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State v Mandari [2007] PGNC 182; N4969 (18 September 2007)

N4969

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 872 0F 2007

THE STATE

V

PETER MANDARI

Buka: Cannings J
2007: 5, 7, 12, 18 September

CRIMINAL LAW – sentence – five counts of incest – Criminal Code, Section 223 – offender had sex with his daughter, making her pregnant – guilty plea entered at close of the State's case in a trial at which offender originally pleaded not guilty – total sentence of 14 years.

A man pleaded guilty to five counts of incest. He had sex on five occasions with his natural born daughter, causing her to become pregnant and give birth. He had originally pleaded not guilty but changed his plea after the close of the State's case.

Held:

(1) When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle.

(2) The following notional sentences were passed: count 1 = 4 years; count 2 = 4.5 years; count 3 = 5 years; count 4 = 5.5 years; count 5 = 6 years; resulting in a total potential sentence of 25 years.

(3) The offences were committed over a period of seven months, so the sentences should be served cumulatively.

(4) However, the totality principle requires that the total sentence be reduced, to avoid imposition of a crushing sentence. Accordingly the court imposed a total head sentence of 14 years apportioned as follows: count 1 = 2 years; count 2 = 2 years; count 3 = 3 years; count 4 = 3 years; count 5 = 4 years.

(5) The pre-sentence period in custody was deducted, and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Francis Angosiwen (No 2) (2004) N2670
The State v Mitige Neheya [1988-89] PNGLR 174

SENTENCE

This was a judgment on sentence for incest.

Counsel

L Rangan, for the State
P Kaluwin, for the offender

18 September, 2007

1. CANNINGS J: This is a decision on sentence for a man who during the course of a trial in which he originally pleaded not guilty, after the close of the State's case, pleaded guilty to five counts of incest arising from the following facts. He sexually penetrated his eldest daughter, "J", then aged 16, on five occasions over a seven-month period from mid-2006 to January 2007 in or near the family home at Madehas Island, off Buka Island. On each occasion he inserted his penis into her vagina. J was a close blood relative, not through marriage or adoption. The first offence was committed in the garden near the family home. The other offences were committed in the family home. As a result J became pregnant and gave birth. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction for incest under Section 223(1) of the Criminal Code. The crime of incest is committed when a person engages in an act of sexual penetration (as defined by Section 6) with a "close blood relative" (as defined by Section 223(2)).

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

This trouble happened because my daughter's mother was always suspicious of my intentions towards our daughter. I have compensated my daughter by giving her K1,100.00 cash. I apologise to my daughter for what I have done, and I apologise to the community, to the court and to God. I ask for mercy and that the court considers a lenient sentence.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). The only significant mitigating factor amongst all that material is that he co-operated with the police and made admissions in his police interview. This makes his original plea of not guilty look surprising but it appears that he pleaded not guilty so he could run a defence (later abandoned) that the victim was his step-daughter, not his biological daughter.

PERSONAL PARTICULARS

5. Peter Mandari is from the Bogia area of Madang Province. He has lived in Bougainville for 24 years. He married the victim's mother, "G", in 1989, and they had three children, the victim, "J", being the first-born. He has never been formally educated or employed. Both parents are still alive.

SUBMISSIONS BY THE DEFENCE

6. Mr Kaluwin highlighted the guilty plea. Even though it was made late, it did save some of the court's time. The offender made admissions to the police and this is his first conviction. He will have to live with the stigma of what he did for the rest of his life. There is an element of consent as most of the offences were committed at night in the family home and other members of the family must have known what was going on. Also his wife's jealousy of the relationship he had with is daughter provoked him into doing what he did. A total sentence of six years would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Rangan submitted that this was a serious case of incest as the sexual relationship was not consensual. The guilty plea was entered very late after his daughter and wife gave evidence against him. He has seriously interrupted his daughter's well being and her life, as she has been forced to abandon her schooling. He has also condemned the child that was born to a very difficult life as people will come to know of whom the child's father is and make fun of the child. A long custodial sentence is warranted.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what other sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted from each head sentence?
• step 8: should all or part of each sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 223 of the Criminal Code provides that the maximum penalty for incest is seven years imprisonment. The maximum used to be life imprisonment but amendments to the law made by the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002, changed the elements of the offence of incest and the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of three years, six months as the starting point.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. There are few reported decisions on sentencing for incest under the new sentencing regime. In The State v Francis Angosiwen (No 2) (2004) N2670 Kandakasi J imposed the maximum of seven years in a trial involving a man found guilty of incest in relation to his daughter.

STEP 4: WHAT IS THE HEAD SENTENCE?

12. I will first consider count No 1 (the offence committed in the garden). I will fix a head sentence for it after applying a range of considerations, highlighting the mitigating and aggravating factors. Then I will fix head sentences for the remaining counts.

Count No 1

13. There are a number of considerations to take into account in deciding on a sentence for incest, as set out by Brunton AJ in The State v Mitige Neheya [1988-89] PNGLR 174. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 9 focus on the circumstances of the incident. Numbers 10 to 15 focus on what the offender has done after the incident and how he has conducted himself. Numbers 16 and 17 look at the personal circumstances of the offender and gives an opportunity to take into account any other factors not previously considered.

1. Is there only a small age difference between the offender and the victim? No – the offender was aged about 39 and the victim 16, an age difference of 23 years.
   
2. Was the complainant of a mature age at the time of the offence? No, she was only 16.
   
3. Was there consent? No. I reject Mr Kaluwin's submission that there was any consent. The offender's daughter was confused and upset by what her father did to her.
   
4. Was the form of penetration other than penile penetration? No.
   
5. Did the offender not use a threatening weapon and not use aggravated physical violence? Yes.
   
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the complainant? Yes.
   
7. Did the incident have only a minimal impact on the victim? No, in the absence of evidence to the contrary it must be presumed that the emotional impact on a young woman of being molested by her father and would be severely adverse and permanent.
   
8. Was there no relationship of trust, dependency or authority between the offender and the complainant or, if there was such relationship, was it a distant one? No – the offender was her father.
   
9. Was it an isolated incident? No, it was the first of a series of incidents.
   
10. Did the offender give himself up? No.
    
11. Did the offender cooperate with the police in their investigations? Yes.
    
12. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did? Yes, he has paid some compensation.
    
13. Has the offender not caused further trouble to the complainant or the complainant's family since the incident? Yes.
    
14. Has the offender pleaded guilty? Yes, but the weight to be given to this as a mitigating factor is reduced by the lateness of the plea. It was only made after the victim and her mother gave evidence in court and were subject to cross-examination.
    
15. Has the offender genuinely expressed remorse? Neutral. The offender apologised to his daughter in his allocutus, but the genuineness of his remorse is neutralised by the late guilty plea.
    
16. Is this his first offence? Yes.
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral.
    

14. To recap, mitigating factors are:

• No 5 – no physical violence;
• No 6 – no physical injury or STD;
• No 11 – co-operated with police;
• No 12 – compensation;
• No 13 – no further trouble;
• No 14 – pleaded guilty;
• No 16 – first offender.
  

15. Aggravating factors are:

• No 1 – large age gap;
• No 2 – victim only 16 years old;
• No 3 – no consent;
• No 4 – penile penetration;
• No 7 – emotional impact on victim;
• No 8 – breach of trust;
• No 9 – not an isolated incident;
• No 10 – did not give himself up.
  

The remaining factors (Nos 15 and 17) are neutral. There are seven mitigating factors compared to eight aggravating factors. Having regard to the strength of the aggravating factors, a sentence above the starting point is warranted. The sentence I impose is four years imprisonment.

Remaining counts

16. The offences were committed over a period of seven months, giving the offender ample time to think of what he was doing and try to mend his ways. It follows that each offence was more serious than the previous one. I also have to take into account that as a result of one of the occasions on which he penetrated his daughter, she became pregnant and has recently given birth to his child. Taking account of those factors, the sentences I impose are:

Count 2 = 4.5 years;

Count 3 = 5 years;

Count 4 = 5.5 years;

Count 5 = 6 years.

Summary

17. The total potential sentence the offender is facing is:

4 + 4.5 + 5 + 5.5 + 6 = 25 years imprisonment.

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

18. I now have to decide whether the head sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together). In Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 the Supreme Court held that in deciding whether sentences should be made concurrent or cumulative the following principles apply:

(i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

(ii) Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.

(iii) When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

19. I consider that, though there was a great similarity amongst all the offences and the victim was the same, they were committed over a seven-moth period and cannot be regarded as being part of the one transaction. Therefore the sentences should be served cumulatively. The total sentence, subject to the totality principle, remains 25 years imprisonment.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

20. I now look at the total sentence the offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence. I consider that 25 years would be excessive. Having regard to all the circumstances, I impose a total head sentence of 14 years imprisonment, apportioned as follows: count 1= 2 years; count 2 = 2 years; count 3 = 3 years; count 4 = 3 years; count 5 = 4 years.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

21. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is seven months, two weeks, two days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

22. There is no pre-sentence report before the court and I have not been informed of any reconciliation or forgiveness. No material has been presented that warrants suspension of any part of the sentence.

SENTENCE

23. Peter Mandari, having been convicted of five counts of incest, is sentenced as follows:

Sentenced accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender