N3382

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 663 of 2006

THE STATE

-V-

MICHAEL SIWIRI

Daru: 	Kandakasi, J.
2006: 20th and 22nd November

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Particular offence – Incest – Sexual penetration by an adult male of a niece – Age disparity between victim and offender – Breach of trust – Guilty plea – First time offender - Sentence of 6 years imposed – Section 223 Criminal Code 

Papua New Guinea Cases cited:
Koniel Alar and Hosea Biu v. The State [1979] PNGLR 300.
Imiyo Wamela v The State [1982] PNGLR 269.
Roger Jumbo and Aidan Awatan v The State (26/03/97) SC516.
The State v. Tikiria Amos (19/09/05) N2614.
Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71.
The State v. Joseph Ping (17/12/01) N2169.
The State v. Lohori Mau (22/07/03) N2430.
The State v. Peter Yawoma (19/01/01) N2032.
The State v. Attiock Ishmel (16/10/01) N2294.
Sakarowa Koe v. The State (01/04/04) SC739.
The State v. Sevi Kwetok CR N0. 1474 of 2005 (decision delivered in Tabubil on 9th 
The State v. Douglas Natilis (Unreported and Unnumbered judgments, 2004)
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. Raphael Kimba Aki (No.2) (28/03/01) N2082.
The State v. Lucas Yovura (29/04/03) N2366.
The State v. Enni Mathew & 8 Ors (No 2) (29/10/03) N2563.

Overseas Cases Cited:
Law v. Deed [1970] SASR 374.

Counsel:
D. Mark, for the State. 
P. Kapi, for the Prisoner.

22 November, 2006

1.	KANDAKASI J: You pleaded guilty to a charge of sexual penetration contrary to s. 223 of the Criminal Code. After having administered your allocutus and receiving both yours and that of the State’s submissions, I reserved a decision. This is now the decision of the Court.

Relevant Facts

2.	The relevant facts as put to you in your arraignment and as they appear from the District Court depositions are these. On 14th August, 2005, at about 11 am here in Daru, Western Province, you were at the main oval/sports field. You saw LW, your victim and your blood niece, aged 20 years old at the time and her aunty walking home from their church service. You met and spoke with L about her teacher wanting to meet her. You instructed L to meet you at the Water Board area near the Daru Airport and you will take her to her teacher. She trusted you and thought you were telling the truth. So she went home, got changed from her church clothes and followed your instructions to get to the Water Board area. She came along with her sister, SL.

3.	The girls met you at the Water Board area near Daru Airport. You signalled them and they came to where you were. You told the two girls that LW’s teacher was waiting somewhere away in the bushes and asked them to follow you and they did. You took them some distance away from the main road and into the bushes. L looked for the teacher but she did not find him there. You asked SL to remove herself and she did. She moved away for about 15 metres. As soon as SL was gone, you told L that if she wanted to get married to the teacher then she must listen to you and do whatever you told her to do. You told her that she must have sexual intercourse with you through which, you will collect your sperm and her vaginal fluid, mix them with some oil you already had with you in a bottle and showed her the bottle of oil. You told her to remove her clothes and she did and you proceeded to have sexual intercourse with LW. She felt pain and tried to push you away but she was unsuccessful. After satisfying your sexual desires, you stood and collected the sexual fluids that had been released by you and her by the use of some leaves. You told her that, you will mix them with some oil in the house. The victim then got dressed and the two of you went to where SL was and the three of you left the scene with you following the girls. Before they left, you told them not to tell anybody about what you did to L and they went home.

4.	On Monday 5th September, 2005, about 6.30 pm, you went to L and asked her to have sexual intercourse with you again but she did not give in. You continued to go back to her and ask her but she did not give into your requests. Meanwhile, SL saw what was happening and told her parents about what you did and were trying to do with LW. SL’s parents went to the police and reported you and you were arrested and charged.

5.	The facts disclose a case of rape because you secured the sexual intercourse with your niece through trickery. The fact of your trickery and securing the sexual intercourse with your niece through trickery were not put to you during your arraignment and are therefore not part of the case against you. If by that reason, this facts were left out, it would render the whole story incomplete and leave the question how did you manage to secure your niece’s consent for the purposes of your sexual intercourse with her totally unanswered. So I note that part of the evidence only to appreciate the possible answer to the question just posed. Other than that, the law is clear.

6.	The State is required to put to an accused during his arraignment any aggravating factor the State wishes to raise against the accused. Where it fails to do so, any such factor cannot be taken into account against the offender for the purposes of determining an appropriate sentence. For in guilty plea cases, an accused person pleads guilty to the essential elements of the offence he is charged with. The Supreme Court in Koniel Alar and Hosea Biu v. The State, affirmed this and provided some guideline as to acceptance of facts in guilty plea cases particularly when there is a conflict in the version of facts for and against an accused. The Supreme Court cited with approval amongst others the following passage per Bray CJ in Law v. Deed:

"The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution; nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the defendant alone. … [I]f a defendant disputes circumstances of aggravation alleged in sworn evidence from the prosecution, he must do so by sworn evidence from himself or someone else: if on the other hand the aggravating matter is not sworn to and is only alleged on the one hand, and denied on the other, in an unsworn form, then ‘it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused’…
…
The court can reject the explanation if it passes the bounds of reasonable possibility, but I do not think it ought to take this course without giving that defendant an opportunity to support his story by his oath and that of any other witnesses he desires to call. Some stories which might appear incredible when related in oratio obliqua by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination."

7.	Subsequent decisions of the Supreme Court such as the one in Imiyo Wamela v The State and Roger Jumbo and Aidan Awatan v. The State, endorsed and applied the above passage. 

8.	In your case, the State decided not to present a charge against you for rape, where you secured the victim’s consent through trickery would have been a relevant and necessary fact and element. Despite the discloser of a possible case of rape even in parts of your record of interview with the police, the State decided to charge you with the less serious offence of incest. I say the charge is less serious because the penalty is low. The law on what I must do in the circumstances is clear. Where the facts disclose a possible case of rape as is the case here, I must proceed to sentence you bearing that in mind and the fact that, you have been charged with a less serious offence. By virtue of the reduced charge, you have already benefited by avoiding the need for you to be charged and dealt with for rape, which carries a maximum penalty of life imprisonment. I must therefore be careful not to unnecessarily further reduce the sentence you should receive. For as I said in The State v. Attiock Ishmel:

"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."

9.	The Supreme Court endorsed these views in its decision in Sakarowa Koe v. The State and added that, where there are very good mitigating factors, the Court should be free to further reduce the sentence only as an exception rather than the norm. 

Address on Sentence and Submissions

10.	Following the Court’s acceptance of your guilty plea and your conviction, I invited you to address the Court on your sentence and you did. You said sorry to the victim and her relatives and the Court for what you have done. You then indicated that you are prepared to pay compensation. Thereafter, you went on to talk about your personal and family backgrounds and needs. You spoke of being married with two children, who you support through fishing as you are not in any formal employment. You finally said the only source of support for your wife and children is you, as no one else supports you and your family. 

11.	Your lawyer added that, you are aged 32 and are married with two children. You come from Iasa Village, here in the Western Province and you live a subsistence style dwelling. Your parents are both deceased. You are the first born in a family of 3 brothers and 2 sisters. Education wise, you are educated up to grade 10, with no formal employment. Finally, your lawyer informed the Court that, you have been in custody for 6 weeks before being allowed out on bail.

12.	Your lawyer then proceeded to make submissions on your behalf. In his submissions, your lawyer urged the Court to take into account your guilty plea and cooperation with the police since your arrest up to pleading guilty before this Court on the charge presented against you. Your lawyer also urged the Court to take into account the fact that you are a first time offender and as such, you have no prior conviction. Furthermore, your lawyer urged the Court to note that, you did not commit the offence with the use of force or threat of force and that you caused no serious physical injury to the victim. 

13.	In furtherance of his submissions on your behalf, your lawyer drew the Court’s attention to the case of The State v. Sevi Kwetok. In that case, I imposed a sentence of 5 years for incest by a cousin brother against his cousin sister. Bearing that case in mind, your lawyer asked for a sentence short of the prescribed maximum sentence of 7 years.

14.	The State through its counsel argues for a sentence beyond 5 years, given the parity in your victim and your own age and that you committed the offence in breach of a trust reposed in you, which was closer than as between two cousins. 

Offence and Sentencing Trend

15.	Section 223 of the Criminal Code as amended creates and prescribes the penalty for the offence of incest. Presently the penalty is 7 years maximum, which is a reduction from an original prescription of life imprisonment. I fully discussed the effect of this and the sentencing tariffs in The State v. Douglas Natilis and summed up that discussion in the case of The State v. Francis Angosiwen (No 2) and recently repeated them this month in the Sevi Kwetok case in Tabubil on 9th November 2006.

16.	There, I said Parliament has apparently 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 a sacred trust 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 and 17 years cumulative for 9 counts of incest as in The State v. Eddie Sam. They even reached life imprisonment as in The State v. James Donald Keimou, for repeated acts of incest by a natural father against two daughters with a total of 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 increased sentences and made it easy to get a conviction in these kinds of offences.

17.	My brother Sevua J., in The State v. Tikiria Amos, expressed similar views. There, His Honour said:

"Whilst I do not question the function and power of Parliament, I question the wisdom of every person involved in the amendment. Incest is a very serious crime. It drives a wedge between families and creates great disharmony within a family unit. It breaks up marriages and sends children and mothers away from the matrimonial home, perhaps for some, into poverty. Yet the people behind such legislative changes had seen fit to disregard the interest and welfare of young daughters and their sufferings. It simply means that Parliament thinks female children or daughters are no longer important so that if they are abused or molested by their fathers or brothers, the penalty is a mere maximum of 7 years.

I consider this to be quite ridiculous and stupid because in my view, there is no longer a protection over young daughters, who in many reported and unreported cases, have been sexually abused and molested by their own fathers. Incest, committed without consent or by force amounts to rape therefore the sentence for rape is valid. Given that well preserved principle of law, it is quite a farce, to say the least, for Parliament to downgrade this crime and reduce the maximum penalty to a mere 7 years."

18.	Both in the Douglas Natilis and the Francis Angosiwen cases, I said Parliament made a grave mistake and noted 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. 

19.	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, continue to apply but with some variation to reflect the reduction in the penalty. These guidelines suggest that, if the circumstance in which the offence was committed constitutes rape, then the sentence must proceed as in a rape case.

20.	Going by those guidelines, I noted that, sentences for simple cases of rape on guilty plea 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."

21.	Then in view of the sentences imposed for rape cases and noting that no other very good mitigation factors existed that warranted a further reduction in the sentence, I imposed in both the Douglas Natilis and the Francis Angosiwen cases the maximum prescribed sentence of 7 years. In so doing, I noted that the sentence accommodated and reflected the seriousness of the offence, the prisoner’s guilty plea and that he was a first time offender.

22.	The Douglas Natilis and the Francis Angosiwen cases were both of incest by a father against their respective daughters. The only main difference between the two cases was that, there was a guilty plea in the first case while it was a trial in the latter. Despite that, I imposed the maximum prescribed sentence of 7 years because of the seriousness of the offence and that the facts disclosed a case of rape. I noted that, if it were not for the reduction in sentence by Parliament, the prisoners could have been given sentences higher than 7 years. My brother Sevua J., did likewise in the Tikiria Amos case. 

23.	In the Sevi Kwetok case, I imposed a sentence of 5 years. There, the prisoner who was a first time young offender pleaded guilty to a charge of incest against his own cousin sister. The victim conceived a child out of the illegal sexual relationship. Although the prisoner said sorry he did not pay any compensation or take any meaningful step like that show that his remorse was genuine.
 
Sentence in Your Case

24.	Bearing the above discussion in mind, I now turn to a consideration of an appropriate sentence in your case. For that purpose, I note and take into account both your personal and family backgrounds as you and your lawyer put to the Court and as I noted earlier. The law is clear, that an offender should have careful regard to his or her personal and family backgrounds and needs before committing an offence. This is because there is always a consequence for every offence a person commits. This may include incarceration either for a time or for life depending on the offence committed. That may adversely affect an offender’s personal and family need. Hence, it is a little too late for an offender to talk about and plead his personal and family needs.

25.	Then in your mitigation, I note that, you pleaded guilty to the charge against you. I also note that you did not use any force or threat of force and that you did not cause the victim any serious physical injury. Further, I noted that your expression of remorse for what you have done without taking any tangible steps say for example, offering a direct apology to the victim and her parents or paying them compensation. As I have noted in a number of cases already, a mere expression of remorse is not good enough unless, it is accompanied by something tangible, such as compensation. I note that you have indicated a willingness to pay compensation. There is no evidence before me that you have the means to pay any compensation. Also you have not provided this Court with any explanation as to why you have not yet paid compensation since the time of your commission of the offence to this day, which is more than a year ago. Accordingly, I am of the view that your expression of remorse is meaningless. 

26.	Against the above mitigating factors, I note firstly, that you committed an offence that is prevalent, as highlighted by the various cases I have referred to earlier. 

27.	Secondly, I note that you are much older compared to the victim. Of the two of you, you were in a better position to appreciate that, what you set out to do was wrong. Indeed, you knew it was wrong to have sexual intercourse with your own niece. Yet you proceeded to execute and achieve your selfish sexual desire. 

28.	Thirdly, you sexually violated the victim and abused the victim who was much younger than you. You therefore seriously violated the victim’s person. The victim will be left with the negative impacts of your sexual violation of her. This may remain with her for the rest of her life, given that there are no facilities in the country to help the victim to overcome her psychological injuries. In accordance with the law I have earlier discussed, I must remind myself that, by reason of the State presenting the lesser charge of incest against you, the penalty you should have received has been considerably reduced already from a possible life imprisonment for a possible case of rape to a short 7 years imprisonment. Nevertheless, that does not necessarily mean that I should automatically impose the prescribed sentence of 7 years for the charge of incest. Instead, I must consider whether there is reason to further reduce the prescribed maximum sentence of 7 years. 

29.	Finally, you committed the offence in breach of the trust reposed in you as the victim’s uncle. The family unit and its extended relations in our country are considered very important. Therefore, Parliament has made the commission of any offence against close relations very serious. The Courts have followed that through with taking into account even a case of a breach of a defector trust very serious. In your case, the victim was not only your niece but was much younger than you. What you did to her was a serious violation of her right as a person. You broke the sacred trust placed in you as a close relative.	

30.	Weighing the factors both for and against you, I note that the factors in aggravation, namely, you being a mature person with children of your own, committing the offence knowing that it was against the law and wrong for you to do what you did and the breach of trust placed in you as a close blood relative, an uncle, far outweighs those in your mitigation. In fact, I find that the factors in your mitigation are rendered insignificant by these aggravating factors. In the circumstances, I consider a sentence of 6 years is appropriate and I impose that sentence against you. Of that, I order a deduction of the period of six weeks you spent in pre-trial custody. That leaves you with the balance of 5 years, 10 months and 2 weeks yet to serve. I order that you serve that sentence in hard labour either at the Ningerum or Bomana Correction Services. A warrant of commitment in those terms shall issue forthwith.

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