N4251

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1018 of 2010

THE STATE

V

FABIAN TABAR

Kokopo: Sawong J
2011: 11, 12 & 14 April

CRIMINAL LAW – Criminal Code S 223 – Incest – Guilty Plea – Sentence – Uncle – Age 41 years and Niece age 18 years at the time of the offence – First Offender – Sentence of 4 years Imprisonment.

Cases Cited:

State v Francis Angosiven (2004) N 2670
State v Gidingeng Yaking (2) (2006), CR 1743/06 (17/10/06) (Unreported and Unnumbered Judgment)
State v Tewa Kolwin Tovin (2006) N 3053 
State v Marcus Pitmete (2007) N 3229
State v Henry Matatenge (2007) N 3218

Counsels:

N. Miviri, for the State
Ms. David, for the Accused

SENTENCE

14 April, 2011

1.	SAWONG, J.: On the morning of the 6th December 2009, the defendant then aged 42 years old took his niece, the daughter of his first cousin to a secluded area where he removed her clothes and had sexual intercourse with her. He was indicted under Section 223 of the Criminal Code for one count of incest. I convicted him and adjourn sentencing him to today. He is now being considered for sentence.

2.	On his allocutus, the offender said sorry to everyone including the complainant and ask the court for leniency.

3.	Counsel for the offender submitted that the offender is 43 years old and married with three children whose ages range between 15 years to 2 years old. He is the only child and had been educated to Grade 6. He is a subsistence farmer. He has no criminal records and has been a law abiding citizen until this event.

4.	The issue before me is what is the appropriate sentence to be imposed on the offender. 

5.	Section 223 of the Criminal Code provides that "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 (7) years."

6.	The term "blood relative" is defined in Section 223 (2). It reads:

"(2) For the purposes of this section, a close blood relative means a parent, son, daughter, sibling (including a half brother or half sister), grand parent, grand child, aunt, uncle, niece, nephew or first cousin, being such a family member from birth and not from marriage or adoption."

7.	In her submissions, Ms David has referred me to several decisions of the court on this provision. She relied on State v Marcus Pitmete (2007) N 3229, State v Francis Angosiven (2004) N 2670, State v Tewa Kolwin Tovin (2006) N 3053, The State v Gidingeng Yaking (2) 2006 CR 1743, (2006) (17/10/06) and State v Henry (2007) N 3218. She urged the court to impose a sentence similar to the sentence imposed in State v Pitmete (supra). 

8.	She submitted in her submissions that the court should consider several factors. These are whether the complainant suffered any physical injuries. Whether the offence was a continuing one? Whether the offender either physically assaulted the complainant or threatened to use force to commit the offence? Whether the complainant became pregnant and whether the offender had any prior convictions. 

9.	In the present case she submitted that the court should take into account the following mitigating factors in favour of the offender. Firstly that he has pleaded guilty. Secondly that he has expressed remorse for his conduct to the complainant and to others. Thirdly he is a first offender and finally that no serious degree of force was used to commit the offence. 

10.	However she conceded that there were aggravating factors in that this was a serious breach of trust in that the complainant is his niece and a very close relative. There was age disparity of approximately 25 years in that at the time of the offence, the complainant was 18 years old and the offender was 41 years. 
Finally, that there was a prevalence of this offence in this province. 

11.	She submitted that on balance, the aggravating factors and the mitigating factors balance out such that a sentence of between 3 to 4 years imprisonment would be sufficient.

12.	Mr. Miviri, counsel for the State submitted that the court should sentence the offender to such a sentence which would not only punish the offender but also send a deterrent message to other would be offenders that the courts would not tolerate this kind of behavior. He submitted that the sentence should be such so as to demonstrate that court will do its part to protect young girls and to protect family as a basic unit. He referred me to my own decision in State v Robinson Tovuna (Unreported and Unnumbered judgement CR 119/10 (11/4/2011).

13.	I have read the authorities that have been referred to me by counsel for the offender. A trend is emerging from those authorities and it appears that the sentences range between the maximum sentences to 3 to 4 years imprisonment. This naturally reflects the principle that each case must be determined on its own facts and circumstances. 

14.	In State v Francis Angosiven (2004) N 2670, Kandakasi J, convicted the offender after a trial of having committed incest with his 15 year old biological daughter which was secured by threats with a knife. There the maximum sentence of 7 years was imposed.

15.	In State v Tewa Kolwin Tovin (2006) N 3053, an offender aged 39 years committed incest with his 15 year old biological daughter. There the offender pleaded guilty and he was sentence to 6 years imprisonment in hard labour. Aggravating factors included that it was aggrieved mutual trust because the daughter had lived with her father from birth.

16.	In the State v Gidingeng Yaking (2) 2006, CR 1743/06 (17/10/06) Unnumbered and Unreported judgement, Kirriwom J imposed a sentence of 6 and 1/2 years imprisonment. The offender was 50 years old and the complainant was 16 years of age at the time of committing the incest. The offender had a prior conviction for assault and was a violent man who ruled the family with an iron fist. It was a single act and after a trial, the offender was convicted.

17.	In State v Henry Matatenge (2007) N 3218, the offender pleaded guilty to two counts of incest. The incest was committed by the biological father on his blood daughter. There were a number of aggravating factors present such as threats or force have been applied by the prisoner and these had been incestuous relationship and had been going on for more than 3 years. There were also breaches of existence or relationship of trust, authority and dependency. Lenalia J imposed a term of 6 years imprisonment on each count and made the sentences cumulative so that the prisoner was sentenced to a total of 12 years imprisonment in hard labour.

18.	In State v Marcus Pitmeti (2007) N 3229, a sentence of 4 years imprisonment was imposed. There the offender then aged 44 years was with his eldest natural daughter then aged 19 years at his house at Takekel village in the Gazelle District. They, in the afternoon walked to another place for some fund raising activity. On the way, the offender had sexual intercourse with his blood daughter who later reported what had happened to her relatives. The girl had been living with her aunt in Port Moresby from the age of approximately 1 year to 15 years. The offender pleaded guilty and he was a first offender.

19.	In the present case, I take the following mitigating factors in favour of the prisoner. First is that he has pleaded guilty. This is an important factor because his plea of guilty has saved the court and the State from conducting a trial. But more importantly in my opinion, his plea of guilty has saved the girl from coming to court and giving evidence in front of complete strangers and having to retell and relieve the trauma of the incident.

20.	Secondly, he has expressed remorse to the complainant. Taken with his plea of guilty, in my opinion this is a genuine expression of remorse.

21.	Thirdly, he is a first offender. It is quite clear that he had been living as a law abiding citizen up until the commission of this incident. 

22.	Finally I note that he did not use any threats or force to commit the offence and that if any force was used it was not over and above the force necessary to commit the crime. Fortunately, for you she did not become pregnant and you did not transmit any sexual disease to her. This was so because you used a condom.

23.	On the other hand, I have also taken account of several aggravating factors. 
The first is that the offence is a serious one in that this was an act committed against a very close relative. The complainant is his niece in that, the offender and the complainant's fathers are first cousins as their mothers are sisters. This kind of abuse of sexual nature brings and creates family disputes and disharmony in the family unit. I do not know what is the relationship between the offender and the complainant's family as a result of this incident other than to make those general observations.

24.	Another serious aggravating factor is that there is a big age disparity between the offender and the complainant in that at the time of the offence the complainant was 18 years old and the offender was 41 years old. 

25.	Thirdly, the offence is a prevalent one, particularly in this province. There is just so much of this type of sexual abuses committed by mature men against vulnerable young close relatives. It appears to me that despite many warnings and deterrent sentences imposed on sexual offenders, the message does not seem to get through to men in the community. Mature men continue to ignore the warnings that have been given by the courts. In saying that, nevertheless the offender must be sentenced for the offence he committed and not for offences other men had committed who had not been apprehended and brought to court.

26.	In the circumstances, it is my view that a short and sharp custodial sentencewould be appropriate. For those reasons, the offender is convicted and sentenced to 4 years imprisonment in hard labour. From that I deduct the remand period of 2 years 1 week and four days, leaving a balance of 1 year 50 weeks and 3 days imprisonment in hard labour to serve.

____________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused