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State v Neheya [1989] PGNC 72; [1988-89] PNGLR 175; N736 (24 May 1989)

N736

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

MITIGE NEHEYA

Goroka
Brunton AJ
22 May 1989
24 May 1989

CRIMINAL LAW - Sentence - Incest - Sentencing principles - Guidelines for tariffs - Criminal Code (Ch No 262), s 223.

CRIMINAL LAW - Sentence - Incest - Accused aged 50 years - Victim aged 15 years - Pregnancy resulting - Death of child at two months - Plea of guilty - Sentence of seven years in light labour - Criminal Code (Ch No 262), s 223(1)(a).

The following guidelines may be taken as appropriate to sentencing for the offence of incest contrary to s 223(1)(a) of the Criminal Code (Ch No 262) for which the maximum prescribed penalty is life imprisonment:

(1) Because the offence involves unlawful sexual intercourse, a maximum term of life imprisonment and consent is immaterial, the principles of sentencing for the offence of rape should be applied.

John Aubuku v The State [1987] PNGLR 267, considered.

(2)

(a) On a plea of not guilty where the accused is a mature person and there are no aggravating or mitigating circumstances, a sentence of five years should be taken as the starting point;

(b) The sentence may be increased for aggravating circumstances such as: physical or psychological damage to the victim; resulting pregnancy and infection of the victim with sexually transmitted diseases;

(c) The lower range of sentences should be reserved for young offenders where there is little disparity in ages or for consensual acts involving adults.

Held

On a plea of guilty to a charge of incest contrary to s 223 of the Criminal Code (Ch No 262), where the accused was aged 50, the victim aged 15, and there were four acts of intercourse which resulted in pregnancy of the victim and the death of the child born as a result at two months, a sentence of seven years in light labour should be imposed.

Cases Cited

John Aubuku v The State [1987] PNGLR 267.
R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985.
State, The v Luke Aidou [1985] PNGLR 292.

Sentence

The accused pleaded guilty to a charge of incest contrary to s 223 of the Criminal Code (Ch No 262), and the following judgment was delivered on sentence.

Editor’s Note

An appeal to the Supreme Court has been lodged.

Counsel

D E Ashton-Lewis, for the State.
K Kot, for the accused.
Cur adv vult

24 May 1989

BRUNTON AJ: An indictment was presented to me against Mitige Neheya alleging four counts of incest, offences under the Criminal Code (Ch No 262), s 223(1)(a). He pleaded guilty to all counts and I adjourned the Court to consider sentence.

THE FACTS

The prisoner admitted four separate acts of sexual intercourse with his 15-year-old daughter who was a high-school girl. The victim was the daughter of the prisoner by his second wife through a customary marriage. The law recognises polygamous customary marriages; the daughter of such a marriage is a lineal descendant for the purposes of s 223 of the Criminal Code: The State v Luke Aidou [1985] PNGLR 292. At the time of the offences, the victim was living with her adopted parents. The offences took place at the house of the prisoner. The victim consented to the acts of sexual intercourse because she believed that she would be beaten if she did not obey her father although it was not suggested that the prisoner had actually assaulted or threatened her. After the first act of intercourse the prisoner told the victim that he would be killed if she told anybody and that she would have the job of supporting the family.

Some months after the acts of sexual intercourse, the adopted mother went to Goroka to visit the victim. She saw that the victim was pregnant. First the victim told her adopted mother that she had been raped by rascals but eventually the story came out that she had been made pregnant by her father. The adopted mother then took the victim back to her village and questioned her further. There she found out that the prisoner had taken the victim to a private doctor in Goroka in order to procure an abortion. The doctor had advised that the pregnancy was too far advanced for an abortion. It was at that time that the prisoner told the victim to say that she had been raped by rascals when she was questioned about how she got pregnant.

The adopted parents and some Village Court magistrates then went to see the prisoner at his house in Goroka. When they confronted the prisoner, the prisoner retreated to his house and came out with a bow and arrow. He was overpowered and taken to the police.

The victim subsequently gave birth to a baby who died after living for about two months.

THE PRISONER

The prisoner is about 50 years old. He has two wives and eight children. The victim is the fourth child of his second wife. He has worked for the Department of Health since the 1950s. He is now the Provincial Aid-Post Supervisor in the Sexually Transmitted Disease section of the Department. He earns K140 per fortnight. He has no prior convictions and he is a person of good repute. He has been in gaol for three nights and appears on bail of K150.

THE SENTENCE

The sentences imposed for offences of incest involving father and daughter in 1988 reveal a range between one year two months and five years. The median sentence for an offence of this kind appears to be about three years with part of the sentence suspended. Neither counsel was able to help me with the sentencing principles for this type of offence. D A Thomas’ Principles of Sentencing, 2nd ed (1979) at 118-119, has this to say about sentencing for incest cases:

"Sentences of five years’ imprisonment or longer are likely to be upheld where the father deliberately exploits his position in the family by systematically seducing his daughter over a period of time, usually by a series of acts of increasing indecency until the process is completed. Often in such cases more than one daughter is involved, and occasionally the process may spread outside the family to include friends of the daughter. In the worst cases the offender will involve other males, even his own sons, in the activities. In Forster [unreported] the appellant was convicted of four counts of incest with his 11-year-old daughter. It was alleged that having decided that the child was old enough to be initiated into sexual activities, he had committed incest with her and introduced another man into the house with a view to intercourse with her. His sentence of seven years’ imprisonment was upheld. In Palmer [unreported] the appellant admitted three offences of attempted incest against his daughter over a period of two years, beginning when she was fourteen. On the first occasion he had deliberately made her drunk before attempting the offence. Observing that the maximum sentence for attempted incest was two years’ imprisonment (by contrast with seven years for the completed offence) and that pleas to attempt should not be accepted where there was evidence of sufficient penetration to establish the full offence, the Court upheld consecutive sentences totalling four and a half years."

The commentary in Thomas’ book has to be put into context. The first matter is that under s 223 of the Criminal Code the sentence for a father who has carnal knowledge of his daughter or other lineal descendant is life imprisonment. The cases cited in the 2nd edition of Thomas are now some 17 years old. These cases, from the early 1970s, with sentences in excess of five years, are for offences where there were aggravating circumstances; they were some of the "worst cases", where the maximum sentence for the offence under the English legislation with girls over thirteen years of age was seven years, with girls under thirteen years of age it was life imprisonment: see Sexual Offences Act, 1956 (UK), ss 10, 37(1), 37(3), Sch 2(14). As I have pointed out, in Papua New Guinea, the maximum penalty is life imprisonment, irrespective of the victim’s age.

Under the Papua New Guinea Criminal Code there are three sexual offences which attract life imprisonment: the incest of a man with his daughter under s 223(1)(a), the defilement of a girl under 12 under s 213(1), and rape under s 347.

The sentences of life imprisonment laid down by the legislation indicate the seriousness with which Parliament views these offences. While the Supreme Court in Papua New Guinea has not set out the principles for sentencing in incest cases, or defilement cases, it has recently addressed the principles of sentencing with the offence of rape, in Aubuku v The State, which relied on the English Court of Appeal case, R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985. In that case the English Court of Appeal said (at 351-352):

"For rape committed by an adult without any aggravating or mitigating features a figure of 5 years should be taken as the starting point in a contested case."

The English Court of Appeal then went on to analyse what were the aggravating or mitigating circumstances that prevailed within the offence of rape.

In my view the same principles can be applied to the offence of incest, because that offence is a sexual offence, and because it is regarded as a very serious offence by Parliament. The lower portion of the permissible, range should be reserved for young offenders where there is little disparity in the ages; it may also be applicable to those cases of consensual acts of sexual intercourse involving adults where there are no aggravating factors. An example of this would be where incest occurs within a brother-and-sister relationship. It may also be appropriate for the mother-son relationship or the father-daughter relationship where the parties are adults and willing partners.

It should be noted that in Aubuku’s case the Supreme Court adopted the position that the starting place with adult offences, where they are contested, is five years. If we were to apply that starting point in rape by analogy to the incest cases, then it can be seen that most of the sentences for incest in 1988 were below the tariff. These sentencing patterns perhaps may be accounted for in terms of sentencing principles more appropriate to the English legislation. On the other hand, it is possible that the principles set down in Billam’s case reflect the growing concern in metropolitan countries, and also one might add, in Papua New Guinea, arising from an increased consciousness about the place of sexual offences in society. In the metropolitan countries and in informed circles in Papua New Guinea, there is concern that the position of women in society and its general subservient or secondary nature can in part be attributed to the violence that is visited upon women. This violence is not only seen in the offence of rape but may also be traced through the defilement of very young girls and the abuse of children by their fathers, brothers and uncles. Within the past ten to fifteen years a lot more work has been done within the social sciences on the nature of incest and its effect within the family. A lot more is known about the effect of incest as an offence upon the psychology of young girls. It is possible that the general movement in consciousness about incest has not so far infiltrated the judgments of the Court in this country.

An incestuous act with a child is a circumstance of aggravation of the most severe kind. It is a gross betrayal of the most sacred relationship of father and daughter. When young girls are the victims, it is difficult to imagine that the girls will not be scarred emotionally, perhaps for life. In this case the victim who once loved her father, now says she hates him. That appears to me to be not only a natural consequence of the feeling of guilt and self-mortification visited upon a daughter in these cases, but an ultimate tragedy for a high-school girl. A further circumstance of aggravation would be the infection of the victim with a sexually transmitted disease. Fortunately that did not happen in this case, and it is not a factor here.

The pregnancy of the victim is another circumstance of aggravation. Medical opinion is somewhat divided upon the likelihood of a child from an incestuous union being born deformed or handicapped. But the damage to the psychological well-being of the girl victim is well established. Even if a child is born healthy, the social stigma of its origin, or even the subjective knowledge of its origin, is likely to be a heavy burden for it to bear in life.

In this case a baby was born and it died after living for about two months. This is a terrible tragedy for the victim, the baby and the family. The prisoner is getting to be an old man, he is 50 years old or perhaps older. Judges do not like sending old men to gaol for long periods because of the inhumanity of the likelihood of an old person dying in gaol. Here I weigh the social value of that likelihood against the social need to stamp this crime with society’s condemnation and deter others. In my view the rights of children are superior to the rights of those people who are older and should know better. The prime duty is to protect the young. Previously incest has been a hidden crime, but with more public awareness and increased public concern, incest, particularly involving the father-daughter relationship, is now known to be far more widespread and devastating than was thought in the past. These offences on young girls are seen as part of a larger total oppressiveness that pervades the lives of women. The disadvantages of women in Papua New Guinea society are plain to see. They do not occupy positions of power within the modern sector and they bear much of the labour that is required to produce food in the traditional sector. The courts should deal with cases of incest, as with rape, clearly and decisively, so that there can be no doubt as to sentencing policy. I take into account that the accused has pleaded guilty to this offence and has saved the victim the trauma of a trial. I sentence him to seven years in gaol with light labour.

Sentence of seven years with light labour

_________________

Lawyer for the prisoner: E Kariko, Public Solicitor.
Lawyer for the State: K Bona, Public Prosecutor.