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State v Yaking No 2 [2006] PGNC 98; CR 1743 of 2005 (17 October 2006)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1743 OF 2005

THE STATE

V

GIDINGENG YAKING

(No. 2)

Finschhafen: Kirriwom, J
2006: 12 & 17 October

CRIMINAL LAW – Sentence – Incest – Father and Daughter – Single act – Victim under 16 years – No repentance by prisoner – Maximum penalty is seven years – Sentenced to six and half years imprisonment – Criminal Code (as amended), s.223

Case Cited:
The State v Anere Ota [2005] Unreported National Court Judgment (12/10/05) N2939
Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
The State v Donald Keimou [2001] Unreported National Court Judgment N2295
The State v Steven Angosiwn (No. 2) [2004] Unreported National Court Judgment N2670
The State v Donald David Jr [2002] Unreported National Court Judgment N2371 (12/12/02)
The State v Jane Warkia Melki [2002] Unreported National Court Judgment N2370 (19/12/02)
The State v Herman Kabai [1997] Unreported National Court Judgment N1611
The State v Michael Saitus [2004] Unreported National Court Judgment N2705 (22/11/04)
The State v Patrick Paire [2004] Unreported National Court Judgment N2519 (4/3/04)

Counsel:
J Done, for the State
M Mwawesi, for the Prisoner

DECISION ON SENTENCE

17 October, 2006

1. KIRRIWOM, J: Gidingeng Yaking was convicted of one count of sexual penetration of his own daughter, an offence known as incest, under section 223 of the Criminal Code. At the time of the offence on 15 June 2005 the victim was only 14 years old. Her 15 birthday was due on 24 November 2005. The Public Prosecutor in his wisdom chose only to charge him for incest and none of those offences prescribed under sections 229A and 229B of the Criminal Code which are aimed at protecting child victims from adult offenders, be they their parents, other close relatives or complete strangers. The prisoner in this case is therefore a most fortunate person that he is not going to have to face a heavy jail sentence that often accompanies sexual penetration of minor as provided for under section 229A which is a maximum of 25 years under subsection (1) or maximum of life under subsection (2).

2. The maximum penalty for incest is seven years imprisonment. Despite the immorality of the act of sexual intercourse between persons of the same blood line, such as between father and daughter, mother and son or brother and sister, the offence of incest has always been accompanied by the one common element of consent between the parties. However that consent was obtained was not considered material provided it was between two adults and it was consensual between them. Of course if there was no consent, then it was charged as rape. However, when it came to little children becoming victims of their parents’ sexual appetites or desires, then the issue of consent cannot arise. After all, a girl under the age of sixteen is statutorily incapable of consenting to sex with an adult whether he is her blood relative or not. This is the essence of the amendment to the Criminal Code by the Sexual Offences and Crimes Against the Children Act 2002 which repealed sections 222 and 223 of the Code and provided for a single uniform law for both male and female under the new section 223 and prescribed a new penalty of seven years imprisonment. The reduction was considered necessary as the amendment sufficiently catered for appropriate penalties flexibility has now given the Public Prosecutor greater ineptitude and latitude on the choice of charges to proceed with according to the factual circumstances of the case presented before him and not blindly accept what the police have acted on to bring the suspect into the criminal justice process.

3. The prisoner is a 31 year old married man from Nasing village with three children, the first born is M.G, the victim in this case and two small boys. He was educated up to Grade 6 and thereafter stopped schooling. He has been a villager without any known employment history other than the fact that he comes from a family of seven children, five sisters and two brothers. He accepted the verdict of the court although maintaining his innocence of the charge. It is not an unaccepted reaction given the embarrassment and the humiliation associated with this kind of offence where it involves close family members.

4. He expressed his willingness to pay compensation to whoever the court orders such compensation to be paid. Consequently a means assessment report has been requested. I will return to this aspect of compensation later.

5. There are a number of aggravating factors in this case. The first aggravating factor is that this is a trial that in my view was not warranted. The prisoner had no substantial defence other than a mere denial of the offence when the evidence against him was quite strong and fool-proof. Consequently he had to force his child to appear and relive this traumatizing experience in full view of the public. Secondly, she is only a child. Whatever the effect of her father’s sexual penetration of her is not known because there was no medical examination done and we cannot know what, if any, damage or injury she suffered to her genital organs. Thirdly, there was an existing relationship of trust, authority and dependence that he breached. This is a classical case where this relationship clearly plays out its hand where the daughter was so scared of her father assaulting her that she put up no resistance to her father’s forced violation of her sexually. Fourthly, this is becoming a prevalent offence and decent people are beginning to ask where sanity has gone to. There is little wonder that rapes and sexual offences of all magnitude and types are occurring almost daily everywhere and offences against morality has gone way out of all proportions even amongst the most educated elites and high profile people of all walks of life.

6. The prisoner asked for a non-custodial sentence. This is a very tall request. I can’t imagine the prisoner asking for a non-custodial sentence when offences of sexual abuse of children have escalated resulting in tightening up of the law four years ago. When the maximum for this offence is seven years which is already inordinately low as a punishment for an offence of this magnitude, non-custodial sentence is unimaginable.

7. Compensation as punishment raises another complex mater. In The State v Anere Ota [2005] Unreported National Court Judgment Cr. 898 of 2004 (12/10/05) N2939 the prisoner from Kiwesawa village Finschhafen pleaded guilty to sexual penetration of child under 16. He was initially indicted for incest as the victim was his own niece. Upon reading the depositions, I rejected the plea to incest as the evidence supported a much serious charge of either rape or sexual penetration of a minor under 16 and the charge was accordingly withdrawn and fresh charge was preferred. Both counsel agreed to my hearing the case so I continued to deal with the matter. In mitigation of penalty, counsel for the prisoner submitted that the prisoner wanted to pay compensation and a live pig. I did not request for a Means of Assessment Report in that case as I did in the present case but the observation I made in that case are in my respectful opinion clearly applicable in the case at hand. This is what was said:

"...His lawyer submits that he is willing to pay compensation of K500 and a large pig as reconciliation between him and his sister and her family including the victim. Quite frankly I don’t know how much impact such a gesture would have on mending broken family relationship particularly when the insult and pain inflicted is on his immediate family. It simply looks foolish with great respect. I am therefore not particularly attracted by this invitation and submission. The prisoner cannot trade pig and money for the sacredness and purity of the flesh or body of his own niece of the same blood line that he shamelessly defiled and pretended that life will be back to normal as before.

I have noted the prisoner’s expression of remorse and the desire to reconcile with the victim. But the wound he has caused will remain forever in the family and no amount of monetary compensation can undo the damage done. In some ways, such actions would only add salt to the wound. This case calls for a stern retributive and deterrent sentence that must send a strong signal to all male persons that children must be protected from sexual abuse by family members. Researches have shown that family members are the biggest culprits when it comes to sexual molestation of females under the age of consent and even in cases of sodomy. Because the offenders are persons placed in position of trust authority and dependency to the victims, the victims rarely speak out for fear of reprisals or shame or family pride and dignity."

8. And I can appreciate the rejection by victim and her maternal uncles of any gesture in the nature of compensation to them or to the victim herself. The damage is done and that damage is irreparable. It would be quite naïve for the prisoner to think that he can pay K400 cash and one pig in compensation to the maternal uncles and the clock turns back to zero and everything is back to normal again and he can take his daughter, returns to the family home and life goes on as usual. One wishes it was as easy as that but the reality is different. After defiling his own daughter, which he persists he is innocent of, it would be ludicrous to compensate other people for crime against his own daughter. If someone else defiled his daughter he would be the recipient of any compensation ordered. Can he compensate himself in this case? If the daughter is adamant that the father must go to jail and that she would not approve of any form of compensation, the seeds of separation from him are indeed sewn and will grown bigger and stronger as she grows older. Any hope of reconciliation in the future is a fat chance that the father will need to approach carefully. Right now there is a spiky thorn between him and his daughter who is determined to see him punished for his crime against her.

9. I find there to be more aggravating factors in this case than those that mitigate the severity of the offence. The prisoner is not even a first offender. He has a prior conviction for assault in March 2005 where he was convicted, cautioned and discharged. This would be, it seems, the assault of one of his in-laws in the village for which he was charged and taken to court which he says he won the case and that win did not go down well with his in-laws who then found a reason to trump up this charge against him, in revenge through their nieces, the victim. The truth is he did not win the case, he was convicted, cautioned and discharged.

10. The prisoner kept a very tightly knitted and strict family that did not interact much with the public at Nasing village. Often they stuck to themselves and according to the LLG President of Yabim/Mape. Abai Labi, who is also from Nasing, the family never took part in community activities and kept to themselves. He said the prisoner was not a role model of a fine young man in the village whom the community admired for his service. He was a violent man who did not get along well with many people including his own family members and his brothers. He was therefore not an appropriate person for punishment other than custodial sentence. This view is supported by the prisoner’s own brother Cliff Yaking who says that for what he did to his daughter, there ought to be no other punishment but imprisonment, let him go to prison and learn his lesson. As I pointed out in the judgment that the prisoner had created a secluded family unit which he more or less rant it with iron fist that no one dared come in or go out. It was a perfect sanctuary for the type of complaint made taking place as the grounds was fertile for its happening because no one can lift a finger out of fear of him and no one could know what was happening from outside. Knowing now the position that the victim’s mother has taken which is not surprising, it would have been a long silent suffering for the victim had she not spoken out.

11. The Supreme Court in Pubic Prosecutor v Vangu’u Ame [1983] PNGLR 424 presided by Kidu, CJ. Kaputin and McDermott, JJ said per Kaputin J at p. 433:

"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 order 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 law makers 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 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."

12. Had this offence been proceeded with as either rape or sexual penetration of child under 16, the prisoner would be looking at no less than 15 and no more than 20 years imprisonment. But I can’t give him such a sentence for the reasons I have already mentioned. The highest sentence imposed on charges of incest is life imprisonment on 12 October 2001 where the father maintained incestuous relationships with his two daughters and they bore him three children in The State v Donald Keimou [2001] Unreported National Court Judgment N2295 by Kandakasi J. This case was decided before the amendment to the law passed in 2002.

13. In The State v Steven Angosiwen (No.2) [2004] Unreported National Court Judgment N2670 Kandakasi J expressed his disappointment on the current sentencing regime in incest cases and imposed the maximum of 7 years prescribed by the law. It was a case of father and his biological daughter.

14. According to the Criminal Code Section 223, the maximum that the law allows as penalty is seven years imprisonment. However, I note that there are quite a number of cases of similar charge and nature where the prisoners were and are being sentenced to well in excess of 10 to 20 years. On incest cases any sentence beyond 7 years is devoid of legal authority. Either the law must change or the Public Prosecutor must apply the new Sexual Offences and Crimes Against the children Act 2002 correctly and purposely to achieve the desired objective of the Act itself.

15. Nearly all reported cases condemn crime of incest as a most serious offence against not only morality but also against humanity. Human beings as the most sophisticated of the living creatures on earth are distinguished from animals as creatures with moral values where as animals do not make value judgment. When father sleeps with his daughter or son sleeps with his mother as in The State v Donal David Jr [2002] Unreported National Court Judgment N2371 (12/12/02) or vice versa as in The State v Jane Warkia Melki [2002] Unreported National Court Judgment N2370 (19/12/02), that fine distinction is removed so humans no longer have superior status over animals anymore. Jane Warkia Melki and Donal David Jr are cases decided before the new laws came into force so the sentence imposed were 9 years imprisonment in hard labour for the son (this was when the maximum penalty was life for male and three for female) and two years on the mother. Under the new law there are no separate punishments for male and female offenders, there is only one punishment for all.

16. What may be considered in the prisoner’s favour is that there were no repeated acts. But this can be of no credit to the prisoner. It can be attributed to the victim’s courageous decision to blow the whistle on her father and immediate removal of herself from the family home that save her from further physical and mental torture by this scandal just begun. Often this kind of relationship goes on where the victim is so scared of reporting until a child is born to the daughter as in the case of The State v Herman Kabai [1997] Unreported National Court Judgment N1611 and in most recent cases of The State v Michael Saitus [2004] Unreported National Court Judgment N2705 (22/11/04) and The State v Patrick Paire [2004] Unreported National Court Judgment N2519 (4/3/04). Offences of this nature have left far reaching devastation and lasting scars on many women who were abused at so early age and their prospects of happy life and proper marriage destroyed as they have to deal with the psychological effects of what they went through during their early years.

17. I have perused the Pre Sentence Report from the Community Based Corrections and the prisoner continues to maintain his innocence but wants to pay compensation and take his daughter back home and apologize to her and continue life as normal.

18. In all the circumstances I sentence the prisoner to six and half years imprisonment in hard labour. I deduct six months and one week pre-trial custody period, he shall now serve the balance of five years eleven months and three weeks in Buimo.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence