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State v Angosiwen (No 2) [2004] PGNC 97; N2670 (21 June 2004)

N2670

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1406 of 2000

THE STATE

-V-

FRANCIS ANGOSIWEN
(No.2)

WEWAK: KANDAKASI, J.
2004: 21st June

DECISION ON SENTENCE

CRIMINAL LAW – PRACTICE & PROCEDURE – Parliament reducing penalty despite prevalence of offence – Effect of – Court legally bound to proceed on assumption that Parliament makes no mistake – Court has discretion to impose maximum prescribed penalty in appropriate cases - Criminal Code ss. 19 and 223.

CRIMINAL LAW – PRACTICE & PROCEDURE –Indictments and sentences – Indictment presented for less serious offence in terms of penalty when facts discloses more serious offence – Unless exceptional circumstances exist no need to further reduce sentence under less serious offence.

CRIMINAL LAW – Incest by father against biological daughter – Offence committed in circumstances amounting to rape – Use of knife to threaten and secure sexual penetration - Sentences for rape in similar circumstances considered - Guilty plea by first time offender –No physical injuries to victim – Factors in aggravation outweighing factors in mitigation – Maximum sentence imposed – Criminal Code ss. 223 and 347.

Cases cited:
The State v. Francis Angowisen (No.1) (19/06/04) N2669.
The State v. Douglas Natilis) N....
The State v. Amos Audada (13/05/03) N2454.
The State v. Eddie Sam (03/02/04) N2521.
The State v. James Donald Keimou (12/10/01) N2295.
Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71.

Counsel:
J. Wala for the State
L. Siminji for the Accused

21st June 2004

KANDAKASI J: On 18th this instant the Court found you guilty on one charge of incest against your own biological daughter. The facts are fully set out in the judgment on verdict (The State v. Francis Angowisen (No.1)). However, for the purposes of sentencing, I note the following facts are relevant.

On the day of the offence, you took the victim and two other children to the garden. You left the other children at a sago palm, which you cut down earlier and tricked the victim into looking for birds eggs that never existed to a different location. There, you threatened her with a knife, and told her to take her trousers off and she complied out of fear of being hurt, while you removed yours and proceeded to have sexual intercourse with her. After you finished having sex with her, you threatened and told her not to report the incident to anyone, saying you would kill her if she did. You then forced her to go and take a bath and she did as you threatened to hurt her with the knife. She suffered a crack to her vagina.

On this facts, you raped your own daughter. Instead of charging you with rape, the State for reasons not disclosed to the Court, you were charged with incest.

Section 223 of the Criminal Code as amended creates and prescribes the penalty for the offence of incest. Presently the penalty is 7 years maximum, which is a reduction from an original prescription of life imprisonment. I fully discussed the effect of this and the sentencing tariffs in the decision I just handed down in the matter of The State v. Douglas Natilis) N...... I wish not to repeat it except only to summarize what I said in that case.

There, I said Parliament has apparently made an obvious mistake or was led to make a mistake in reducing the penalty provision for a number of reasons. Firstly, the offence of incest is a very serious offence because it destroys a sacred trust between close relatives. Secondly it is an offence that is prevalent and on the increase. Thirdly, given the seriousness and its prevalence, the Courts have imposed sentences beyond 7 years. Such sentences range from 10 years as in The State v. Amos Audada (13/05/03) N2454 and 17 years cumulative for 9 counts of incest as in The State v. Eddie Sam (03/02/04) N2521. They even reached life imprisonment as in The State v. James Donald Keimou (12/10/01) N2295, for repeated acts of incest by a natural father against two daughters with a total of three children being born to the daughters. Finally, this change in the penalty does not accord well with the reasons for the recent amendments to the Criminal Code particularly those provisions dealing with sexual offences against children, which increased sentences and made it easy to get a conviction in these kinds of offences.

The next thing I said was that, there is no power in the Court to correct this apparent mistake. That power belongs to Parliament. As such, all that the Court can do is to recommend to Parliament to reconsider the penalty provision with a view to restoring the previous penalty of life imprisonment or prescribe a sentence closure to it.

Meanwhile, I held that, the Court must apply the current provisions as they are, proceeding on the basis that Parliament did not make any mistake. Accordingly, I held further that, the sentencing guidelines as set by Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71, continue to apply but with some variation to reflect the reduction in the penalty. These guidelines suggest that, if the circumstances in which the offence was committed constitutes rape, then the sentence must proceed as in a rape case.

Going by that guideline, I noted that, sentences for simple cases of rape on guilty plea attract sentence between 13 years and 17 years. I then held that, because of the penalty provision as they are in incest cases, the Court cannot impose a sentence beyond the maximum prescribed of 7 years. In arriving at that view, I noted that it is now almost settled law that where an indictment for a lesser offences is presented when the facts support an indictment for a serious offence, the Court should not further reduce the prescribed maximum sentence as in this case, 7 years, except where "very good mitigating factors exists."

Then in view of the sentences imposed for rape cases and noting that no other very good mitigation factors existed that warranted a further reduction in the sentence, I imposed the maximum prescribed sentence of 7 years. In so doing, I noted that the sentence accommodated and reflected the seriousness of his offence, the prisoner’s guilty plea and that he was a first time offender.

Bearing these in mind, I note your case is almost on all fours with the cases of The State v. Douglas Natilis (supra). The only difference is that, you pleaded not guilty which forced your daughter and the victim of your offence to come and relieve her bad memories of what you did to her before both yourself and other strangers. Based on this, you deserve a sentence beyond the one imposed in that case. Nevertheless, given the maximum prescribed by Parliament, this Court can only impose a sentence not exceeding 7 years and it imposes that sentence. This reflects the seriousness of the offence, its prevalence, you being a first time offender and your other personal and family backgrounds as noted above.

Of the 7 years sentence the Court imposes against you, it orders a deduction of the time you have already spent in custody. It also orders that, you serve the balance of your sentence in hard labour at the Boram Correction Services.
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Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor