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State v Waiya [2005] PGNC 176; CR 1834 of 2005 (21 December 2005)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1834 of 2005

THE STATE

-V-

PAUL WAIYA

Vanimo: Kandakasi, J.
2005: 13th and 21st December

DECISION ON SENTENCE

CRIMINAL LAW – PRACTICE & PROCEDURE – Parliament reducing penalty despite prevalence of offence – Effect of – Court legally bound to proceed on assumption that Parliament makes no mistake – Court has discretion to impose maximum prescribed penalty in appropriate cases - Criminal Code ss. 19 and 223.

CRIMINAL LAW – PRACTICE & PROCEDURE –Indictments and sentences – Indictment presented for less serious offence in terms of penalty when facts discloses more serious offence – Unless exceptional circumstances exist no need to further reduce sentence under less serious offence.

CRIMINAL LAW – Sentence – Particular offence - Incest by uncle against biological niece - Offence committed in circumstances amounting to rape – Use of bush knife to threaten and secure sexual penetration - Sentences for rape in similar circumstances considered - Guilty plea by first time offender –No physical injuries to victim – Factors in aggravation outweighing factors in mitigation – Maximum sentence imposed – Criminal Code ss. 223 and 347.

Cases cited:
The State v. Sabrina Yakal [1988-89] PNGLR 129.
The State v. James Gurave Guba (19/12/00) N2020.
The State v. Richard Dusal Bix and Siprian Sipi Karo (06/06/03) N2415.
The State v. Jack Oroko Tepol (08/10/99) N194.
The State v. Sam Nimino [1977] PNGLR 226.
The State v. Douglas Natilis).
The State v Francis Angosiwen (No 2) (21/06/04) N2670.
The State v. Amos Audada (13/05/03) N2454.
The State v. Eddie Sam (03/02/04) N2521.
The State v. James Donald Keimou (12/10/01) N2295,
Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71.
The State v. Peter Yawoma (19/01/01) N2032.
The State v. Attiock Ishmel (12/10/01) N2294.
The State v. Joseph Ping (17/12/01) N2169.
The State v Lohori Mau (22/07/03) N2430.
Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299.

Counsels:
Mr. J. Wala, for the State.
Mr. G. Korei, for the Prisoner.

21 December, 2005

1. KANDAKASI, J: You pleaded guilty to a charge of incest contrary to section 223 of the Criminal Code as amended. After having administered your allocutus and receiving submissions of counsels, I reserved a decision on your sentence. Here is now the decision of the Court.

Relevant Facts

2. The relevant facts emerged from the District Court depositions, admitted into evidence with your consent. The authorities support a use of the evidence in the depositions to assist the Court to arrive at a decision on sentence that best reflects the circumstances surrounding the commission of an offence. The case of The State v. Sabrina Yakal[1] is one of the earliest cases supporting this approach. I followed that authority in The State v. James Gurave Guba[2] and many others such as The State v. Richard Dusal Bix and Siprian Sipi Karo.[3] My brother, Justice Kirriwom did the same in The State v. Jack Oroko Tepol.[4] The Supreme Court in The State v. Sam Nimino,[5] endorsed this practice.

3. On 1 October 2004, around 5:00pm the victim (named) was at her house with her two little sisters at Finomoi Village here in the Sandaun Province. No other person was around at the time. You approached them with a bush knife in your hands. You threatened the victim with the bush knife and forced her to go and break firewood for you from the garden. Out of fear for her safety, the victim complied and went to the garden to do as you directed. As she was breaking firewood for you, you went to her again with the bush knife in your hand and told her to leave the firewood and go to him. Again, out of fear for her life, she complied and you grabbed her by both of her hands. The victim started to call for help and you told her to shut her mouth or else you would cut her with the bush knife. So she did and then you pulled her down to the ground, opened her legs whilst removing your short and laid on top of her and proceed to have sexual intercourse with her until you ejaculated sperm into her vagina. You then left the scene and the victim went home.

4. Later on when the victim was in her house, you went and pulled her out into the nearby bushes and had sexual intercourse with her twice. In the morning, you took the victim back closer to the village and asked her to hide in the bushes while you went to the village. When you left, the victim ran away from you and she went to her uncle and reported what you did to her.

5. The victim is the natural daughter of your biological brother Anse. She is therefore your natural niece. Your brother and his wife the mother of the victim are both deceased. Your other brother, Piepei has taken care of the victim since the death of her parents. You are around thirty years old and not married.

6. You claim that both in your record of interview and in allocutus before me that you had consensual sexual intercourse. The offence with which you have been charged does have consent as an element. Therefore, it does not really matter whether the victim consented or not. In any event, I do not believe that claim because the other evidence in the depositions do not support you. Besides, the victim was a very young girl. She was about 15 years old whilst you were twice or more older than her. She was your biological niece. You do not explain in any way how she conceived the idea of having sex with you, her uncle, or as she describes you, her father. You do not even disclose when she did come up with the idea of consensual sex with you. Further, you as the older of the two of you were in a position to point out that you could not have sexual intercourse with her because of the close blood relationship. In addition, you do not say anything about stopping or avoid her advances. Furthermore, you even do not provide any satisfactory explanation as to why or what caused her to report you to her other uncle.

Offence and Sentencing Trend

7. Section 223 of the Criminal Code as amended, creates and prescribes the penalty for the offence you committed in these terms:

"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 the purposes of this section, a close blood relative means a parent, son, daughter, sibling (including a 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."

8. Previously, the maximum prescribed penalty was life imprisonment. The Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, introduced the changes. Hence, the amendments substantially reduced the penalty down to a very low 7 years maximum. I fully discussed the effect of this and the sentencing tariffs in the matter of The State v. Douglas Natilis.[6] I summarized those discussions in the case of The State v Francis Angosiwen (No 2).[7] I need not repeat them here save only to summarize as I did in the Francis Angosiwen case.

9. I expressed the view that Parliament appears to have made an obvious mistake or was led to make a mistake in reducing the penalty provision for a number of reasons. First, the offence of incest is a very serious offence because it destroys the sacred trust that exists between close relatives. Secondly, it is an offence that is prevalent and on the increase. Thirdly, given the seriousness and its prevalence, the courts have imposed sentences beyond 7 years. Such sentences range from 10 years as in The State v. Amos Audada[8] and 17 years cumulative for 9 counts of incest as in The State v. Eddie Sam.[9] They even reached life imprisonment as in The State v. James Donald Keimou,[10] for repeated acts of incest by a natural father against two daughters with three children being born to the daughters. Finally, this change in the penalty does not accord well with the reasons for the recent amendments to the Criminal Code particularly those provisions dealing with sexual offences against children, which substantially increased sentences and made it easy to get a conviction in these kinds of offences.

10. I noted then and I do so here again that, there is no power in the Court to correct this apparent mistake. That power belongs to Parliament. As such, all that the Court can do is to recommend to Parliament to reconsider the penalty provision with a view to restoring the previous penalty of life imprisonment or prescribe a sentence closer to it.

11. Meanwhile, I held that, the Court must apply the current provisions as they are, proceeding on the basis that Parliament did not make any mistake. Accordingly, I held further that, the sentencing guidelines as set by Mitige Neheye v The State; Martin Gawi v The State,[11] continue to apply but with some variation to reflect the reduction in the penalty. These guidelines suggest that, if the circumstances in which the offence was committed constitute rape, then the sentence must proceed as in a rape case. We have that situation here so I must approach sentence on that basis.

12. Going by that guideline, I noted that, sentences for rape on guilty pleas attract sentences between 13 years and 17 years. I then held that, because of the penalty provision as they are in incest cases, the Court cannot impose a sentence beyond the maximum prescribed of 7 years. In arriving at that view, I noted that it is now almost settled law that where an indictment for a lesser offence is presented when the facts support an indictment for a serious offence, the Court should not further reduce the prescribed maximum sentence as in this case, 7 years, except where "very good mitigating factors exists."

13. I first held in those terms in The State v. Peter Yawoma,[12] by saying:

"... where the facts of a case disclose a more serious offence such as rape but for a plea bargain as in the present case, the maximum prescribed term of 5 years should be imposed."

14. In my subsequent judgment in The State v. Attiock Ishmel,[13] I elaborate on the reason for that view as follows:

"No doubt by reason of a plea-bargaining resulting in the dropping of a more serious offence to a less serious one drastically reduces the kind of penalty an offender should receive. Given that, in my view, there exists no reason or basis for a further reduction of any sentence. The society quite rightly expects the courts to impose on their behalf a sentence that best reflects its disapproval of the kind of conduct the offender has engaged him or herself in. That expectation should always be borne in mind by a sentencing authority when considering an appropriate sentence to impose in any case. It would be a disservice to the society’s legitimate expectation if sentences prescribed under a lesser offence were further reduced."

15. I followed this approach in The State v. Joseph Pingu.[14] Other judges have followed that reasoning and imposed the maximum prescribed sentence under lesser offence when the facts in fact disclose a more serious offence. An example of that being done is the judgment of Davani J., in The State v Lohori Mau.[15]

Sentence in Your Case

16. Before arriving at a decision on your sentence, I take into account all that you put to me in your allocatus. You said you paid customary compensation of K200.00 out of a total determination for you to pay K500.00. Further, you said you could not complete the payment of the compensation because police arrested you. You also say that this matter was resolved at the village level and it ought not to be before this Court. The law is however very clear, payment of customary compensation does not completely excuse an offender like you from your criminal responsibility. Payment of customary compensation operates only as a mitigating factor.[16]

17. The next thing you said in your address on sentence was that, you had consensual sexual intercourse with the victim. I have already dismissed that claim in the consideration of the facts. I need not repeat them here.

18. The other things you said were that this is your first ever offence and that you were sorry for what you have done. You finished with a plea for mercy. Your lawyer asked the Court to take these factors into account in your mitigation and I do.

19. At the same time, I note against you first, that you used a bush knife to secure the sexual intercourse with the victim. This, I am sure, could have been a very traumatic experience for her as is usually the case in rape or other offences of violence. Secondly, you committed the offence against a person much younger than you. The victim looked upon you as her father. She therefore had trust and confidence in you as such. You destroyed that trust and confidence. There is no evidence as to whether she has a better or lesser chance of marrying someone with the knowledge that her own uncle has sexually penetrated her. The effects of such offence on a person remains for a life time. As such, the victim will leave with the bad memories of what you did to her.

20. Thirdly, I note that the offence of both incest and rape a prevalent offences. Therefore strong deterrent sentence have been called for by the people. Parliament responded with amendments to the relevant provisions of the Code as already noted. The courts are responding too with increasing sentences in these kinds of offences. The reduction in penalty for incest cases is possibly as already noted, is a mistake and that will hopefully be corrected soon.

21. Weighing the factors for and against you, I find you have failed to present any other good mitigating factor to warrant a further reduction of the sentence prescribe under s. 223 of the Code. This is particularly so in the light of the factors against you including the kind of sentences presently being imposed in rape cases. In these circumstances, I consider a sentence up to the maximum prescribed under s. 223 is appropriate and impose it against you.

22. Of the 7 years sentence, I order a deduction of the time you have already spent in custody. I also order that, you serve the balance of your sentence in hard labour at the Vanimo Correction Services. A warrant of commitment will issue in those terms forthwith.

______________________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

^[1] [1988-89] PNGLR 129.
^[2] (19/12/00) N2020.
^[3] (06/06/03) N2415
^[4] (08/10/99) N1941.
^[5] [1977] PNGLR 226.
^[6] Reference not readily with me but will supply later.
^[7] (21/06/04) N2670.
^[8] (13/05/03) N2454.
^[9] (03/02/04) N2521.
^[10] (12/10/01) N2295.
^[11] [1994] PNGLR 71.
^[12] (19/01/01) N2032.
^[13] (12/10/01) N2294.
^[14] (17/12/01) N2169.
^[15] (22/07/03) N2430.
^[16] Acting Public Prosecutor v. Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299