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State v Kinaliu [2006] PGNC 44; N3025 (24 February 2006)

N3025

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 394 OF 2004

THE STATE

-V-

JOHN KINALIU

KOKOPO: LENALIA, J.
2006: 21st & 24th February

CRIMINAL LAW – Unnatural Offence – Plea – Criminal Code s.210 – Matters for consideration – Sentence.

No cases cited.

Counsel:
Mr. Lukara Rangan, for State
Mr. Philip Kaluwin, for Accused

24th February, 2006

LENALIA, J: The accused pleaded guilty to one count of sexually penetrating an animal being a pig contrary to s.210 (1) (b) of the Criminal Code, Ch.262.

After the accused was arraigned, he pleaded guilty to the charge and the court entered a provisional guilty plea. After the facts had been tendered and read, I noted that in the record of interview, the accused had made denials in relation to sexually penetrating the pig. I enquired with Mr. Kaluwin if the instructions from his client were correct and if the plea entered was correctly entered. Mr. Kaluwin confirmed that although his client had denied the allegations during the record of interview, the accused had changed his mind as he wanted to plea to the charge. The court then confirmed the accused’s guilty plea and convicted him.

The brief facts to which the accused pleaded guilty to are as follows. Two occasions prior to the 21st day of October 2003, the owner of the pig in this case Mrs. Theresa Pidik has heard her female pig making funny noises. The noises sounded to her like a male pig had been mating her female pig. On the second occasion she heard the noise she woke up in the morning and went to investigate why her pig had made so much noises the night before. Her pig was kept in the pig-fence adjacent to their house.

After visiting the scene, she noticed that, a part from the pig’s footprints, there was human footprints as well right on the pig-fence. She spoke to her husband about her discovery and both of them formed an opinion that, a human being had been courting their female pig. From there, they agreed to keep a watch.

Then on the above date, after attending a party staged by the youths, Mrs. Pidik, her husband and the children went home to their house. The children went straight to their beds while Theresa made tea for her husband. While they were sitting in their house, the accused came in and drank the cup of tea instead of Mrs. Pidik’s husband. After drinking his tea, the prisoner walked over to the table and placed the cup down and walked out without saying thank you to the couple as a sign of appreciation for offering her tea.

After he was gone, Theresa went to the kitchen and sat for sometime expecting that, the accused was going to return. However the accused did not return. Not long after that, Theresa heard her female pig making similar noises as though a male pig was having sex with her pig. Theresa got a dried coconut branch had it lighted up and when she walked out to where the pig was, she saw the accused standing naked behind the female pig with his erected penis inserted inside the female pig’s vagina committing bestiality with that pig.

It appears from the facts that, the prisoner has had the habit of committing bestiality with animals. One Peter Nongone also of Wairiki No.1 village where the accused comes from said in his statement that, one day in early 2002, he walked down to the prisoner’s small house; he found the accused naked standing behind a pig committing bestiality with it.

Another statement by Margaret Tavua reveals that on a date she cannot recall, she was sitting inside a trade store when she saw the prisoner lifting up the hind legs of a dog and she observed him to have been looking at the dog’s anus and that after a short look, he released the dog.

Law.

The accused is charged with committing an unnatural offence contrary to s.210 (1) (b) of the Criminal Code. That Subsection states:

(1) A person who –

• (a) sexually penetrates any person against the order of nature; or
  
• (b) sexually penetrates an animal; or
  
• (c) permits a male person to sexually penetrate him or her against the order of nature,
  

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

The case before this court is more than a mere attempted bestiality. The prisoner could be sent to prison to the prescribed maximum term of not more than 14 years. Unfortunately, the pig being an animal, cannot speak for herself since by nature, it cannot speak its mind.

In allocutus, the prisoner said, he is sorry for committing this offence. He said sorry to God and to his community. It was submitted on behalf of the accused in mitigation that, the court should consider the fact that the prisoner is a first time offender.

He is not however a youth as he is now 30 years of age. It was further submitted that, the nature of this offence is such that the accused will live with the stigma of what he did as people will look at him with great contempt. It was submitted on behalf of the prisoner that, he should be given a suspended sentence.

I do not agree that a totally suspended sentence should be imposed as I feel that, the public must be made aware that committing an unnatural offence with any animal is an offence and the law protects animals as much as human beings. The prisoner offended against nature as only pigs can mate and sexually penetrate pigs.

This is an offence against the standard and moral values of decency. By nature a pig is a source of protein food for human consumption. Human beings were created for many reasons. One or two of those reasons is that, there must be human affection toward persons of opposite sexes. There after, love is expressed by a couple having that intimate relationship we call ‘sexual intercourse’.

Sex is only a very minor part of that love relationship between a man and woman. But in you case, the court will not believe that you fell in love with a pig. For this reasons, the court is of the view that, a punitive custodial sentence should be imposed. The prisoner is sentenced to a term of 3 years imprisonment in hard labour. The court suspends one year from the head sentence on condition that after you have served 2 year you shall enter into recognition to keep the peace and be of good behaviour for one year. The time you have spent in custody shall be deducted.
__________________

Lawyer for The State: THE PUBLIC PROSECUTOR
Lawyer for Accused; THE PUBLIC SOLICITOR