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State v Jimbe [2012] PGNC 319; N5165 (2 November 2012)

N5165

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 361 OF 2008

BETWEEN

THE STATE

V

SPANGIE JIMBE

CRIMINAL LAW – Sentence – Incest – Brother/Step-sister relationship – Plea of guilty – Certain degree of consent – Prior conviction of unlawful carnal knowledge of same victim – Two children born to incestuous relationship – Worst offence – Maximum penalty of 7 years imposed – Criminal Code Ch. 262, s 223

Cases Cited:

The following cases are cited in the judgement
State-v- MKB [1976] PNGLR 197
Mitige Neheye v. The State [1994] PNGLR 71
The State v Francis Angosiwen (No.2) (2004) N2670
The State –v- Douglas Natilis (unreported and unnumbered judgement (2004)
The State v. Tikiria Amos (2005) N2614
The State v Michael Siwir (2006) N3382
The State v Sevi Kwetok (2006) N3389
The State v. Tom Feri (2008) N3305
The State v. Samuel Kawar(2011) N4234

Counsel:
M. Ruarri and D. Kevin, for the State
A. Ninkama and D. Sopane, for the Accused

SENTENCE

02nd November, 2012

1. TOLIKEN AJ: Spangie Jimbe, on the 13th August 2012 you pleaded guilty before me to one count of incest. I was satisfied after I had read the material in your committal file that the evidence supported your plea and accordingly confirmed it. I wasn't able to pass down my sentence then. I do so now.
   

THE FACTS

2. The facts on your case are very brief. Between the 1st of January 2007 and 31st of September 2007 at East Ambogo Block, you sexually penetrated your half sister Nosick Jimbe. You were in fact living in some sort of a marital relationship. It seems that you took your sister away from your elder brother soon after you were released from jail after serving a sentence for a previous charge involving the same victim. You impregnated your sister and she gave birth to your child in September 2007. Your elder brother was not happy about this because even though you and Nosick have different mothers you have one father only. So he reported you to the police and you were accordingly charged with incest.
   

ANTECEDENTS

3. You are 35 years old and come from Manganjuji village, Finchafen, Morobe Province. You are a member of the Lutheran faith. You are married with 3 children. You were living at East Ambogo Block before your arrest for this offence. You have oil palm blocks there from which you sustain yourself.
   

You have no formal education and are an unsophisticated villager. You have been previously convicted for the unlawful carnal knowledge of the same victim and were sentenced to a term of 4 years on the 26th May 2003.

ALLOCUTUS

4. You apologised to the court for your offence. You asked the court to be merciful on you because you have left behind a lot of properties and your children, who, are not in school now. You said that you have been in custody since 8th October 2007.
   

SUBMISSIONS

Defence Counsel

5. Your lawyer Mr. Ninkama submitted that your case falls nearly within the worst case category not only because the victim is your half sister but also because you have been imprisoned already for the similar offence against her. He submitted also that there is need for deterrence and separation because your offence, as he put it, is "against the order of nature and society". He, however, said that there was an element of consent in your case so it was not as if you raped your step-sister too. Furthermore, you have already served a considerable period in pre-trial custody and he asked that this be appropriately taken into account. He said further that this period had been sufficiently reformative and rehabilitative for you and effectively separated you from the victim. He therefore suggested a period of 4-6 years less the period spent in custody which he further submitted should be wholly suspended with conditions that you will not deal with the victim and that you can keep the peace.
   
6. Counsel also referred me to cases which he said should guide me in arriving at an appropriate sentence. The State v. Daniel Kawar(2011)N4234; State v. Sevi Kwetok (2006)N3389; The State v. Tom Feri (2008)N3305)
   

Counsel for State

7. Mr. Ruarri for the State submitted that you have one prior conviction of unlawful carnal knowledge of the same victim. He said that out of that, the first child of the victim was born. A second child was born as a result of the subsequent incest for which you are now before the court.
   
8. He referred me to the case of Mitige Neheye v. The State [1994] PNGLR 71 where the Supreme Court set down sentencing guidelines for the crime of incest. He also referred to the following cases: - The State –v- Michael Siwir (2006) N3282(adult male/niece-6 years); The State-v-Sevi Kwetok (supra) (cousin brother/sister-5 years); The State –v- Francis Angosiwen(2004) N 2670-father/daughter- 7 years). Because this is not your first offence against your half sister counsel submitted that a deterrent sentence should be imposed.
   

THE LAW

9. The offence of rape is provided by S. 223 of the Criminal Code Act (as amended). It says:

223. Incest

(1) A person who engages in an act of sexual penetration with a close relative is guilty of crime.

Penalty: Imprisonment for a term not exceeding 7 years.

(2) For the purposes of this section, a close blood relative means a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent, grandchild, aunt, uncle, niece, nephew or first cousin, being such a family member from birth and not from marriage or adoption.

(3) ...

9. The crime of incest is a serious attack on societal norms and morals and more so the family unit. As noted by this court on the State-v- MKB [1976]PNGLR 197, the true rational of the criminal law in respect of incest is to enforce our moral values and beliefs and therefore sentences given to offenders must reflect these and the public's abhorrence of the offence.
   
10. Sevua J. aptly described the crime of incest as driving a wedge between families and creating great disharmony within a family unit and that it breaks up marriages and sends children and mothers away from the matrimonial home, perhaps for some, into poverty: The State v. Tikiria Amos (2005) N2614. The crime of incest was once punishable by life imprisonment. Parliament, however, despite the ever increasing occurrence of the offence, in its wisdom, reduced the penalty to the current 7 years (Sexual Offences and Crimes Against Children) Act 2002(No.27 of 2002) s. 13).
    
11. This has attracted judicial comment by judges of this court, notably by their Honours Sevua J. (as he then was) and Kandakasi J. Kandakasi J. went to the extent of saying that Parliament had made a mistake in doing so: The State v. Tikiria Amos (2005) N2614; The State –v- Douglas Natilis (unreported and unnumbered judgement, 2004); The State –v- Francis Angosiwen ( No.2) (2004) N2670). Whether or not Parliament did in fact make an error is moot given the presumption of law that Parliament makes no error. However, the sentiments expressed by the judges are valid and ought perhaps to be taken seriously by the law-makers because, to not do so would be tantamount to condoning a social ill and criminal behaviour that cuts right through to the very fabric of the family unit.
    
12. Criminalizing sexual intercourse within the degrees of family relationships prescribed by s 223 (2) of the Code is the society's expression, through Parliament, of its disapproval of this type of behaviour. The crime of incest has increased markedly over the years and unless Parliament does something about increasing the penalty, this abhorrent behaviour will continue to flourish to the detriment of many families and the society as a whole. Until that happens, the State through the Public Prosecutor must, as suggested by Kariko J. in The State v Samuel Kawar (supra), exercise its independent discretion to lay charges with great care so that the appropriate charges are laid in circumstances where evidence establish rape (Section 347) or sexual penetration of a child under 16 years (s 229A) or persistent sexual abuse of a child (s 229D), so that appropriate sentences can be imposed on the guilty.
    
13. So while Parliament on its part may have seen fit and justified to reduce the penalty to a mere seven years, the courts are duty-bound to enforce and apply the law as they find it as best as they can. The courts have a duty to society to impose sentences within its powers that reflect the gravity and general abhorrence and distaste with which virtually all societies in Papua New Guinea view the crime of incest. While the courts are not judges of morality they have a moral and legal duty to enforce the people's will if they so choose to legislate against behaviours that are against morality, such as incest so that standard acceptable behaviour is maintained.
    
14. To paraphrase Martin Luther King Jr., speaking of the Christian Churches' duty to uphold Christian morals - which I find holds equally true for the judiciary's duty to uphold the law - the courts must not be like a thermometer, merely recording the mood in the society. Rather they should be like a thermostat, regulating, controlling, preventing and discouraging deviant criminal social behaviours that offend against morality and societal values. And the courts do this by imposing appropriate sentences, in appropriate cases, that reflect the seriousness and abhorrence with which the society views certain criminal behaviour.
    
15. For the crime of incest I must say that the courts have been doing exactly that prior to and after the reduction of the penalty by the Parliament. The Supreme Court in Mitige Neheye -v- The State (supra) set down sentencing guidelines for the crime of incest. While some of what the court said there have been overtaken by the amendments to the Code, much of what it said are still very much appropriate and binding. The court said:
    
    • (1) ...
    • (2) ...
    • (3) An act of incest committed without consent amounts to rape, and it is valid to apply the tariff for rape on this type of offence
    • (4) In sentencing, a distinction must be drawn between a consensual relationship and one based on force or intimidation.
      
    • (5) The following are matters that should be taken when considering sentences on incest:
      
      • (a) The relationship of the parties;
      • (b) The age of the victim;
      • (c) If force, threats or intimation were involved, and if so, the degree of such force, threat or intimidation;
      • (d) Whether it was consensual between adults;
      • (e) Over what period of time the incidents (if more than one) occurred;
      • (f) The number of times;
      • (g) Whether pregnancy ensued by reason of the defendant failing to take contraceptive measures;
      • (h) The comparative ages.
        
    • (6) The following are other aggravating factors regardless of the age of the victim:
      
      • (a) If the victim has suffered physically or psychologically from the incest;
      • (b) If it continued over a period of time;
      • (c) If the incest had been accompanied by perversions abhorrent to the victim;
      • (d) If the defendant has committed similar offences against more than one victim.
        

So what has been the trend of sentences since the amendments?

SENTENCING TREND

16. The cases that both counsel have referred to me reveal a sentencing range of between 5 – 7 years. Sentences have invariably been above the mid-range, aptly reflecting the court's attitude to incest.
    

YOUR CASE

17. The subjective circumstances of your case are that the victim is your half sister, the daughter of your father's third wife, whom you had previously violated when she was still a child. You were gaoled for 4 years for that in 2004 (CR 991 of 2003). A child was born out of that relationship. Now, almost immediately after you came out of gaol you pursued your sister and continued your incestuous relationship with her. In fact the material in your committal file reveals that you two were at the time of this offence living in what seemed to be some kind of marriage. A second child was born out of this second incident. The victim even indicated in her statement that she wished to marry you because she now has two children from you.
    

Factors in Mitigation

18. In your favour I take the following factors:
    
    1. You pleaded guilty to the offence hence saving time for the court in running a trial.
    2. The incest seemed to have been consensual to a certain degree.
    3. You are an unsophisticated and uneducated villager.
       

Aggravating Factors

19. Against you, though, I find the following factors:
    
    1. You are not a first time offender. You have previously been convicted and gaoled for violating your sister when she was a child.
       
    2. Two children have now been born to this incestuous relationship, the last of who is the result of the current charge.
       
    3. I do not believe that you are remorseful of your offence. You were more concerned about your oil palm blocks. But while you have some concern over your children's welfare, what may befall them in your absence, and the fact that you will not be around to care for them, is the consequence of your own action.
       
    4. The relationship is one of brother and sister where it is expected that you as an older brother would show her respect and treat her with dignity and brotherly love.
       
    5. This was a continuous relationship.
       
    6. There was a 9 years age disparity between you and your sister.
       

So what would be an appropriate sentence for you?

APPROPRIATE SENTENCE

20. Your lawyer submitted that your aggravating factors are on an equal footing with your mitigating factors. I do not entirely agree with this. But even if they were, the mitigating and aggravating factors are not equal or on equal footing as put by your lawyer, simply because they even out numerically. What is important is the quality of the factors relied upon and how they individually and collectively affect the degree of culpability and the manner and circumstances in which the offence was committed, the steps taken by the prisoner to make reparations and/or reconciliation with his victim or not to re-offend before conviction and sentence.
    
21. Your lawyer also said that the period that you have spent in custody awaiting your trial had been reformative and rehabilitative for you. Unfortunately this is a bare statement that is devoid of any substance as there is nothing before me to show that you in fact have reformed. I view your offence to be very serious because they feature some of the characteristics mentioned in the Mitige Neheye guidelines (above). This is one case that must attract the maximum penalty to not only punish you but also as a measure to separate you from the victim.
    
22. Yes, I do accept that there was consent on the part of the victim. The quality and genuineness of that consent, however, concerns me. The victim when yet a child had already been violated by you and had her first child from you (and of course she now has your second child). She may have therefore been concerned about the welfare of her child when she consented to the continuation of the relationship after you came out of gaol. In my view then, the fact that you pleaded guilty and that the victim may have consented do not out-weigh the necessity to impose a sentence that will not only punish you adequately but also separate you from the victim.
    
23. It will also send out a message to you and other like-minded persons out there in the communities that this type of offence will not be tolerated because of the damaging effect it has on family relationships and the cohesion within the family unit that are very important in our Melanesian societies. Furthermore, it must not be forgotten that victims, and children who are born from incestuous relationships, are often subject to a lifetime of stigma from other members of the nuclear, as well as the extended family, clan and the community in general. Some are ostracized altogether by their families.
    
24. The above are the reasons why I think your case deserves the maximum penalty of seven years imprisonment.
    
25. I therefore sentence you to 7 years imprisonment in hard labour less the 4 years, 10 months and 10 days that you were in remand awaiting your trial. You will therefore serve 2 years 2 months and 22 days at the Biru Corrective Institution. There will be no suspension of your sentence, either wholly or partially.
    

Orders accordingly.

The Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Accused