N4888

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 583 OF 2012

THE STATE

V

ALPHONSE MAKIS

Buka: Kawi J
2012: 18th & 24th July

CRIMINAL LAW - Practice Procedure - Plea of Guilty- Accused pleaded guilty to persistent sexual abuse of biological daughter - two counts of persistent sexual abuse with biological daughter. - Section 229D (1)(6) of the Criminal Code - two circumstances of aggravation alleged- accused used a lethal weapon to threaten daughter to submit to his sexual desires. Accused and his daughter were in a sacred relationship of trust, dependency and authority. 

Facts

Alphonse Makis pleaded guilty to an indictment charging him with two counts of persistent sexual abuse under section 229D (1)(6) of the Criminal Code. By pleading guilty he accepted full criminal responsibility for the commission of the crime he committed and he has admitted all the elements of the offence charged.

Held

 (1) The crime of persistent sexual abuse is a very serious crime often in silence so that in computing sentence the court should start at the maximum deterrent penalty of life imprisonment. 

(2) Section 229D(1) defines what amounts to persistent sexual abuse of a child. Persistent sexual abuse of a child occurs "when a person sexually penetrates the child on two or more occasions." 

(3) such incestuous acts between a father and daughter is a horrendous and heinous and evil inspired despicable crime. The parameters of section 229D is wide enough to catch any prohibited sexual relationship such as an incestuous relationship between father and daughter or mother and son. 

(4)Such sexual acts between father and daughter is a gross betrayal of the sacred bond that exists between a father and his daughter. The law of course prohibits a man from having sex with any persons he knows to be of his lineal descendants such as between father and daughter, father and sister or son and mother or son and sister. 

(5) The victim of an incestuous relationship is put to a feeling of shame and embarrassment in the eyes of her community such that she will carry that social stigma for the rest of her life. She will be the subject of gossip amongst her peers and be the subject of much ridicule. She is nothing but a mere laughing stock to be shunned at in the community.

 (6) Perpetrators and sexual predators like the prisoner here who prey on the flesh of their own daughters in order to achieve this most despicable and degradable human acts are sick human beings who should be ostracised from the community of decent and peace loving and law abiding human beings. They should be banished from human society and made to live in a community of uncivilized animals. 

Cases cited 

The State v Mitige Neheya [1994] PNGLR 71
 The State v Donald Keimou (2001) N2295
The State v JB [2007] N3324
 
Counsel

Mrs Varsity Mauta, for the State
Mr. Misil Yawip, for the Accused

24th July, 2012

1. KAWI, J: Alphonse Makis pleaded guilty to an indictment charging him with two counts of persistent sexual abuse of his biological daughter for a long time contrary to section 229D(1)(6) of the Criminal Code. The first count of sexually penetrating his biological daughter persistently as alleged is that on an unknown date between 1st day of December 2007 and 31 December 2007 at Kugumaru village in Buin, South Bougainville, the accused sexually penetrated his own biological daughter one Rayleen Tagui, by inserting his penis into her vagina. At the time of sexual penetration of the victim Rayleen Tagui, she was only seventeen (17) years of age. 

2. The second count the state alleges against the accused is that on an unknown date between the 1st of January 2008 and 31st March 2008, Alphonse Makis of Kugumaru village in Buin South Bougainville sexually penetrated his own biological daughter one Rayleen Tagui by inserting his penis into her vagina.

At the time when the accused sexually penetrated Rayleen Tagui, the said Rayleen Tagui had just turned 18 years old.

3. The Indictment also alleges two circumstances of aggravation as follows: The first circumstance of aggravation alleged in the Indictment is that the accused used a lethal weapon, a knife to threaten the victim into submission to have sexual intercourse. The second circumstance of aggravation alleged in the Indictment is that at the time of the sexual penetration, the victim Rayleen Tagui was the biological daughter of the accused, Alphonse Makis. As such both father and victim are said to be in a very special relationship of trust, dependency and authority.

THE FACTS

4. The facts to which he pleaded guilty were that first he used a knife to threaten her daughter into submission. As soon as his daughter submitted to him, he would take the opportunity to penetrate her vagina as he pleased. The State says that this first occurred on dates between 1st December and 31st December 2007. The other acts of sexual penetration of his biological daughter occurred on unknown dates between 1st January 2008 and 31st March 2008.Again the accused used a knife to threaten her daughter into submission every time he desired her flesh for sexual penetration.

THE ISSUES

5. Two issues arise for my consideration as result of the accused pleading guilty:

a)	The first issue is what kind of penalty should the court impose upon the accused. 

b)	Should part or all of the sentences be suspended considering the circumstances of this case?

THE LAW

6. By admitting to the indictment and pleading guilty to the charges, the accused has admitted the elements of the charge. The law prohibiting what you did is set out under section 229D(1) (6). Relevantly this provision is stated in these terms:

s. 229D- PERSISTENT SEXUAL ABUSE OF A CHILD

 (1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent sexual abuse of a child.

Penalty: Subject to subsection (6) imprisonment for a term not exceeding 15 years.

(2) For the purposes of subsection, it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(6) If one or more of the occasions involved an act of penetration, an offender against subsection (1) is guilty of a crime and is liable, subject to section 19, to life imprisonment. 

7. In my view section 229D(1) defines what amounts to persistent sexual abuse of a child. Persistent sexual abuse of a child occurs "when a person sexually penetrates the child on two or more occasions" 

8. No doubt the facts and circumstances of this case falls squarely within that definition.

9. This incestuous relationship between father and daughter occurred over a long period between 1st of December 2007 and 31st March 2008, a period of about 3 months. Brunton AJ described such relationship between a father and daughter in the case of The State –v- Mitige Neheya [ 1994] PNGLR 71 in the most explicit terms as follows:

"An incestuous act with a child is a circumstance of aggravation of the severe kind. It is a gross betrayal of the most sacred relationship of a father and daughter. When young girls are the victims, it is difficult to imagine that the girls will not be scarred emotionally, perhaps for life".

10. In my view such incestuous act between a father and daughter is a horrendous and heinous and evil inspired crime. The parameters of section 229D is wide enough to catch any prohibited sexual relationship such as an incestuous relationship between father and daughter or mother and son. Such sexual acts between father and daughter is a gross betrayal of the sacred bond that exists between a father and her daughter. The law of course prohibits a man from having sex with any persons he knows to be of his lineal descendants, such as between father and daughter, sister or mother and son. Section 229D in my view even prohibits rape and sexual penetration. The victim of such sexual acts or an incestuous relationship is put to a feeling of shame and embarrassment in the eyes of her community such that she will carry that social stigma for the rest of her life. She will be the subject of gossip amongst her peers and be the subject of much ridicule and will be shunned at in the community. She is nothing but a mere laughing stock to be shunned at in the community.

11. Perpetrators or a sexual predators like the prisoner here who prey on the flesh of their own daughters in order to achieve this most despicable and degradable acts are sick human beings who should be ostracised from the community of decent and peace loving and law abiding human beings. They should be banished from human society and made to live in a community of uncivilized animals.

12. As Kandakasi J observed in The State -v- Donald Keimou (2001) N2295, "Incest is an offence even between willing participants. The main reason for this prohibition, apart from scientific reasons, is to maintain the security, love, respect, honour, trust, happiness, peace and joy of the family unit and blood relations for a better and stronger family, community and a nation". 

SUBMISSIONS

13. Counsel for the accused, Alphonse Makis submitted I should consider the following:

•	It was submitted that the accused had pleaded guilty. His early plea had saved the court a lot of time and effort in conducting a full trial to determine the issues in this case.

•	It had saved the victim from giving evidence and relieving herself from the shame and embarrassment, and terrifying as well as traumatic experiences of sexual encounters at the hands of her incestuous father.

•	The incestuous father is said to be a first offender.

•	The accused is married with 8 children and belongs to the Catholic faith.

•	The prisoner lives with the daily scar of what he has done to his own daughter.

14. The State responded by submitting that:

•	The sexual act occurred within the prohibited degree of Consanguinity.

•	There was a sacred bond between the father and the daughter which was severely breached by the father not once but many times over and over again and persistently.

•	The father's incestuous actions had devastated the other children of the marriage and their mother that they are now living separately from their incestuous father.

•	A knife was used to threaten the victim into submission so that the incestuous father could satisfy his sexual desires.

•	The prisoner was in his 40s when he sexually penetrated his biological daughter who was only 17 years old.

•	The daughter Rayleen Tagui was only 17 years of age at the relevant period.

•	The young victim will live with the trauma of being sexually penetrated upon by her biological father for the rest of her life permanently.

15. When I balance the mitigating circumstances and the aggravating factors together, I find that the aggravating factors outweigh all mitigating factors and reduce the gravity of their effects and tips the scale in their favour.

16. This leads me to consider the question of how I should classify this offence. In my view the net effect of the weight of all aggravating factors put together and the nature of the crime of persistent sexual abuse itself lends weight towards classifying this case as belonging to the worst category of offences involving sex within a prohibited degree of consanguinity. Proceeding from there, I would classify the incestuous father as a worst offender.

SENTENCING APPROACH UNDER SECTION 229D

17. Lay J in the case of The State v JB [2007] N3224 stated a general proposition in sentencing under section 229D in this way:

(a)	 To make a general assessment of the frequency of the offending; 

(b)	To make an assessment of the likely sentence if the offender was sentenced for a series of offences involving the division 2A offence/s particularised in the indictment pursuant to Section 229D (4), keeping in mind that the maximum penalty is still available for the worst case. 

ASESSEMENT OF FREQUENCY OF OFFENDING

18. The indictment alleged only two counts of sexual penetration of the victim. The first count was on unknown dates between 1st December 2007 and 31st December 2007. The second count of sexual penetration was on an unknown date between 1st January 2008 and 31st March 2008.The State argued that many acts of sexual penetration occurred on these unknown dates, but it was only able to allege acts of sexual penetration through the process of plea bargaining to the dates specified in the indictment. In my view when the accused pleaded guilty he accepted that sexual penetration did occur on those dates.

ASSESSMENT OF LIKELY SENTENCES

19. The most likely offences which was alleged in the indictment was breach of the relationship of trust, dependency and authority. This is an offence under Section 229E. Breach of this provision attracts a jail term of 15 years. This was alleged in the indictment.

20. It is trite law in this jurisdiction that the maximum penalty prescribed is reserved for the worst cases under consideration. The maximum penalty prescribed in this case is life imprisonment because there is sexual penetration of the daughter on two counts which is admitted. Under section 229D(6) Matters to be considered when deciding to impose life imprisonment is that if one or more occasions of abuse of a child involves sexual penetration of a child, sentence is life imprisonment. 

21. In this case there are two counts alleged involving sexual penetration of a child on both counts which has been admitted on both counts. Therefore the accused is a perfect candidate liable to imprisonment for life. 

22. But I consider that the imposition of life imprisonment is made subject to the court's sentencing discretion under section 19. Exercising that discretion now I look at cases involving sentencing patterns under section 229D.

23. The first case to look is the case of The State v JB [2007] N3324.

24. This was a case where the offender pleaded guilty to two counts of persistent sexual abuse under section 229D of Criminal Code. The particulars being sexually penetrating his 17 year old daughter on at least two occasions in a period of six weeks and also to sexually penetrating his 15 year old daughter on at least two occasions commencing when she was 13 years and 9 months of age a period of one year and 10 months and infecting her with sexually transmitted disease. He also penetrated another biological daughter on at least two occasions when she was under the age of 16 years. Both daughters became pregnant and both bore him a child each. One daughter gave birth to two children.

25. Lay J held that the appropriate sentence on count one, persistent sexual abuse of the 17 year old daughter over a period of six weeks and being two occasions involving an act of penetration, is 10 years.

26. On count 2 His Honour held that the appropriate sentence on persistent sexual abuse of the younger daughter, being at least two occasions involving an act of penetration over a period of one year 10 months between the ages of 13 years nine months and 15 years, is 16 years imprisonment. The total imprisonment sentence to be served is 26 years. However applying the totality principle the sentences were reduced to 20 years.

27. The other decision I refer to is the decision of Kandakasi J in The State v Donald Keimou [2001] N2295. In that case the accused had pleaded guilty to two separate counts of incest under section 223 of the now repealed Criminal Code. The second born daughter began having sexual relations with his biological father in 1996 when she was in grade 6. That relationship continued from 1996 until 1997 when she gave birth to his child, a baby boy. The relationship with the first born daughter commenced in 1991 to 1996. She too gave birth to another son. Kandakasi J sentenced him to life imprisonment. His Honour made the following sentencing remarks which I adopt with respect.

".........There is nothing to show that you are likely to be rehabilitated and will not be a threat or risk to the victims and their respective children's struggle for survival as best as they could in a bad environment you created for them without any good cause. The seriousness of the offences in the particular circumstances of your case and the need to impose a term that would deter other likeminded persons for the protection of the very basis of our families and communities outweighs any advantages your guilty plea may bring in terms of reducing your sentence to a term of years. 

TOTALITY PRINCIPLE 

28. There is no expressed legislative prohibition under section 229D against what is commonly referred to in criminal sentencing as "quantum leap".

29. Under the penalty regime created by section 229D, Parliament after having considered all things necessary prescribed the maximum penalty of life imprisonment. Section 229D does not even prescribe a minimum term of years or a sentencing range for the commission of this horrendous and most despicable and degradable act defying human intelligence. It is us judges who have considered it necessary to even come down low in rape cases such as John Aubuku where 5 years was imposed. While we play around with differing concepts such as" no quantum leaps" or "disparity of sentencing of co-accused" or such other concepts that have no reflection of the reality such concepts in my view do not reflect circumstances of a particular case. The courts in my view should be more guided by the main purposes of sentencing such as deterrence, rehabilitation or reformation, and retribution. Society's expectation is that offenders such as the prisoner here must be given a deterrent penalty. This means offenders must be given stiffer jail terms so they learn how to behave again before they come out to taste freedom again.

30. Translating this consideration into the objectives and purposes of sentencing I am of the view that a stern deterrent punishment reflecting society's views on offenders will be imposed on the offender.

SUSPENSION OF SENTENCE

31. The Supreme Court in the case of Bruce Tardew v The State [1986] PNGLR 71 laid down the criteria for suspending all or part of the term of sentence. One of this criteria is the requirement for rehabilitating the offender. In this case I cannot see how I can suspend either the whole or part of the sentence. I find that there is little or no prospects of the prisoner rehabilitating his ways again. In fact I find that there is every prospect that the offender will re- offend the moment he is given a suspended sentence and released back to his community. 

PENALTY AND SENTENCE

32. The end result is a jail term which I impose as follows:

(a)	Pursuant to section 229D(1)(6) If one or more of the abuses involvean act of sexual penetration the maximum sentence is subject to section 19, life imprisonment; otherwise the maximum penalty is imprisonment of a jail term not exceeding 15 years. 

(b)	In this case the prisoner pleaded guilty on both counts. Thus on count one I would impose a jail term of 14 years as the young victim was only 17 years of age.

. While the jail term for count two is a jail term of 13 years as the victim had just turned 18 years old. That would give a total jail term of 27 years to be served in hard labour. I order the prisoner to serve this jail term consecutively.

__________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for Prisoner 

__________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner: Public Solicitor