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State v Kwetok [2006] PGNC 167; N3389 (9 November 2006)

N3389

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 1474 OF 2005

THE STATE

-V-

SEVI KWETOK

Tabubil: Kandakasi, J.
2006: 7th and 9th November

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Particular offence – Incest - Cousin brother against cousin sister – Child born out of sexual relationship – Guilty plea – First time offender – Serious offence but down grade by Parliament – Offence still prevalent - 5 years in hard labour imposed – Section 223 Criminal Code

Cases cited:
The State v. Douglas Natilis (Unreported and Unnumbered judgment, 2004)
The State v. Francis Angosiwen (No 2) (21/06/04) N2670.
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.
The State v. Tikiria Amos (19/09/05) N2614.
Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71.

Counsel:
D. Mark, for the State.
P. Kapi, for the Prisoner.

9 November, 2006

1. KANDAKASI J: You pleaded guilty to one charge of incest contrary to s. 223 of the Criminal Code as amended. After having administered your allocutus and receiving submissions of counsels, I reserved a decision to today. This is now the decision of the Court.

Relevant Facts

2. The facts on which you pleaded guilty to are these. On 12th December 2005, you approached the victim of your offence, LL at her parents’ house, house number 3 here in Tabubil. Her parents, who are your uncle and aunt, went to watch a game at around 1 and 2 pm. You used to go to your uncles place and on the day of the offence, you entered the house. When in the house, you went to the victim’s room and entered it without her invitation. She was in her room. Once in her room, you asked to have sexual intercourse with her and you proceeded to remove her clothes. Other evidence in the court file show that you had sexual intercourse with her without her consent, meaning you raped her. Earlier on, you failed to secure her agreement to having sexual intercourse with you. You threatened to kill the victim if she reported you to her parents or anybody else. The victim was therefore very scared and did not inform any one until April of this year. Out of the sexual intercourse between you and your biological cousin, she became pregnant and gave birth to a child.

Address on Sentence and Submissions

3. In your address on sentence, you said sorry for what you have done. You also said sorry to the victim and her relatives as well as your relatives for committing the offence against them.

4. Your lawyer added that, you are about 18 years old now and 17 years old at the time of you committing the offence. The victim of your offence was around 15 heading 16 years old at the time of the offence. You come from Angkmp Village, Telefomin, Sandaun Province. You are single and you are the father of the child your offence’s victim has delivered. You are the first born out of two brothers and one sister. Education wise, you have completed grade 10 at Don Bosco High School in Vanimo. In terms of employment, you have no formal employment. Since your arrest on 25th July 2006, you have been in custody to the present day.

5. In his submissions, your lawyer urged the Court to take into account your guilty plea and being a first time youthful offender. He then submitted that the Court should impose a sentence close to the maximum sentence, appreciating the fact that the offence of incest is serious and is a prevalent offence. The State’s submission picked up on that and submitted that, you should be given a sterner sentence because of the seriousness of the offence. Both counsels agree that the offence you committed is very serious but the Parliament in its wisdom downgraded the offence in terms of its penalty from a previous maximum sentence of life imprisonment to only 7 years now. They also agreed that, that went against even the Court’s imposition of sentences beyond 7 years previously.

Offence and Sentencing Trend

6. 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 State v. Douglas Natilis[1] and summed up that discussion in the case of The State v. Francis Angosiwen (No 2).[2]

7. 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. First, 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[3] and 17 years cumulative for 9 counts of incest as in The State v. Eddie Sam.[4] They even reached life imprisonment as in The State v. James Donald Keimou,[5] 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.

8. I have now come to the decision of my brother Sevua J., in The State v. Tikiria Amos,[6] where His Honour expressed similar views. There, His Honour said:

"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."

9. Both in the Douglas Natilis and the Francis Angosiwen cases, I said Parliament made a grave mistake and noted 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 closer to it.

10. 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,[7] 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.

11. Going by those guidelines, 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."

12. Then in view of the sentences imposed for rape cases and noting that no other very good mitigating 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 the offence, the prisoner’s guilty plea and that he was a first time offender.

13. The Douglas Natilis and the Francis Angosiwen cases, were incest by fathers against their respective daughters. The only main difference between the two cases was that, there was a guilty plea in the first case while it was a trial in the latter. Despite that, I imposed the maximum prescribed sentence of 7 years because of the seriousness of the offence and that the facts disclosed it was a case of rape. I noted that, if it were not for the reduction in sentence by Parliament, the prisoners could have been given sentences higher than 7 years. My brother Sevua J., did likewise in the Tikiria Amos case and imposed a similar sentence.

Sentence in Your Case

14. For the purposes of determining an appropriate sentence for you, I note and take into account, both your personal and family backgrounds as put to me by your lawyer and as I noted above. Then in your mitigation, I note that, you are a first time offender and that you have pleaded guilty to the charge of incest. Further, you said sorry but there is no evidence of you either paying compensation or doing something tangible to show your remorse to the relatives and friends of the victim. Even if you did that, I note that, that would not reverse the damage you have already brought upon the victim. Further, I note in your mitigation that, age wise, you and the victim were not much apart. She was 15 years old and you were 17 years old at the relevant time. Finally, I note that, unlike the cases I have just referred above in which the offenders were mostly the biological fathers of their victims, you were cousins. You were of around the same age group as your cousin and victim of your offence. The point is, parents should be penalized more than children or sibling offenders, because of the parental responsibility that parents have over their children, which they breach when they commit the offence.

15. Against these few mitigating factors, I note and take into account a number of aggravating factors. First, you committed an offence that is prevalent. Offences against young girls, often in no position to defend themselves are being committed against them in violation of their person, rights and integrity as human beings by their own fathers and older male relatives.

16. Secondly, there is enough danger out there outside the home. The home is the only place where young girls and women could have some security but when members or those in the home become the offenders, no security is left for the helpless young girls and women. As I said in the James Donald Keimou case, the commission of this offence:

" ... no doubt destroys the security of the home and leaves forever lifetime scares for the victim and a bad stigma for him or herself and his or her family and relations. Love gets replaced with hate and trust with distrust. Insecurity replaces security and fear replaces confidence in the family unit and the immediate community. Happiness, peace and joy are replaced with shame, ridicule and unhappiness in the family unit and in the wider community. If the victims get infected with sexually transmitted disease, his or her health is replaced with sickness and poor and unhealthy lives. If pregnancies occur, they results in unwanted pregnancies and unwanted children not properly welcomed into a proper and normal family setting. These in themselves are serious aggravating factors. If one or more of this exist apart from the threat of or use of force they place incest in the worse type of sexual offences although some of these factors might exist or arise in a rape case. But in a rape case, the victim’s family might be there to support the victim whereas the family unit in an incest case might not be there."

17. In your case, your sexual violation of the victim resulted in her falling pregnant and has eventually delivered a child. There can be no argument that, you have ruined her right to have a boyfriend and marry a man of her choice as her life’s partner. The fact that a child has been conceived and born makes the offence you committed more serious. As Brunton AJ said in the Mitige Neheya case, which I noted with approval in James Donald Keimou case, where the offence of rape and incest results in pregnancy and the birth of a child:

"... the damage to the psychological well-being of the girl victim is well established. Even if a child is born healthy, the social stigma of its origin, or even the subjective knowledge of its origin, is likely to be a heavy burden for it to bear in life."

18. Fourthly, I note that, the facts disclose, you tried your luck in trying to get the victim to agree to have sexual intercourse with you a couple of times earlier and the victim had told you that, what you wanted to do was wrong as she was your blood cousin. Instead of appreciating what she said to you and accepting the fact that you were out on a wrong footing, you persisted and eventually entered her room uninvited on the day of the offence and committed the offence against her in her own bedroom. In so doing, you committed another offence, namely trespassing into the victim’s bedroom.

19. Finally, I note that the facts disclosed you committing rape upon the victim. You forced her sexual desires against her and secured it with threats of violence. There was no free consensual sexual intercourse with your victim.

20. Carefully weighing the factors for and against you, the aggravating factors in my view, outweigh the factors in your mitigation. If it were not for the amendment to the penalty provision for rape, I would have imposed a sentence beyond the prescribed maximum of 7 years. However, given that provision on penalty, this Court has no power to impose a sentence against you that goes beyond that limit. I am therefore constrained to impose a sentence not exceeding 7 years. Then considering the sentences I have imposed in the case of Douglas Natilis (supra) and the Francis Angosiwen as well as the one my brother Sevua J., imposed in the Tikiria Amos case, which were all cases of a father abusing their own biological daughters, I consider a sentence of 5 years is appropriate and I impose that sentence against you. Of that sentence, the period of 10 months 28 days you have already spent in custody awaiting your trial is deducted, leaving you with the period of 4 years and 1 month and 2 days yet to serve in hard labour at the Ningerum Correction Services. A warrant of commitment in those terms shall issue forthwith.

__________________________
Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the State

^[1] (Unreported and Unnumbered judgments, 2004).
^[2] (21/06/04) N2670.
^[3] (13/05/03) N2454.
^[4] (03/02/04) N2521.
^[5] (12/10/01) N2295.
^[6] (19/09/05) N2614.
^[7] [1994] PNGLR 71.