N2596

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT KOKOPO]

CR 1312 OF 2000

THE STATE

V.

EMMANUEL LAILAI
(‘Prisoner’)

Kokopo: Davani .J
2004: 21, 22 July

Criminal law – practice and procedure – incest by man – trial on one count – victim aged 12 – 15 years.

Criminal law – practice and procedure – sentence – other instances of sexual intercourse – deemed to be aggravating factors – s. 223 of Criminal Code Act.

Cases cited:
Dori Inara -v- The State SC688;
State -v- Mitige Neheya [1988-89] PNGLR 174;
State -v- Esau Liligau CR 1274/00;
State v Patrick Pairie N2519, 4th March 2004;

Counsel:
S. Luben for the State
L. Siminji for the Prisoner

DECISION
(Trial – on Sentence)

22nd July 2004

DAVANI .J:	On 21st July 2004, after a trial, I found the prisoner guilty of one count of incest by man, charge laid pursuant to s. 223 (1) (a) of the Criminal Code Act (‘CCA’). This section reads:

"223.	Incest by man

(1)	A person who carnally knows a woman or girl who is, to his knowledge –

(a)	his daughter…; or
...

is guilty of a crime.

Penalty: Subject to section 19, imprisonment for life".

The prisoner was originally charged with three (3) counts of incest. Two (2) counts were dismissed for lack of evidence. He was found guilty of one (1) count, of having committed incest upon his natural daughter on an unknown date between the month of December 2001 and January 2002 at Vunaulaiting village in the East New Britain Province.

The evidence upon which he was convicted is found in the Record of Interview conducted by the Police on 28th March 2002 where he was interviewed and where he admitted to having committed the offence. I have set out extracts of the Record of Interview in my decision on verdict however will set these out again to illustrate the circumstances under which the offence was committed. The questions asked and answers given are;

"Q. 22:	Have you got anything to say against your charges?
Ans:	We were drunk one Saturday and when I got back to our house, I was trying to go into our room. The room belong to me and my wife where (the victim named) was sleeping on our bed. I then thought she was my wife and I had sex with her.
"Q. 23:	Is it true that you had sex with (the victim named) who is your daughter?
Ans:	Yes.
Q. 24:	Can you recall the exact time you had sex with (the victim named)?
Ans:	I can recall that, it was last year but I cannot recall the month.
…
Q. 31:	Is it true that (the victim named) is your blood daughter?
Ans:	Yes, it is true."

I should state at the outset that the State was very ill-prepared to conduct this trial. Although the trial was rescheduled on 3 occasions, the State still could not muster its witnesses together. When the trial commenced on 20th July 2002, only the corroborator was available to give evidence. I raise this because the State could have proven the two other counts if its witnesses were available.

Lawyers must understand that they have a duty, not only to their employers but to their clients, the State and the Court, to properly prepare their case. For Prosecution, they have a duty to ensure that charges are proven beyond reasonable doubt. For that to occur, they must be diligent in their preparations before trial and to have the necessary witnesses at the trial. In this case, although the necessary materials were on file to prove the other counts of incest, they could not be introduced into evidence because the victim, her mother and the investigating officer were not at the trial.

But with the properly admitted evidence, it showed the prisoner’s lack of respect and total disregard of his role as the victim’s natural father. What he did is a complete betrayal of the victim, her mother and 2 other younger siblings. (see State -v- Mitige Neheva [1988-89] PNGLR 174). In this case, I find it was lust that drove him to have sex with his daughter.

Sentence

I should also state that the most aggravating factor about this case is that the prisoner knew he had had sex with his daughter, that he did tell the Police but that he was prepared to still go to trial about it, obviously a waste of time and money for all those involved, more particularly the State.

The victim was aged 15 and the prisoner aged 37 when the offence was perpetrated. His lawyer submitted that although a grade 6 leaver, he has made good use of his vocational trade as a mechanic and has held several jobs, now presently employed as one. 

The State has asked the Court to consider the matter of State -v- Esau Liligau CR 1274/00 that I presided over on this circuit. It was a guilty plea on a charge of incest by man under s. 223 of the CCA, where I sentenced the prisoner to 10 years in hard labour. The evidence in the court file was that he had had sexual intercourse with his natural daughter on more than one occasion. However he was charged with only one count. The other evidence of sexual intercourse were treated as aggravating factors. It is a matter for the State to charge him on the other counts. As to the other aggravating factors, he treated his daughter more like his wife than a daughter in that he would assault her if he was not happy with her and always insisted that she remain within his sights. The Defence asked the Court for a sentence less than 10 years.

I will not accept those defence counsels submissions because counsel Mr. Siminji was aware of the prevailing circumstances yet was prepared to conduct a trial meaning the Court had to sit and hear evidence then sift through and weigh the evidence.

I have referred to the case of State v Patrick Pairie N2519 decided by Lenalia .J on 4th March 2004. This was a guilty plea where the accused pleaded guilty to (x2) counts of incest upon his natural daughter whilst holding a knife to her neck. He had also had sex with her on other occasions but was only charged for 2 counts. He was sentenced to 9 years for one count and 8 years for the other count to be served cumulatively. Of the total 17 years, 3 years was suspended. The basis of the suspension is not stated in the written judgment.

In this case, the matter proceeded to trial on one count of incest. He was not charged with other instances of incest although there was evidence to that effect. I have treated those as aggravating factors. Even then, the one count that was proven before me, after a trial, I find is most aggravating. No father should ever sexually molest or have sex with his own natural daughter or child for that matter. Clearly he is sick and should not be allowed anywhere near his other children or other young girls for that matter.

Considering effluxion of time since Mitige Neheya (supra) and reduction of sentence by the Supreme Court of 10 to 12 years in the case Dori Inara -v- The State SC688, this Court will sentence the prisoner to 12 years in hard labour.

Bail of K250.00 will be refunded forthwith.
_____________________________________________________________
Lawyer for the State		:	Public Prosecutor
Lawyer for the Prisoner	:	Public Solicitor