N5764

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR.NO.735 OF 2013

THE STATE

V

BEN SOLOMON (NO.3)

Kokopo: Lenalia, J
2014: 16th, & 22nd July, 3rd, 10th & 22nd September
 
CRIMINAL LAW – Crime of Incest – Criminal Code s.223 (1) (2) of the Criminal Code as Amended

CRIMINAL LAW – Crime of incest – Sentence after finding of guilty – Offence aggravated by breach of trust, authority and dependency. 

Cases cited.

The State v Mitige Neheya [1888-89] PNGLR 174
Grayson Andowa v The State (1998) SC 576
The State v James Donald Keimou (2001) N2299
The State v Amos Audada (2003) N2454
The State v Eddie Sam (2004) N2521
The State v Penias Mokei (No.2) (26.8.04) N2635
The State v Kulume Augustine (4.9.2014) unreported judgment Cr.No.83-84 of 2014

Counsel

Mr. L. Rangan, for State
Mr. P. Kaluwin appeared for Mr. Wala, for Accused

22nd, September 2014

1. LENALIA, J: The prisoner was found guilty of two counts of incest pursuant s.223 (1) (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. 

2. The offence of incest has always been serious. Under the section charged, the prisoner could be sentenced to the maximum term of 7 years imprisonment. Section 223 (1) (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 defines incest 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 or fear of the other person engaged in the act." 

3. In this case, there are a number of very serious aggravating circumstances I would like to address. First there was breach of trust existing between the victim and the prisoner. As the evidence revealed on trial, the prisoner and victim are first cousins. This is because, the offender is the son of the biological brother of the victim's mother. 

4. In law, they are first cousins. So that the level of breach of trust on this case is very high. The section charged has been designed purposely to protect customary relationships and that is the very reason why the Parliament thought that, because, the crime of incest involves relationships, the maximum should be reduced to 7 years. Prior to the amendments that came into force on 10th April 2003, the maximum penalty was life imprisonment. 

Relationship of Prisoner to the Victim

5. The mother and father of the victim Mrs. Benith and Mr. Pardon Titimur expressed shock over what happened to their daughter. The victim's mother is the blood sister of the father of prisoner. 

6. According to the pre-sentence report, Mrs. Titimur was very concerned about what the prisoner did to her daughter. The incidents of incestuous relationship had broken the family ties between the victim's parents and those of the prisoner. 

Allocutus

7. When the court asked the prisoner if he wanted to tell the court anything about the sentence that would be imposed on him, he said, he would rather remain silent. On his antecedents, according to Mr. Rangan of counsel for the State, prisoner has no prior matters.

Defence submission on sentence

8. For the prisoner, Mr. Kaluwin asked the court to consider the prisoner is a young man. He asked the court to consider the nature of sex was oral sex and there has been reconciliation. He asked the court to consider, there were some elements of consent and no sexual diseases were transmitted to the victim. 

9. On sentence, counsel asked the court to consider the Pre-Sentence and Means Assessment Reports and the fact that, the prisoner has made reconciliation and there is a further claim made by the victim for a sum of K5, 000.00.

Prosecution address on sentence

10. For the prosecution, Mr. Rangan submitted for a deterrent sentence for this heinous crime. He asked the court to consider a number of factors such as the prevalence of this crime, the breach of trust since the prisoner was in a relationship of trust authority and dependency to the victim. 

11. Counsel further submitted that this case went by trial and the fact that the prisoner had not shown any remorse for defiling his first cousin. Counsel referred to the case of The State v Kulume Augustine (4.9.2014) unreported judgment Cr.No.83-84 of 2014 where the offender was charged for persistent sexual abuse of his own daughter. He was sentenced to 9 years. 

 Law

12. On the relationship of trust, authority and dependency the law safeguards such relationship by defining such relationships in s.6A (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. That Subsection states:

"(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where – 

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step-sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or 

(f) the accused is a counselor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or 

(h) the accused is a police or prison officer and the complainant is in his care or control."

13. The maximum penalty for the crime of incest is 7 years imprisonment. In the instant case, the prisoner breached the trust existing between him and his first cousin sister. The prisoner is required by law to provide safety to his extended family members and the victim and the breach he caused is very severe indeed. 

14. Such breach causes great shame in the Tolai community and as in your case has caused great havoc in your family ties first with your parents and those of the victim and the common PNG extended family relationships. 

15. Sexual offence of any kind between parents and children and their children, or between close blood relatives in terms of Sections 6A, 223 (2) and 229E of the Criminal Code (Sexual Offences and Crimes Against Children) Act is an abuse of the trust placed on such relationship not only by law but by custom and the human logic is that close blood relatives are expected to respect the prohibited degrees of consanguinity and affinity which have existed from time immemorial to date.

16. 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 a child has in his father or mother. The offence infringes and violates the fundamental duty of the father and mother to care for their children and rear them up in the manner expected by the Constitution and the law. The above case sets out appropriate sentencing guidelines in incest cases. 

17. The recent trend of sentencing in incest cases or ordinary sexual penetration case is increasing. As in The State v James Donald Keimou (2001) N2299, the accused in that case was sentenced to life imprisonment. The charges were brought under the old incest provision. In The State v Amos Audada (2003) N2454 the accused was goaled 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. 

18. The facts of this case show that the two prisoners committed incest many times. One passage particularly appropriate to the present case comes from the case of Grayson Andowa v The State (1998) SC 576 where Woods J; Injia J; (as he then was) and Akuram J; said:

"One feature of many of these incest cases is that once the man has committed one act of incest against a daughter or sister he often repeats. In the above-mentioned case there were repeated acts and in the case before us now there are two counts and the evidence is that the appellant was wanting to do it again. This highlights the importance of stopping these incest acts as soon as discovered because they tend to repeat and suggests that two counts can be as serious as many as if not stopped they do lead to many."

19. Speaking of the effect on the family and the victims of this type of crime, Kandakasi J; made the following pertinent observations in the case of The State v James Donald Keimou (2001) N 2295 which, with respect, I fully endorse:

"... it no doubt destroys trust, the security of the home and leaves for ever lifetime scars for the victim and a bad stigma for him or herself and his or her family and relations. Love gets replaced by hate and trust with distrust. Insecurity replaces security and fear replaces confidence in the family unit and the immediate community. Happiness, peace and joy are replaced with shame, ridicule and unhappiness in the family unit and in the wider community. If the victim gets infected with sexually transmitted diseases, his or her health is replaced by sickness."
 
20. The above comments were made in relation to the cases of a father and his two daughters. In the instant case, the prisoner and the victim are first cousins. I agree with Mr. Kaluwin that there may not be great age difference but the fact remains that this was an incestuous relationship. 

21. Crimes of incest cannot be treated lightly. The crime itself is very serious offending against the law of this nation, human logic, and most importantly, the Tolai culture. I accept Mr. Rangan's submission that, the offence of incest is against the custom of the Tolai society. It is not only in the Tolai community. It is a custom that has existed from time immemorial to date in all communities in this nation. 

22. I must add that the victim of this case should have also been arrested. I raise this point that it is about time, police consider arresting co-actors of incestuous relationship to also be brought to justice so not only male actor feel the pinch of law by female actors must also be hold responsible for this heinous crime which causes havoc in communities concerned. 

23. On sentence, I consider the sentencing guidelines set by Cannings, J in The State v Penias Mokei (No.2) (26.8.04) N2635. Cannings, J. which I have quoted in many cases. I have covered some of those factors in this discussion. One of the relevant considerations which His Honour made in that judgment is "the level of breach of trust". If the relationship of trust between the accused and the victim is very close, the more serious the betrayal of trust it becomes and the higher the penalty should be. 

24. I have considered all addresses on sentence. I have also considered all comments in the pre-sentence and means assessment reports. I consider that if the parties want to pay further compensation, it is really up to them to do so as part of reconciliation. On this case, the court will not order further compensation. 

25. As part of criminal practice, I remind myself about the totality principle which requires that when a decision is made to make two or more sentences consecutive, I must see that a total is just and appropriate: Public Prosecutor v Terrance Kaveku [1977] PNGLR.110, see also Mase v The State [1991] PNGLR.88. I have considered options of imposing concurrent or consecutive sentences. 
The court considers cumulative custodial sentences should be imposed. 

26. The court imposes 5 years imprisonment for Count 1 and for Count two (2), 5 years is also imposed to be served cumulatively upon each other making a total of 10 years. The custody period shall be deducted. He shall serve the balance.

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