Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Keipa [2018] PGNC 124; N7217 (15 March 2018)

N7217

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1932 OF 2016

THE STATE

V

ABEL KEIPA

Popondetta: Liosi J
2018: 12^th & 15^th March

CRIMINAL LAW – Sentence – Incest – 1 Count – Plea – Father/Biological daughter relationship – One off incident – Not worst offence – Mitigating and Aggravating factors considered –

Case Cited:
Goli Golu v. The State (1979) PNGLR 653
Mitige Neheye v. The State (1994) PNGLR 71
The State v. Augustine Batari N6966
The State v. Jimbe (2012) N5611
The State v. Jonathan Kainamale (2016) N6436
The State v. Tamti N1878
The State v. Tiun N2129
The State v. Tikinu Amos N2614

Counsel:

Mr. D. Kuvi, for the State
Mr. P. Palek, for the Accused

DECISION ON SENTENCE

15^th March, 2018

1. LIOSI J: Abel Keipa on the 13^th March 2018, you pleaded guilty to 1 Count of Incest that you on the 25^th December 2015 at Dembada, Oro Province, sexually penetrated one Cebstine Gagida Keipa by inserting your penis into her vagina. She is your biological daughter.
   

Facts

2. You pleaded guilty to the following facts. The complainant was previously living with her elder brother in Lae, Morobe Province before she moved back to live with you here at Dombada, Oro Province in 2007. She was married and gave birth to a son. However because of your continuous arguments with her, the husband left. She continued to live with you and your wife. On the 25^th of December 2015, the State alleges that the complainant was sleeping at around mid-night when you opened the door to her room, went in and had sexual intercourse with her. You inserted your penis into her vagina and sexually penetrated her thereby contravening section 223 of the Criminal Code.
   

Law

3. The Offence of Incest is provided by S.223 of the Criminal Code. It says:
   

Section 223 Incest

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

Penalty: Imprisonment for a term not exceeding 7 years.

(2) ..................

4. This does not mean that you will be sentenced to the maximum term of 7 years. This is because the maximum penalty is always reserved for the worst kind of cases. Any sentence will depend entirely on the merits and circumstances of each case: Goli Golu v. The State (1979) PNGLR 653.
   

Sentencing Issues

5. I will therefore have to determine a sentence that is appropriate to the

circumstances of your case. So firstly I will have to determine whether your case falls within the worst category of incest. If I find it is then I have the discretion to impose the maximum. If not I can impose a lesser penalty.

Antecedents

6. You are 70 years old and come from Dombeta Village Oro Bay, Oro Province. You are married with 6 children who are all now married. You are from the Anglican faith. You have no prior convictions.
   

Allocatus

7. In your allocatus you said and I quote:
   

“I am very sorry to the court, to my family and my children. I sustain my living by the cocoa farm I have. I have cocoa, coconut and betelnut plantations. My children are married but separated so I am looking after them. I also harvest sea cucumbers and sell them to pay school fees. I am at fault and I will accept whatever penalty the court gives me”.

Submissions

8. Your lawyer submits that maximum penalty is 7 years but that is reserved for the worst offences. The aggravating factors involved a serious breach of trust, authority and the prevalency of the offence. The mitigating factors include your plea of guilty showing your remorse, your lawyer has also referred me to a number of comparable cases to assist me.
   

They are the State v. Tiun N2129. The prisoner pleaded guilty to 1 Count of incest – 6 years was imposed. In the case of the State v. Tamti N1878, a threat was used and the daughter was impregnated. Eight (8) years was imposed. He submits an appropriate sentence for you would be 4 years imprisonment in hard labour.

9. Mr. Kuvi on the other hand submits the aggravating factors include a serious betrayal of trust. The crime is against moral fabric of society and is a prevalent offence. He has also referred me to a number of cases. They included; The State v. Tikirn Amos (2004) N2614, the prisoner pleaded guilty to 3 Counts of incest – 32 years was imposed and The State v. Augustine Batari N6966 – the prisoner pleaded guilty to 1 Count of incest – 6 years was imposed.
   
10. A Pre-Sentence Report was filed on your behalf. I note the concerns raised by the victim and your wife. Both are supportive of you despite what you did. In particular the victim has moved on with her life. She has remarried and has 11 months old son and is living with her husband at his Hanau Village. She has nonetheless asked the court to give you a strong warning on repeating the offence.
    

Mitigating and Aggravating factors

11. In your favour I take the following factors:
    
    • You pleaded guilty
    • You co-operated with the police by your early admissions
    • You are a first time offender
    • You have shown remorse
    • You did not use any force or violence
    • You did not cause any injury
    • This was an isolated incident
      
12. The aggravating factors I find against you is that this is a serious breach of trust as the victim is your biological daughter and the offence is a prevalent one.
    

Principles of Sentencing

13. In the State v. Jimbe (2012) N5611, the prisoner was sentenced to maximum penalty. He was previously jailed for committing incest on his half-sister giving her a child. The court therein said:
    

“The crime of incest is a serious attack on society’s norms and morals and more so the family unit. In the State v. MKB (1976) PNGLR 197, the court said the true rationale 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.”

14. Both lawyers have cited several cases to assist me to arrive at an appropriate sentence. Most of the cases cited and the ones I have referred to appears to be more serious than the current case. That is that pregnancy ensured. Mitige Neheye v. The State (1994) PNGLR 71, set down sentencing guidelines for incest and matters that should be taken into account when sentencing. They include:
    • relationship of parties
    • age of victim
    • whether force, threats, intimidation were involved
    • number of times
    • whether it was consented between adults
    • period of time over which it occurred
    • number of times
    • whether pregnancy ensured
    • comparative ages

15. What then should be appropriate sentence for you?
    

Appropriate sentence

16. Your case does not fall into the worst category bearing in mind the principles in Neheye v. The State. This was a one off incident. On the night of the incident, you went home drunk. You saw your daughter sleeping alone in your house and you touched her body and had sex with her without using force. The complainant did not suffer any physical injuries. You pleaded guilty.
    
17. In the circumstances, I sentence you to 3 years imprisonment in hard labour. I suspend the 3 years on the following conditions:
    
    • You are to enter into a good behaviour bond for 2 years.
    • You are not to commit any offence whilst on good behaviour bond.
    • You are not to consume any alcohol or alcohol related drinks.
    • Probation office is to regularly monitor the prisoner on this terms and conditions.
    • If any of this conditions are breached, the prisoner shall be rearrested to serve the balance of the pending term.
      

Sentenced accordingly.

___________________________________________________________
Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused