labour, I think, because of his age.
A number of principles alluded to in that case are relevant to quote in the present case because of their persuasive value. Firstly, I start with what the Court held.
Because the offence involves unlawful sexual intercourse, a maximum term of life imprisonment and consent is immaterial, the principles of sentencing for the offence of rape should be applied (my underlining).
I agree with that principle which should guide the Court in considering sentence. Sexual intercourse with a minor involves the issue of force and lack of consent. The minor or underage girl is not legally capable of giving consent therefore such action is tantamount to rape. It follows therefore that a sentence for rape should apply as it is consistent with the Supreme Court view.
Secondly, at page 177, the Court said:
An incestuous act with a child is a circumstance of aggravation of the most severe kind. It is a gross betrayal of the most sacred relationship of father and daughter. When young girls are the victims, it is difficult to imagine that the girls will not be scarred emotionally, perhaps for life (my emphasis).
Thirdly at page 178 the Court said:
The prime duty is to protect the young..............
The Court should deal with cases of incest, as with rape, clearly and decisively so that there can be no doubt as to sentencing policy.
In the present case, I would be failing in my duty to protect these two young girls. I consider that, the accused’s incestuous acts with the second daughter, who eventually became pregnant, should be treated like rape therefore the sentence should reflect that principle. I agree that the Court has a duty to protect young girls from this kind of sexual abuse and exploitation perpetrated by many fathers. Incest is becoming prevalent and widespread, that it has effectively become an oppressiveness pervading the lives of many young innocent and powerless young daughters.
Unfortunately, when Parliament saw fit to reduce the maximum penalty for incest from life imprisonment to 7 years imprisonment, it removed the protection over daughters or young girls for that matter. That amendment is quite pathetic to say the least. The community at large should question the wisdom of those who promoted this piece of legislation and also the wisdom of those who enacted it. How are we going to protect our young girls by imposing a lousy three or four years on a plea of guilty to incest? How can we prevent fathers molesting their under-aged daughters by committing incest with them if the Courts could only impose the maximum of 7 years imprisonment? Parliament should be looking at increasing the maximum penalty for incest instead of reducing it.
Do we infer that the silence by the community and by Non Government Organisation Groups mean they support this kind of lollypop penalty for incest? If not then, something should be done immediately to bring back the maximum penalty of life imprisonment for incest, otherwise the abuse and sexual violence against young daughters by parents will mean nothing to society.
Let me now refer to the case of Martin Gawi which Ms. Turi cited in her submissions. The correct citation is Mitige Neheye v. The State and Martin Gawi v. The State [1994] PNGLR 71. That Supreme Court decision involves two separate appeals against sentences imposed on two separate incest cases. I have already adverted to the National Court judgment in Mitige Neheye. The Supreme Court in these appeals which were considered together had to consider sentencing principles for this crime and establish the guidelines appropriate in sentencing.
These guidelines are found in pages 71 and 72 as follows:-
In applying these principles to the present case, most of the aggravating factors listed above are present. I consider that, force, pregnancy and age of the victim are serious aggravating circumstances, which were present in the present case, and which warrant a severe form of punishment.
I have adverted to various relevant legal principles which I consider relevant and appropriate in this case. Whilst the accused pleaded guilty to 3 counts of incest, I consider that his guilty plea fades into insignificance when considered against the serious aggravating factors in this case. I have already alluded to the aggravated factors and it is not necessary to repeat them here.
However, I need to stress and reiterate that, this case like all cases of incest, is a breach of trust reposed on the accused as a father. It is also a breach of parental responsibility. I concur with what Brunton, AJ said in The State v. Mitige Neheye (supra). Incest by a father with a daughter is a serious betrayal of the most sacred relationship. It is a breach of the trust inbuilt within that sacred relationship. I just do not understand how a incestuous father could live with his conscience after abusing his daughters.
In considering sentences for these three counts, I have been persuaded by the principles that incest when committed without consent, and by force, is tantamount to rape and accordingly a sentence for rape is appropriate. I am guided by that, and I therefore consider that a sentence applicable in rape cases is appropriate in this case.
Of course, I have duly considered matters in favour of the accused. His plea of guilty to all three counts and his prior good record. However, as I have adverted to, these falls into insignificance when compared with the aggravating features of this case. Against these two mitigating factors are force, sexual perversions, period of time incest was committed (2 years plus), pregnancy and so forth. These are serious matters of aggravation which, in my view, not even the plea of guilty could reduce the enormity of the crime. This one deserves a very stern penalty, not only to deter the accused personally, but to warn other fathers that they would be dealt with in the same way if they committed incest with their daughters.
We have seen that in single acts of incest, the Courts have imposed a term of 8 years on pleas of guilty. We have also seen that in Neheye (supra), 7 years was held to be not a significant increase in the tariff for incest. So the logical thinking is that sentences for incest must increase and Courts have warned time and again. The Courts need to increase sentences for incest markedly, not only because it is a prevalent crime, but one important principle is to protect young daughters from being corrupted by these acts of sexual abuse, exploits and perversions.
For these reasons, the sentence that this Court will impose are these. On the first count of incest, the accused is sentenced to 25 years imprisonment with hard labour. On Court 2, the accused is sentenced to 7 years imprisonment, and in respect of the third count, the accused is sentenced also to 7 years imprisonment.
The penalty for Count 1 reflects the seriousness of this crime under the repealed s.223(1)(a), the penalty for which is life imprisonment. The State had indicated that this charge was brought under the old s.223 (1). The sentence for the second count also reflects the penalty under the old provision as the Court was also informed that the charge was under the old provision. The sentence for the third count is brought under the new provision of the Sexual Offences and Crimes Against Children Act 2002, s.223(1). Although the maximum penalty is 7 years, the fact is that the crime was perpetrated over more than 2 years and the victim became pregnant. These and other considerations have already been discussed. In my view, 7 years is not an appropriate sentence for incest.
For the sake of totality principles, I have decided to order that the sentence of 7 years for the second charge be concurrent with the sentence in Count 1 and the sentence of 7 years for the third charge be cumulative to the term of 25 years on the first count. The prisoner will therefore serve a total of 32 years in hard labour. I order that pre-trial custody period of 2 months, 19 days be deducted from the 32 years which leaves a balance of 31 years 11 months and 11 days to serve.
Lawyer for State : Public Prosecutor
Lawyer for Prisoner : Public Solicitor
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