N5746

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR.NOS.806 & 807 OF 2014

THE STATE

V

ROSE PHILIPO & TOUVA NUNUA

Kokopo: Lenalia, J.
2014: 15th & 22nd July

CRIMINAL LAW – Incest – One count of incest – Plea of Guilty – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act, s.223 (1).

CRIMINAL LAW – Incest aggravations – Breach of trust – Pregnancy – Child born to victim – Incest and like offences very prevalent in PNG community – No substantial age differences – Aggravation – Punitive and deterrent sentence called for – Worse type case – Sexual penetration persisted after the pair were found out and after community leaders had warned them – Sentence of 4 years appropriate.

Cases cited

The State v Mitige Neheya [1888-89] PNGLR 174 170
The State v David Kiaplaen Daniel & Pauline Warpin Daniel (1999) N1877
The State v Arthur Maradi (1999) N1878
The State v James Donald Keimou (2001) N2299
The State v Amos Audada (2003) N2464
The State v Eddie Sam (2004) N2521
The State v Henry Tade (2004) CR.N0.1104 of 2004
The State v Adrian Hamos CR.NO.701 of 2005 (13.9.05)
Taiba Maim-v - Sma [1972] PNGLR 49
The State v Henry Matatenge (22.2.07) CR.N0.480 of 2007

Counsel

L. Rangan, for the State
J. Wala, for the Accused

22nd July, 2014

1. LENALIA, J: The two prisoners pleaded guilty to one count of incest with each other when Rose Philipo was the first cousin to Touva Nunua. This is contrary to s.223 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

2. The relationship between the two offenders commenced from January 2010 and continued until 30th April 2014. Such relationship was a continuous affair between the two until the time village elders referred them to the police. From such relationship a child was born in February 2014. 

Relationship

3. The two prisoners are first cousins because the victim's father and the co-offender's mother are biological brother and sister. The two prisoners are close blood relatives in terms of the section charged. Section 223 (1) (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 defines incestuous relationship in the following terms:

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

(3) No person shall be found guilty of an offence under this section if, at the time the act of sexual penetration occurred, he was under restraint, duress ot fear of the other person engaged in the act." 

Facts

4. The facts of this case shows that, the two prisoners Rose Philipo and Touva Nunuar come from Nangas Ward, Lassul Baining Local Level Government, Gazelle District, East New Britain Province. The two prisoners are a daughter and son of two biological brother and sister. Rose is the daughter of Philipo and Touva the son of Bernadette. Philipo and Bernadette were born from the same father and mother. 

5. Sometime in January 2010, back in their village, the two befriended each other. The friendship developed and people noticed that the two were having sexual relationship. When the matter came into light, the Ward Member Mr. Bruno Anton says in his statement dated 30the April 2014 that, the parents and relatives of the two prisoners tried all their best to stop the two from continuing with their relationship but Rose and Touva did not accept parental and community leaders admonitions. Out of such incestuous relationship, a child was born and named as Lawrence. The child may have been born in January or February 2014. 

6. Repeated attempts of settlements were made to discourage the two from continuing their affair but they failed. The facts reveal that, the leaders wanted to separate the two by putting one of them in another location, but this failed as the second prisoner openly told the leaders that, he will not leave and they were to stay together until they are formally married. 

Addresses on their last say

7. In case of Rose, she said sorry to the court for what they did. She expressed remorse to her parents and those of her co-prisoner. She asked if the court could give her a good behaviour bond since she has a child to care for.

8. Prisoner Touva also expressed similar remarks as the first prisoner. He said sorry to officer of the law enforcing agencies. He asked the court to give him a good behaviour bond so he can attend to gardening to support him and his parents. 

Counsels Submission on Sentence

9. On behalf of the two prisoners, Mr. Wala submitted that, the prisoners are charged with a serious charge of incest carrying the maximum penalty of 7 years imprisonment. Counsel asked the court to consider the following extenuating circumstances: 

•	Their guilty pleas,
•	They first time offenders,
•	Their expression of remorse to their parents, relatives and community leaders,
•	Compensation made by Rose with a pig and K1,000.00,
•	The two are young persons and 
•	There are no more grudges between the parents of the two accused.

10. Counsel submitted that this was a case where, no force or harm was applied by neither of them. In the case of prisoner, Rose' counsel submitted that she has a child to care for and a non custodial sentence should be considered. Counsel made similar submission for the male offender and asked the court to make orders to the pair not to repeat what they did. 

11. Mr. Rangan, counsel for the State submitted that the offence of incest is serious and as on the instant case, a child was born. Counsel submitted that despite interactions by community leaders the two continued their affair until they were referred to the police. He asked the court to consider some compensation had been made by the female offender and referred to the statement by the Ward Member Bruno Anton about what the community did to intervene and stop the prisoners from their relationship. 

LAW 

12. The accused is charged pursuant to s.223 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. The maximum penalty prescribed by Subsection (1) of the Section is an imprisonment term of seven (7) years. Subsection (2) of the section defines 'close blood relative' in the following words:

"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."

13. The offence of incest is punishable by an imprisonment term of not more than seven (7) years. Like any offences committed against the Criminal Code or any other legislations, as on the instant case, there are aggravations involved. As on this case, the first aggravating factor is that of their relationship. The two prisoners are very closely related. The case of The State v Mitige Neheya [1888-89] PNGLR 174 establishes that incest is a violation of the most fundamental principle of the 'sacred trust' that holds any society together. Breach of the sacred trust leads into a lot of bad consequences such as family breakdown resulting in lawlessness. 

14. PNG legislators decided that the penalty for incest should be 7 years so the court is bound to apply the law as it stands. Let me now cite some incest cases to see the trend of sentencing and the approach taken by National Court judges in dealing with incest cases. In The State v David Kiaplaen Daniel & Pauline Warpin Daniel (1999) N1877 an incest between the mother and her son. David Kiaplaen was sentenced to 8 years under the old provisions. One year suspended while Pauline was sentenced to 2 years. This case and the others I now refer to were brought under the old section before the coming into operation of the new amendment in April 2013. 

15. In The State v Arthur Maradi (1999) N1878 the accused was sentenced to 8 years with part of the sentence being suspended. Those were cases in late 90s. On the recent trend of sentencing before the new legislation came into operation, in The State v James Donald Keimou (2001) N2299, the accused in that case was sentenced to life imprisonment. In The State v Amos Audada (2003) N2454 the accused was jailed for a term of 10 years. In this Province, in The State v Eddie Sam (2004) N2521, the prisoner was sentenced to 17 years imprisonment for nine counts of incestuous relationship with his biological daughter. In that case, the prosecution was also brought under the old section. 

16. In The State v Adrian Hamos CR.NO.701 of 2005 (13.9.05) the accused pleaded guilty to one act of incestuous relationship with his cousin sister. He was sentenced to 4 years imprisonment. That was a case in Buka, in the Autonomous Region of Bougainville. In The State v Henry Tade (2004) Cr.No.1104 of 2004 a case in this Province, the accused was sentenced to 4 years. The above case was the one brought under the new legislation.

17. Incest committed between persons define the law (s.223(2) of the Criminal Code) and is by its very nature must be regarded as very serious because it is committed against statutory prohibitions just like any other law as in the present case there are aggravating circumstances. The court finds that, there was and there is very close bond or ties that exist between the two offenders and their family members. 

18. It is not the case where you two have offended against the law. But even your custom has been infringed. The PNG Constitution in Schedule 2.1 (1) and (2) say that, custom was adopted since Independence and is part of the underlying law of this country. Schedule 2.1 (2) sates that, where a custom or practice in a community is inconsistent or repugnant to the general principle of humanity, such custom should not be adopted as part of our underlying law. The court notes comments by the Ward Member Mr. Bruno Anton and Mr. Albert Niruk a Ward Development Committee member who expressed the community concern on the manner you twos acted when you were found out. You continued your relationship until you were referred to the police. 

19. In the circumstances of the present case, there are two serious aggravations. First, the two of you are first cousins. Secondly, if you two were thoughtful, could have stopped after you were found out. You made a mockery of your custom by continuing to commit incest. If you cannot listen to your community leaders and your parents, there is no guarantee that you can obey orders from higher authorities. Thirdly, out of your relationship, an innocent child was born. Imagine the fate of your child when he grows up and knows about how he was born and who are the mother and father. 

20, The offence of incest is very serious but the Parliament saw it fit to reduce the maximum penalty from life imprisonment to just 7 years. It does not make any sense as most communities in this nation cannot readily accept this type of behaviour. In the old days in many communities in this country, where a person committed incest of a near kin or relative, the actors would usually by custom, face the death penalty either by being forced to commit suicide or their relatives would killed them. 

21. I compare the instant case with cases such as The State v Henry Tade (2004) Cr.No.1104 of 2004, The State v James Donald Keimou (2001) N2299, The State v Henry Tade (2004) Cr.No.1104 of 2004, The State v Henry Matatenge (22.2.07) CR.N0.480 of 2007 or that of The State v Arthur Maradi (1999) N1878 where after the offenders were found they discontinued their incestuous relationship. 

22. On the instant case, having considered all mitigations submitted in favour of the two prisoners on one hand and the aggravating circumstances put against them. I have also considered the principle enunciated in previous cases which say that the maximum penalty should be reserved for the worse type case as stated in Taiba Maim-v - Sma [1972] PNGLR 49. 

23. In the circumstances of the present case, I consider a sentence of 4 years imprisonment appropriate. They are sentenced to 4 years imprisonment. They both shall serve the term in custody. Any time spent in custody shall be deducted from this sentence. 

________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused