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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 657 OF 2021
THE STATE
V
THOMAS TAPO
Kimbe: Numapo J
2021: 17th June & 16th July
CRIMINAL LAW – Sentence – Incest – Plea of guilty – Father and daughter – Victim fell pregnant – Against society’s moral values and decency - Gross betrayal of most sacred relationship of father and daughter -Deterrent sentence with punitive effects.
Held:
(i) A sentence imposed on incest must reflect the seriousness of the offence and society’s demands for tougher penalties on sexual deviants, sadist and predators.
(ii) Incest between father and daughter is a gross betrayal of a most sacred relationship and is outrageously immoral and against the society’s accepted norms and values.
(iii) Breach of an existing parental relationship of trust, authority and dependency is an aggravating circumstance.
(iv) Prisoner sentenced to Five (5) years imprisonment less the pre-trial custody period.
(v) No Suspended Sentence.
Cases cited:
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92
John Aubuku v The State [1987] PNGLR 267
State v Nehaya [1989] PNGLR 174).
State v Raphael Torona (2007) N4970
State v Willie Mas Sangep (2012) N4684
State v Philipo [2012]; N5746
State v Batari [2005] PGNC 317; N6966
Counsel:
A. Bray, for the State
J. Kolowe, for the Defence
SENTENCE
16th July, 2021
1. NUMAPO J: This is a decision on sentence. The offender THOMAS TAPO aged 43 years old from Pomugu village, Kandrian, West New Britain Province pleaded guilty to one count of Incest, contrary to section 223 (1) of the Criminal Code Act Ch. 262.
2. The facts to which the offender pleaded guilty were that; on the 21st day of October 2020 at Pomugu village, Kandrian the accused penetrated the victim by inserting his penis into her vagina. The offender knew that the victim was his biological daughter when he sexually penetrated her. Further facts revealed that the incestuous relationship started in February 2020 and continued until the victim fell pregnant. The offender forced the victim to have sex with him and threatened to harm her if she reported the matter. Victim had to leave school when she found out she was pregnant. She was 14 years old at the time.
3. Section 223 (1) of the Criminal Code reads:
223. INCEST
(1) A person who engages in an act of sexual penetration with a close blood relative is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years.
(2) For purpose of this section, a close blood relative means a parent, son, daughter, siblings (including 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) No person shall be found guilty of an offence under this section if, at the time the act of sexual penetration occurred, he was under restraint, duress or fear of the other person engaged in the act.
4. Incest between father and daughter normally attracts a sentence of between 2-5 years for an ordinary consensual incestuous relationship according to current sentencing trend. The sentence is however, increased where the father used threats of violence to procure sex and deliberately exploits his position as the head of the family to systematically seduce and abuse his daughter over a period of time through a series of sexual encounters. The seriousness of the offence is further increased where the daughter is of a minor age, becomes pregnant or get infected with STD. The pregnancy of the victim is a circumstance of aggravation.
5. Although, the Supreme Court did not set out a clear sentencing guidelines for incest cases or other similar defilement cases, in John Aubuku v The State [1987] PNGLR 267, the Court reasoned that for incest case where evidence of force and threats are present akin to rape, the starting point should be 5 years imprisonment. The sentence may increase further depending on the gravity of the offence based on the aggravating factors and circumstances.
6. In the present case, the offender threatened to cause harm to his daughter (victim) if she reported the matter to anyone. The incestuous relationship started in February 2020 and continued until October 2020 when they were caught by the victim’s aunt having sex. I have no doubt in my mind that, had they not been caught, the sexual relationship would have continued. I say this because according to evidence there is some degree of acceptance of that sexual relationship on the part of the victim. The victim in her statement to the Court contained in the Pre-Sentence Report stated that she only mentioned once to her mother of what her father did to her. Her mother warned the offender not to do it again. Despite the warning the offender continued with the incestuous relationship and the victim eventually came to accept it and did not report it again to her mother or any other person until she fell pregnant.
7. The victim’s lack of interest in reporting the matter raises a lot of questions. Is she too afraid and ashamed to report the matter to other people including the Police? Or is it the feeling of guilt that stops her from bringing this ‘taboo’ subject into the public domain by reporting it? Victim has never given any reason why she did not report the matter to anyone apart from her mother.
8. All in all and whatever the circumstances that might be, any incestuous act between father and daughter is a gross betrayal of most sacred relationship and is outrageously immoral and against society’s accepted norms and values. It is a breach of trust reposed on the offender as a father. It is also a breach of parental responsibility. (State v Nehaya [1989] PNGLR 174).
9. The victim has given birth and has gone to live with her maternal uncles in her mother’s village. In her statement to Court, she said she wants the prisoner to pay compensation to her maternal uncles for the “shame” according to custom. She has suffered both physically and psychologically from this and will live with it for the rest of her life.
10. I have taken into account the offender’s early guilty plea that has saved the victim the trauma of re-living the whole thing again by giving evidence at a trial. This will be a mitigating factor in favour of the offender.
11. The factual circumstances of the case being the aggravating and mitigating factors are taken into account in deciding what should be the appropriate sentence to impose but as to how much weight is given to those factors is entirely at the discretion of the Court.
12. These are as follows:
13. Counsels cited a number of comparable case laws to assist the Court in deciding an appropriate sentence for this case based on the current sentencing trend on incest. I refer to them below:
(i) State v Raphael Torona (2007) N4970
14. The offender pleaded guilty to having sex with his own biological daughter and made her pregnant. He was sentenced to 5 years less the pre-trial custody period.
(ii) State v Willie Mas Sangep (2012) N4684
15. The offender pleaded guilty to one count of incest. He had sex with his younger sister’s 16 year old daughter, his niece and making her pregnant. He was sentenced to 4 years less the pre-trial custody period. 3 years remaining of the sentence was wholly suspended as reconciliation has taken place between the offender and the victim’s family.
(iii) State v Philipo [2012]; N5746
16. The two prisoners were first cousins who were involved in a continuous incestuous relationship for over 4 years. The co-offender became pregnant. Both offenders pleaded guilty and were sentenced to 4 years less the pre-trial custody period. None of the resultant sentence was suspended.
(iv) State v Batari [2005] PGNC 317; N6966
17. The offender had sexual intercourse with his biological daughter on two separate occasions resulting in her becoming pregnant. The victim was 16 years at the time. Offender was sentenced to 2 years on count one and 4 years on count two. Sentence was made cumulative with 3 years suspended.
18. The offender is married and has 9 children. The victim is his second daughter. He is 43 years old and comes from Pomugu village, Kandrian Inland LLG, West New Britain Province. He completed his grade 10 at Kandrian High School in 1997. He commenced employment as an Elementary School Teacher in 2002 and receives K700 a fortnight.
19. According to the offender’s wife, Francisca, they have never had a happy marriage life. They always have arguments at home and sometimes fights. When she heard about what incestuous relationship she was devastated. She confronted the offender and told him to stop having sex with their daughter. However, he blamed her for taking contraceptive pills that stopped her from bearing anymore children which upsets him. He took out his frustrations by having sex with their daughter.
20. The Village Chief of Pomugu, Alois Riru described the offender as a drug addict and is always drunk with homebrew. Incest is strongly condemned by custom and the penalty is very severe for those who committed the offence. He described the offender as a total disgrace to the community. He wants the offender to be punished appropriate for the crime he committed.
21. In his allocutus, he said:
“I want to say sorry to my family for what I have done to them. I say sorry for breaking the laws of this country. I ask for the mercy of this Court for a suspended sentence. That is all.”
22. Counsels submitted that the Court be guided by the Supreme Court decisions in Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92 that maximum penalty is reserved only for the worst type offence.
23. A number of factors are taken into consideration in sentencing. Firstly, the sentence imposed on incest must reflect the seriousness of the offence and society’s demands for tougher penalties on sexual predators, deviants and sadist. Secondly, the abuse of trust, authority and dependency and the breach of parental responsibility demands that the offender is given a custodial sentence. Thirdly, an incestuous act committed on one’s own biological child especially, someone of a minor age, is a circumstance of aggravation of the more severe kind and must be strongly condemned. Finally, a person who commits such offence has lost his moral compass and is a threat to the community and must therefore, be punished appropriately with a kind of sentence that has a deterrent effect.
24. Again, I reiterate that the victim will live with this shame for the rest of her life. She left school at grade 3 when she fell pregnant. Her chances of getting further education was cut short all because of what the prisoner (her father) did to her.
25. I sentence the prisoner to Five (5) Years imprisonment.
26. Pursuant to Section 3 (2) of the Criminal Justice (Sentences) Act, I deduct Eight (8) Months for the pre-trial custody period.
27. Prisoner is to serve the balance of Four (4) Years and Four (4) Months in hard labour.
No suspended sentence.
Orders accordingly.
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence
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