Papua New Guinea Law Reports - 1983
[1983] PNGLR 424
SC265
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
THE PUBLIC PROSECUTOR
V
VANGU’U AME
Waigani
Kidu CJ Kaputin McDermott JJ
25 October 1983
14 December 1983
CRIMINAL LAW - Sentence - Appeal against sentence - Incest - Non custodial sentence imposed - Effect of custodial sentence on welfare of children - Accused with sole care of children - Custom - Evidence of custom - Error in principle - Sentence of two years substituted.
The father with the sole care of four young female children, was convicted of incest with his adult sister, and the passing of sentence was deferred upon his entering into a two year good behaviour bond, on the basis of the effect of a custodial sentence on the welfare of the children.
On appeal against inadequacy of sentence:
Held
(1)      (McDermott J not deciding) Although in sentencing it is proper to take into account the indirect effect of a person being given a custodial sentence such considerations must not be allowed to override the seriousness of the offence committed.
(2)      In sentencing, the effect a custodial sentence might have on the welfare of children of the accused, should not be allowed to outweigh the seriousness of the offence.
(3)      Custom may be taken into account on sentence only where there is proper evidence thereof.
(4)      (McDermott J dissenting) In failing to impose a custodial sentence for the offence of incest, the seriousness of which is reflected in the maximum penalty of life imprisonment, the trial judge had erred in law in the exercise of his discretion and a sentence of two years imprisonment ought to be imposed.
Cases Cited
Acting Public Prosecutor, The v. Konis Haha [1981] P.N.G.L.R. 205.
Acting Public Prosecutor, The v. Uname Aumane, Aluma Boku, Luku Wapulae and Piope Kone [1980] P.N.G.L.R. 510.
Cranssen v. The King (1936) 55 C.L.R. 509; (1936) 10 A.L.J 199.
Mauwe Antape v. The State [1981] P.N.G.L.R. 68.
Norris v. The State [1979] P.N.G.L.R. 604.
Public Prosecutor, The v. Nahau Rooney (No. 2) [1979] P.N.G.L.R. 448.
R. v. H. (1980) 3 A. Crim. R. 53.
R. v. Radich (1954) N.Z.L.R. 86.
R. v. Tait (1979) 46 F.L.R. 386; 24 A.L.R. 473.
Appeal
This was an appeal against sentence on the ground of inadequacy pursuant to s. 24 of the Supreme Court Act (Ch. No. 37).
Counsel
J Byrne, for the appellant.
D McMillan and E. V. Batari, for the respondent.
Cur. adv. vult.
14 December 1983
KIDU CJ: This is an appeal by the Public Prosecutor under s. 24 of the Supreme Court Act (Ch. No. 37) against an order by the National Court, which deferred passing of sentence upon the respondent upon his entering into a two year good behaviour bond. The order was made under s. 19(1)(f) of the Criminal Code (Ch. No. 262).
This is as far as I have been able to ascertain from the summaries of sentences by judges between January 1973 and 31 July 1983 the first time a person convicted of incest has been released without being sentenced.
An appellate court does not interfere in a case of exercise of discretion by a trial court unless it can be shown that the latter has made an error of law or fact. Such an error may be identifiable but if not identifiable the sentence may be shown to be, on the face of it, manifestly excessive or inadequate: See Norris v. The State [1979] P.N.G.L.R. 604; Mauwe Antape v. The State [1981] P.N.G.L.R. 68.
I now state briefly the pertinent facts relevant to this appeal. Between 1 September 1981 and 30 September 1981 the respondent had sexual intercourse with his sister, who was about twenty to twenty-two-years-old at the time, approximately nine or ten times. She became pregnant as a result and subsequently bore a child now just over a year old.
The respondent had married a woman from Goroka, Eastern Highlands Province. Four female children were issues of this marriage. His wife left him in 1978 when the youngest girl was only two months old. He was a dental therapist at the Goroka Base Hospital between 1968 and 1978. From the year 1979 he commenced working in Port Moresby. He lived in a hostel at Hohola and left his children with his sister in the village. In September 1981 he started visiting the village and spending weekends with his sister and the children and it was during this time the offence was committed. When the offence was discovered and reported to the police he subsequently left and has lived in Port Moresby with the children since then. The two older children attend Erima Community School and the two younger ones stay in the flat they occupy at Six Mile while the respondent is at work.
It is quite clear why the learned judge made the order, the subject of this appeal. I quote from his comments on sentence:
“I am most concerned about the welfare of those children.
I am not altogether prepared to accept submission of non-care by your relatives, but on the other hand this may well be true in view of the fact that their mother was from the Eastern Highlands. I am mindful that you may lose your employment as a result of the conviction. Your two elder children go to Erima Community School and they are totally dependent on you.
The lawyer for the Government has urged on me the seriousness with which the legislature treats this offence hence the life sentence and the custom view of your relatives.
I have been much troubled about the punishment I should impose taking all matters into account. The range of sentence being imposed presently by this Court averages at two years.
I consider your case a particularly special one because of the special circumstances surrounding your very young children, the fact that no one is immediately able to look after them, and in relation to the two that go to school, they may end up dropping out, if you were to be sent to goal.
In the end result, I am being merciful, for the welfare of the four young children, and I consider that the injustice caused them would be greater than by not sending you to goal — and therefore I will give you another chance.”
In sentencing it is proper to take into account the indirect effect of a person being given a custodial sentence. However, such considerations must not be allowed to override the seriousness of the offence committed. Incest is one of the most serious offences found in the Criminal Code and it carries a maximum penalty of life imprisonment. The maximum possible sentence for an offence prescribed by Parliament for any offence shows the seriousness of the offence:
“The term of imprisonment prescribed by the relevant section of the Crimes Act is the public expression on these matters through the legislative process. It is for the judge to determine how important they are in a particular case but always by reference to the seriousness of the crime itself as pronounced by the penalty provided by the statute.” R. v. H. (1980) 3 A. Crim. R. 53 at 65.
“The Legislature which reflects the community view of the degree of severity of various types of crimes has seen fit to prescribe a maximum penalty for this offence of penal servitude for fourteen years and an examination of the reported decisions of the criminal courts shows that it is an offence which is almost invariably visited with a goal sentence.” R. v. H. at 69 per Begg J
“... However, it should not override the clear dictates of the Parliament that those who commit the crime of wilful murder attract to themselves the possible penalty of imprisonment with hard labour for life. If Parliament represents the people of Papua New Guinea and the laws it makes reflect the attitude of the people, then courts must take heed.” I said this in Acting Public Prosecutor v. Uname Aumane, Aluma Boku, Luku Wapulae and Piope Kone [1980] P.N.G.L.R. 510 at 513.
In my view releasing a person convicted of a serious crime (incest) without sentencing him, plainly ignores the seriousness of the crime of incest as expressed by Parliament in s. 223 of the Criminal Code.
In his reasons I have quoted, his Honour said that he was not altogether prepared to accept submissions of non-care by respondent relatives, but on the other hand he thought that this may well be the truth in view of the fact that the mother of the children was from the Eastern Highlands Province. There was no evidence, nor was there any from which inferences could have been drawn, that because the children’s mother was from the Eastern Highlands Province the respondent’s relatives would not care for the children. No evidence was before the learned trial judge that the respondent’s children had been ostracized or disowned or made outcasts by his family. I quote from the evidence of Peter Kape:
“According to our custom it is a most shameful thing defendant has done and he is now an outcast within our family and our good name is degraded by the defendant.
...
Why did you stop me not to come home? Because you gave baby to your own blood sister so we do not want you to come home to us.” (Quote from another witness Pauline Hinehe)
There was absolutely no evidence that the children had been or would be rejected by the respondent’s family. Aoae Ame, a maternal uncle of the respondent said relatives were still cross at the respondent. He said that he was not aware that any relatives had come to town to look after the children. The court record also reads: “Sympathises — but own children to look after.”
Once again there is no evidence of rejection of the children. It seems that no proper attempts were made by counsel to inquire into this matter. Counsel should have gone out to Bereina and made inquiries. After all the respondent’s mother, two brothers and a sister still live at Veifa’a village.
Courts must be careful that children are not used by offenders to escape punishment they well deserve. In Papua New Guinea the family system is still strong, as evidenced by the well-known wantok system. This country has not reached the stage of the nuclear family system where a man and his wife and children live apart in isolation from other members of the immediate or extended family. The extended family system still obtains strongly in Papua New Guinea. It would take strong evidence for me to believe that if the respondent were to be gaoled for his crime his children would be left out in the streets.
The learned trial judge also assumed that because the children’s mother had come from the Eastern Highlands the respondent’s relatives would reject the children. Now, here there was an assumption based on evidence which was not before the learned trial judge. There is no evidence that the respondent’s family or people would not accept the children because their mother comes from another province of Papua New Guinea. The respondent had worked in the Eastern Highlands from 1968 to 1978. His wife left him in 1978 and returned to Port Moresby. From 1979 to either the end of 1981 or very early 1982 his children lived in Veifa’a village and presumably the two older children attended the school because they are now in higher grades since January last year. There is no evidence that during that time the children were rejected by the respondent’s family or people, because their mother came from the Eastern Highlands.
The view expressed in his Honours’ comments on sentence was without foundation.
Indirect effects of a man going to gaol, although proper considerations, must not be over-emphasized nor allowed to cloud the fact a person has committed a most serious offence. Justice, it has been said, must of course be tempered by mercy, but in my view not to the extent of allowing a person who has committed a very serious offence to, in fact, go free.
“... If a court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences.” R. v. Radich [1954] N.Z.L.R. 86 at 87 and quoted in The Public Prosecutor v. Nahau Rooney (No. 2) [1979] P.N.G.L.R. 448 at 518-519.
Section 7(3) of the Native Customs (Recognitions) Ordinance 1963 directs courts to take into account custom in determining penalty. Proper evidence should have been called to determine whether, in incest cases, the children of a man or woman, by custom, would be abandoned by relatives, members of the family or other people in the village because one of the parents comes from another province. Proper evidence should have also been called to determine whether in incest cases, such children would, irrespective of where their mothers or fathers came from, be disowned by the families.
It is clear that the learned trial judge has erred. I would allow the appeal, quash the order made by the learned judge and in its place substitute a penalty of two years’ imprisonment with hard labour. I would defer the execution of the warrant of commitment for a period of one week from today to ensure that the children are put in the custody of either their relatives or the Director of Child Welfare.
KAPUTIN J: The Public Prosecutor appeals against the inadequacy of sentence imposed by the National Court upon the respondent. He was convicted of a charge that he between 1 September 1981 and 10 September 1981 in Papua New Guinea carnally knew one Maigava Ame, who was his sister as he then well knew. It was laid under s. 223 of the Criminal Code (Ch. No. 262), the penalty for which is, subject to s. 19, imprisonment for life. The sentence was that he enter into his own recognizance in the sum of K300 to keep the peace and be of good behaviour for a period of two years.
The appeal lies without leave pursuant to s. 24 of the Supreme Court Act (Ch. No. 37) which provides:
“24.    Appeal by Public Prosecutor against sentence
(1)      In this section ‘sentence’ includes any order made on conviction with reference to the person convicted or his property.
(2)      The Public Prosecutor may appeal to the Supreme Court against any decision of the National Court, whether on appeal or sitting as a court of first instance, as to sentence, and the Supreme Court may in its discretion vary the sentence and impose such sentence as it thinks proper.”
The recent position of the law in this area has been well covered in the Supreme Court judgment of the Acting Public Prosecutor v. Konis Haha [1981] P.N.G.L.R. 205 at 209-211, where the majority decision of Kidu CJ, Andrew and Pratt JJ puts it thus:
“Crown appeals against sentence have no traditional part in the administration of criminal justice under the common law. Appeals by the Crown against sentences imposed by judges at first instance do not exist in the United Kingdom. They exist in Canada, New Zealand and five of the six Australia States: Criminal Appeal Act 1912 (N.S.W.) s. 5D; Crimes Act 1958 (Vic.) s. 567A; Criminal Code 1924 (Tas.) s. 401(2); The Criminal Code 1899 (Qld) s. 699A; The Criminal Code 1913 (W.A.) s. 688(2)(d): See R. v. Tait (1979) 24 A.L.R. 473 at 475.
In each of the Australian States with a Criminal Code similar to our own and with a provision very similar to our Supreme Court Act, s. 23, it has been held that upon the hearing of an appeal by the Attorney-General against any sentence pronounced, the Court of Criminal Appeal does not have an unfettered discretion of its own; the appeal is against the exercise of judicial discretion and should be determined by established principles. The principles to be applied in deciding whether a sentence is inadequate are the same as those applicable when the question arises of whether it is excessive: See R. v. Liekefett, Ex parte Attorney-General [1973] Qd. R. 355; R. v. Thomas [1975] Tas. S.R. 146, and R. v. Lawlor (1976) A.C.L. Digest case 082.
Section 23 of the Supreme Court Act and s. 21 (which provides for a convicted person’s right of appeal against conviction and sentence) do not provide any basis for distinguishing between the general principles to be applied by the appeal court when determining an appeal in either case. The principles which limit the exercise by an appellate court of the jurisdiction with respect to a discretionary sentence apply in each class of case: See R. v. Tait (1979) 24 A.L.R. 473 at 475, and Kovac v. The Queen (1977) 15 A.L.R. 637.
In Harris v. The Queen (1954) 90 C.L.R. 652, the High Court considered an appeal against sentence under s. 64(1) of the Papua New Guinea Act 1949 to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Court of the Territory. The court held that it would not interfere with sentence of imprisonment imposed unless it was satisfied that the discretion exercised by the court imposing the sentence miscarried or was unsound or unreasonable in its exercise.
An appeal against a sentence is an appeal from a discretionary act of the court responsible for the sentence and:
‘The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this Court to cases where the sentence appears unreasonable or has not been fixed in the due and proper exercise of the court’s authority.’ Cranssen v. The King (1936) 55 C.L.R. 509 at 519-520.
We agree with the reasons for judgment of Isaacs J in Whittaker v. The King (1928) 41 C.L.R. 230 and would not depart from the settled law of appellate discretionary jurisdiction. The jurisdiction under s. 23 of the Supreme Court Act whilst discretionary, is an appellate power to control an order that is itself discretionary. The appellate court will not interfere with the primary judge’s own exercise of discretion unless it is shown that the judge has not exercised his discretion or unless he has done so under a clear mistake. The discretion under s. 23 must be exercised ‘according to law’ or, in other words, judicially.”
Section 23 is now referred to as s. 24 of the revised Supreme Court Act.
In other words the court held that on an appeal against inadequacy of sentence by the State under s. 23 of the Supreme Court Act 1975 the Supreme Court does not have an unfettered discretion to vary the sentence appealed against and will only do so where it is clearly shown that the trial judge has fallen into error in the exercise of his discretion; and the principles to be applied are the same as those applicable when the question arises whether the sentence is excessive. The court acted on the principles that the sentences were so lenient as to indicate an error of principle and ought not to stand.
In the light of these principles I now turn to the present appeal.
In my view a number of identifiable errors have occurred. The main one as I see it, is that the sentencing judge has failed to accord proper weight in respect of the mitigating factors and to give a proper balance between the various competing interests involved. In this case the sentencing judge placed great emphasis on the question of children as to their care and custody if the respondent were given a custodial sentence. His Honour said:
“I consider your case a particularly special one because of the special circumstances surrounding your very young children, the fact that no one is immediately able to look after them, and in relation to the two that go to school, they may end up dropping out, if you were to be sent to gaol.
In the end result, I am being merciful, for the welfare of the four young children, and I consider that the injustice caused them would be greater than by not sending you to gaol — and therefore I will give you another chance.”
His Honour had properly considered this aspect as a mitigating factor. However, when considered with the background of other equally strong interests it was over-emphasised and therefore undue weight was placed on it. In doing so, it is in itself indicative of an error in law. True the question of weight is a matter of relative degree. But, with experience, the court can tell if too much weight has been placed upon a mitigating matter in a given case. Up to date the sentencing range for this crime by the National Court has been up to four years. Some statistics of cases were provided to show the sentencing pattern. Some of these sentences were imposed by myself. In most of them the question of care, custody and education of children was always pleaded in mitigation of sentence. Due weight was usually accorded it. But after taking it into account, a custodial sentence had always been imposed. It was never considered completely to exonerate the offender from punishment according to law for his crime as in the present case. As I understand it this was the first case in which the court had ever released an accused on a good behaviour bond for the same issue, which had always been present in all other cases, where the question of children was under consideration. (The effect of this decision would be that anyone who pleads the matter of children must always be given a good behaviour bond. It must be because there is absolutely no difference between the circumstances surrounding this case with any other case where the same set of facts would exist.) As I discuss this appeal further, it will become clearer why the order made in the present case is unusual and unsound.
As to the concern for the education of the children, it must be remembered that before and during the time of the offence, the children were living at the village and were being looked after there by the victim. It was only after the offence had become known that he took them to Port Moresby and sent them to school there. He cannot, all of a sudden, turn around and claim that if he were sent to gaol his children would not get the benefit of going to school. They could always go to school at the village. After all his children had always lived there and it would make no difference if they return to the village and go to school there. Again, there is no special consideration in this as the trial judge thought.
A related point which the trial judge also raised was the question of injustice caused to the children. His Honour considered that such injustice would be greater than if the father was sent to gaol. But the question of injustice, as understood generally, is a matter of mitigation only. It should not override the real consideration of the criminal law — that the respondent-father should be brought to justice and punished for his crime. It was the respondent, and not the children, who was on trial under the criminal law.
The indirect effect on the children if the respondent were given a custodial sentence should be taken into account but it should not be confused with the proper consideration that the man should be given the appropriate punishment he deserves according to law.
But worse still is that the sentencing judge came to such conclusions as to the plight of the children not on any positive findings of facts. His Honour said in his reasons for sentence:
“I am not altogether prepared to accept submission of non-care by your relatives but on the other hand this may well be true in view of the fact that their mother was from the Eastern Highlands.”
This is a very serious matter and if the sentencing judge were to act on it it should have been strictly proved. In fact his Honour found that he was not prepared to accept the submission of non-care by relatives, and concluded that this may well be true. His Honour never found as a positive fact either by direct evidence or by inference that the children would be abandoned at the village and no one would look after them. Yet in his conclusion which resulted in the sentence imposed he regarded that aspect as though it was a matter of fact, that is that there was no one to look after them if he were to be sent to gaol. This was the very thing that had unduly influenced his mind to impose the sentencing order he did. It is a very clear error of law which cannot be cured in any way. It simply means this, that his decision to impose the particular sentence was not based on facts.
In any event, in Papua New Guinea at its traditional stage now, one could almost take judicial notice of the fact that children are never abandoned and that where parents are absent for other reasons the children’s livelihood and security are always guaranteed by the extended family system that we have. This is quite different from western countries where life has become materialistic and individualistic and where society is based on the very immediate family unit. Therefore the livelihood and security of children or even of old people are not guaranteed by any extended family system. However, they have tried to cater for this by setting up welfare institutions for the purposes of taking care of them. Of course I am not saying that traditional societies and life could not be broken down by the advent of western influences. However at this stage we are still very much at our traditional stage, where the communal concern and welfare for everyone is very strong, and should not be undermined in any way by not adhering to such ways of life.
True, each case has to be considered on its own merits but as I have said this case is not special at all. The respondent has a number of brothers and sisters who are married and his mother is still alive. One of his sisters with whom he committed incest is a mature woman. He must have his extended family unit in existence as well. Surely with that background the children could not have been abandoned as it was implied. Of course the respondent has been ostracised or made an outcast by his family and the community. However, one must properly understand the traditional attitudes and concern towards children. In this case whatever their views against the respondent, it would not affect in any marked degree their concern for the children if he were sent to gaol or ran away into another place; and the most important of all is that the mother of the children is still alive and available to look after them in an event as such. This is not a case where one of the parents has died. The mother is still alive. Whatever the differences between himself and his wife, there is no reason at all why she could not take the children and look after them in a situation as this. If the mother has died, yes, the situation would be a little different. Just because the mother was away in another province and that she was being separated from the husband-respondent, should not be regarded as an absolute excuse to the respondent to remain out of gaol. There is no plight as to the children in this case. In any case, children are not to be used by offenders as an absolute excuse to escape the punishment they deserve according to law.
The crime is incest by the respondent with his sister. At the time of this offence the respondent was separated from his wife who comes from the Eastern Highlands. They have four children of the marriage who were in the custody of the respondent. However at the time in question they were being looked after by the respondent’s sister concerned at the village at Bereina. The respondent was a public servant and was living in Port Moresby. At the weekends he would travel home to see his children and at the same time to have his incestuous relationship with his sister, a number of times, which resulted in the birth of a child.
His Honour had also considered the seriousness of this case when he said:
“The offence, it would seem from the depositions of your relatives Pauline Hinehe, and particularly Peter Kape, is regarded as a very serious matter. It is regarded as a most shameful conduct. It has brought shame upon the family and degraded the good name of the family. This was evidenced by the fight that your brother had with you resulting in physical injuries to your hand and face. I bear in mind that as a result of this conduct your sister now has a child. Against the serious view which the legislature and your own people have taken of this matter, I am obliged to consider your personal circumstances and weigh all factors before arriving at what I consider the appropriate punishment.”
However it appears that little weight was attached to it when one considers the sentence imposed. In almost all societies of Papua New Guinea the crime of incest is viewed with great disapproval and abhorrence by the community. This has been reflected by the sentencing range of the National Court of up to four years, and as far as I know a custodial sentence has always been imposed. (I am not saying that a good behaviour bond could never be levied in an appropriate case. But this is not the right type of case for it. This case is not exceptional or special in any way.) The traditional retribution for it has been death or ostracism from society. This man has in fact been ostracised from his own society and has had to leave and live in Port Moresby as an outcast. How then could the trial judge ignore this aspect as indicative of the seriousness of this crime? The policy behind this area of the law must also be properly appreciated and taken cognizance of. Papua New Guinea is in its traditional stage of societal evolution, which is still bound together to a large extent by the moral order. The main thing that differentiates mankind from other animals is that man is a moral creature. Human society therefore is based upon the moral orders which has also guaranteed its continuity throughout the passage of time. In traditional societies as in Papua New Guinea the inclination towards morality is quite strong, much stronger than in western communities. And kinship morality particularly, which is part of the whole moral orders, is very, very strong indeed. The offences against sexual morality therefore, and incest is one of them, are viewed as extremely serious and bad, and must be strictly enforced. It is precisely because of the ultimate value of maintaining the moral orders that the lawmakers throughout the times have seen fit to make the criminal law exist for the enforcement of it. And as has been reflected in common law countries and in Papua New Guinea heavy penalties have always been imposed for this crime. The wisdom of centuries by the law and Christianity should be the most valuable guiding factor in regard to how the people view the crime of incest or other offences against morality. It would be a mistake at this point in time for the court to be taking a lesser view of such a crime by imposing lighter punishment for it. I said a mistake in a sense that if the court does not strengthen the moral order, by not imposing severe penalties for the offences against morality, society would be heading for moral decay. Furthermore the offence is not just against morality but as against humanity as a whole. By this I mean that the observance of the various taboos which the criminal law has come to enforce are because the relationship between the parents and children, and between brothers and sisters, and among other lineal descendants, are sacred to mankind. It has been and should be, regarded with decency and propriety. Christianity and all other major faiths also condemn such breaches as sins against God. So from whatever points of view the matter is looked at, they are all aimed to serve the same purpose — to maintain the moral orders which are the foundation of society.
Another matter that in my view was also overlooked, was the question of prevalence of this particular offence. This offence is no doubt prevalent, and being so, the law is that public deterrence must override all other consideration. It also takes priority over any consideration to treat it as an isolated, individual case and to get the kind of treatment as in the present appeal. In my opinion to overlook such issue is wrong in law. His Honour wrongly treated general deterrence as a matter to be given very little weight in sentencing for incest. The penalty which is imprisonment for life as the maximum provided by the legislature indicates that significant weight ought to attach to this factor. However, it is quite evident in this case that no weight was given to it at all. Further it would be wrong for the court to be taking its own view alone of the gravity of this offence or of any offence. The community’s attitudes must always be taken into account. The case of R. v. H. (1980) 3 A. Crim. R. 53 is relevant here. This was a case of incest by the father with his sixteen-year-old daughter. Following a plea of guilty to incest with his daughter the trial judge deferred passing sentence upon the respondent entering into a good behaviour bond for four years. The Crown appealed against inadequacy of this disposition. In upholding the appeal the Court of Criminal Appeal held that a sentence of penal servitude for three years (with a non-parole period of twelve months) should be substituted in lieu of the disposition of the trial judge. It was also stated in this case that in the case of a serious crime, subjective elements should not be permitted to override the real consideration of the criminal law — that offenders should be brought to justice and punished for their crimes. It was also held that the trial judge had wrongly treated as outweighing community attitudes on these issues, the attitudes towards incest generally. What was done in this case and the statement of principles therein are quite pertinent to the present appeal.
This appeal can also be quite easily allowed under the principle stated by the New South Wales Court of Criminal Appeal in the same case of R. v. H. (1980) 3 A. Crim. R. 53 where the court said at 60:
“It is not the function of this Court to overrule the decision of the sentencing judge unless it can be seen, in a Crown appeal, ... that the matter has been so leniently dealt with as in itself to justify the conclusion that some error must have tainted the decision of the sentencing judge so as to call for the intervention of this Court.”
This principle was followed by the former Full Court prior to Independence and by this Court in The Acting Public Prosecutor v Konis Haha [1981] P.N.G.L.R. 205. It is a sound principle. The present case falls squarely within it. In my view the matter has been so leniently dealt with that it should justify the intervention of the Supreme Court. Leniency is quite obvious in this case which can clearly be seen from the foregoing reasons.
In summary, the appeal can be allowed either on the issue of leniency alone or under the identifiable errors of law which have been established, or under both grounds.
I have read the judgment of Kidu CJ, and I agree with it. I think we are saying the same thing, which has led us separately to come to the same conclusions. In my opinion the exercise of the court’s discretion has been unsound. The trial judge has erred in law in exercising his discretion which should justify the intervention of the Supreme Court. I would allow the appeal, quash the order made by the trial judge and make the same orders as Kidu CJ
MCDERMOTT J: For this Court to interfere, it has to be shown that the sentencing judge was in error in acting on a wrong principle, or in misunderstanding or wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error.
The principles by which an appellate court can act on appeal are well known. It is often timely to be reminded of them. As said in Cranssen v. The King (1936) 55 C.L.R. 509 at 519-520:
“... the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this Court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority.”
This is the citation which was quoted and approved of in Acting Public Prosecutor v. Konis Haha [1981] P.N.G.L.R. 205 at 210-211.
The substantial argument against the sentence was the undue emphasis placed on the care and custody of the accused’s children. This Court has only before it what was before the trial judge who went out of his way to ensure he had enough evidence to gauge the situation correctly.
This Court is in no position to consider other matters and use its own experience of custody and welfare of children to come to a different conclusion.
It has not been demonstrated on the facts before the trial judge that he is in error. To accede to the prosecutor’s submission that a deterrent of a custodial sentence of six months is called for is just tinkering with the sentence. I am reinforced in this view by the considerations of the trial judge that on the facts of the case before him, such a sentence was not called for.
I would dismiss the appeal.
Appeal allowed. Sentence of two years imprisonment substituted.
Lawyer for the appellant: L. L. Gavara-Nanu, Public Prosecutor.
Lawyer for the respondent: N. Kirriwom, Public Solicitor.