N6438
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 198 OF 2016

THE STATE
V
PAUL PATRICK
Misima :	Toliken J.
2016: 	07th April

CRIMINAL LAW - Sentence - Incest - Between first cousins - Plea - Mitigating factors - First time offender - Early plea - Co-operated with police - Relationship not very close - Prisoner sustained injuries in motor vehicle accident while in custody of the State - Complete removal of spleen - Medication for life - Aggravating factors - Complainant 17 years old - Relationship subsisted for over 2 years - Complainant became pregnant - Prevalence of offence - Matters raised in allocutus - Prisoner denies fathering second child born to complainant - Prisoner says relationship consensual - Not negatived satisfactorily by State - Applied to benefit of Prisoner - Appropriate sentence - 4 years less period in custody - Criminal Code Ch. 262, s 223.
CRIMINAL LAW - Sentence - Whether to suspend - Principles on suspension considered - Suspension not appropriate - Prisoner's need for regular supply of medication considered - Best served if prisoner serves full term of resultant sentence in Giligili - Recommendation for transfer to Misima on completion of Renovations to Rural Lock-up.
Cases Cited:

Avia Aihi v The State (No. 3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Mitige Neheye v. The State [1994] PNGLR 71
Public Prosecutor v Done Hale (1998) SC 564
Public Prosecutor v Bruce Tardrew [1986] PNGLR 91 
Saperus Yalibakut v The State (2006) SC 890
The State v Jonathan Kainamale; CR No. 722 of 2014 (Unnumbered and unreported judgment dated 12th February 2016) 
The State v Douglas Natilis (unreported and unnumbered judgement (2004))
The State v Jimbe(2012) N5161 
The State v Francis Angosiwen (No.2) (2004) N2670
The State v Mandari (2007) N4969 
The State v Philipo (2014) N5746 
The State v Samuel Kawar (2011) N4234
The State v Sevi Kwetok (2011) N3389
The State v. Tikiria Amos (2005) N2614

Counsel:

H Roalakona, for the State
C Kambua, for the Prisoner

SENTENCE 
07th April, 2016
1.	TOLIKEN J:Paul Patrick, this morning you pleaded guilty to an indictment charging you with one count of incest - sexual relations between close blood relatives - an offence under Section 223 (1) of the Criminal Code Ch. 262 (the Code).

2.	You were charged that on an unknown date between 2010 and 2013 at Kimbepwap village, Rossel Island, Milne Bay Province you engaged in an act of sexual penetration with a close blood relative that is your first cousin Jill John (the complainant).
THE FACTS

3.	The brief supporting facts which you admitted and upon which I m going to sentence you are these. You and the complainant Jill John are first cousins in that your fathers are biological brothers. On an unknown date in 2010, you commenced a sexual relationship with the complainant. As a result of this relationship the complainant gave birth to a baby girl in 2012.  In 2013 the complainant gave birth to a second child and as a result you were reported to the police and subsequently charged. 
THE OFFENCE 
4.	 The offence of incest is provided by Section 223 of the Criminal Code (as amended). It says:
223.	Incest
(1)	A person who engages in an act of sexual penetration with a close relative is guilty of crime.

Penalty: Imprisonment for a term not exceeding 7 years.

(2)	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.
(3)	...

5. 	While the maximum penalty is 7 years, this, however, does not mean that you will be sentenced to 7 years imprisonment. This is because the maximum penalty for any offence is always reserved for the worst of cases. Furthermore, what the sentence will be will depend entirely on the merits and the peculiar circumstances of each case and the circumstances of the offender. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92)

SENTENCING ISSUE(S)

6.	I must therefore determine a sentence for you that is appropriate to the circumstances of your case. To do this I must determine firstly whether or not your case falls within the worst category of incest. If I find that it is, then I have the discretion to impose the maximum. If not then I can impose a lesser penalty. Lastly I must then decide if your sentence, or any part of it should be suspended.	
ANTECEDENTS
7.	You are 26 years old and come from Kimbepwap village, Rossel Island, Samarai-Murua District in the Milne Bay Province. You are married with three children. You come from a family of seven siblings of which you are the third born. Both your parents are still alive. You are a Roman Catholic and have been educated up to Grade 8 only. You have never been formally employed - hence you are a simple subsistence villager. You have been in pre-trial custody for a period of nine months and three weeks since you were arrested on 17th June 2015.
ALLOCUTUS
8.	When invited to address the Court before sentence you made the following statement:
a)	I stand before the eyes of God and the Court. I would like to say sorry to God, to the State and to the victim’s family for committing this offence. You Honour, I am a married man with a legal wife and four children. All my life I knew nothing about incest. Jill John comes from a family of incest. They caused some incest problem before which [disrupted] my family relations and I was involved in this incest problem in 2010. Unfortunately, there were no threats. It was according to the will. This 	led to the first child. 

b)	I went through several mediations and I was then sent to Tagula Government Station for the Government Officers to look into the case. They strongly warned me and told me to stop totally and they told me to pay maintenance for the first child.

c)	The second child, born in 2014, I had nothing to do with it. Because I was involved with the first child, the blame for the second child was put on me. I asked for mediation to tell the community and the leaders that I was not responsible for the second child. No-one stood by my side. So the report was given to the Police by the victim's father. I was arrested on 17th June 2015 and brought to Bwagoaia Police Station. On 23rd June 2015 I was taken to Alotau Police Station. On 07th July 2015 I was formally charged and appeared in court and 	then sent to CIS.

d)	During one of the mentions, I was involved in an accident involving a State vehicle in which I sustained a broken spleen and ended up at the General Hospital. I was given an operation where a 25cm cut was made from my chest to my belly button. The Doctor advised me and according to my medical report I will stay nearly all my life on 	medication.   

e)	Therefore, I now ask for your mercy. If there is any possibility … I 	can go to the village for my family to look after me. That is from me and may God bless you."

SUBMISSIONS
9.	Your lawyer Ms. Kambua submitted that an appropriate sentence for you should be 4 years imprisonment which she said should then be wholly suspended. This is because this is not a worst case of incest. She said that this was a consensual relationship between adults - you and your cousin sister - which when it became known to your respective parents and community leaders resulted in your being sent to Tagula Government Station for disciplinary purposes.  She said your relationship stopped in 2013, but when the complainant became pregnant again in 2014 her parents thought that you were responsible for that as well, so you were reported to the police. 
10.	Ms. Kambua cited several mitigating factors in your favour, though, she did concede that a child was born to this relationship and the offence is prevalent. Counsel also cited a few cases which she said could assist me in arriving at an appropriate sentence for you.  I will come to these later in this judgment. Finally counsel submitted that any matters you have raised in your address to the Court that the State does not negative or dispute should be applied to your benefit.
11.	Ms. Kambua finally brought to the Court's attention an affidavit which you filed this morning in support of the injuries you suffered in the accident you referred to in your address to the Court. The Medical Report annexed to your affidavit shows that you were involved in a motor vehicle accident on 09th November 2015 and taken into the Emergency Department of the Alotau General Hospital in severe haemorrhagic shock. After fluid resuscitation, you immediately underwent an operation to remove your spleen. (Splenectomy) While you recovered eventually and were discharged on 16th November 2015 you will be on life-long medications to prevent infections associated with the removal of your spleen.	  
12.	On the other hand, Ms. Roalakona on behalf of the State submitted that an appropriate sentence for you should be between 4 - 7 years. This is because you and the complainant are very closely related (first cousins), the complainant was only 17 years old when the relationship started in 2010, there was some form of intimidation, the complainant became pregnant twice, the relationship went on for 3 years and the offence is prevalent. 
13.	Ms. Roalakona also cited a few cases of previous cases decided by this court (the National Court). I will refer to these cases presently.
 
CRIMINALIZATION OF INCEST - THE RATIONALE
14.	What is the reason behind criminalizing sexual relations between close blood relatives, notwithstanding that they may be two consenting adults?

15.	 In The State v Jimbe (2012) N5161, I sentenced the prisoner to the maximum penalty of 7 years. He was a repeated offender, having previously been jailed for committing incest on the same victim - his half sister. In that case I made the following comments: 

	9.	The crime of incest is a serious attack on societal norms and 			morals and more so, on the family unit. As noted by this court on 		the State-v- MKB [1976] PNGLR 197, the true rationale of the 			criminal law in respect of incest is to enforce our moral values 			and beliefs 	and therefore sentences given to offenders must 			reflect these and the public’s abhorrence of the offence.
10.	Sevua J. aptly described the crime of incest as driving a wedge 	between families and creating great disharmony within a family 	unit and that it breaks up marriages and sends children and 	mothers away from the matrimonial home, perhaps for some, 	into 	poverty:  The State v. Tikiria Amos (2005) N2614. The 	crime of incest was once punishable by life imprisonment. 	Parliament, 	however, despite the ever increasing occurrence of 	the offence, in its wisdom, reduced the penalty to the current 7 	years (Sexual Offences and Crimes Against Children) Act 	2002(No.27 of 2002) s. 13). 
11.	This has attracted judicial comment by judges of this court, notably by their Honours Sevua J. (as he then was) and 	Kandakasi 	J. Kandakasi J. went to the extent of saying that 	Parliament had made a mistake in doing so: The State v. Tikiria 	Amos (2005) N2614; The State –v- Douglas Natilis (unreported 	and unnumbered judgement, 2004); The State - v- Francis Angosiwen (No.2) (2004) N2670). Whether or not Parliament did 	in fact make an error is moot given the presumption of law that Parliament 	makes no error. However, the sentiments expressed by the judges are valid and ought perhaps to be taken seriously 	by the law-makers because, to not do so would be tantamount 	to condoning a social ill and criminal behaviour that cuts right through to the very fabric of the family unit.
12.	Criminalizing sexual intercourse within the degrees of family relationships prescribed by s 223 (2) of the Code, is the society’s expression, through Parliament, of its disapproval of this type of behaviour. The crime of incest has increased markedly over the years, and unless Parliament does something about increasing 	the penalty, this abhorrent behaviour will continue to flourish to 	the detriment of many families and the society as a whole. Until that happens, the State through the Public Prosecutor must, as suggested by Kariko J. in The State v Samuel Kawar [(2011) N4234], exercise its independent discretion to lay charges with great care 	so that the appropriate charges are laid in circumstances where evidence establish rape (Section 347) or sexual penetration of a 	child under 16 years (s 229A) or persistent sexual abuse of a child (s 229D), so that 	appropriate sentences can be imposed on the guilty.
13.	So while Parliament on its part may have seen fit and justified to 	reduce the penalty to a mere seven years, the courts are duty-	bound to enforce and apply the law as they find it as best as they 	can. The courts have a duty to society to impose sentences within 	its powers that reflect the gravity and general abhorrence and 	distaste with which virtually all societies in Papua New Guinea 	view the crime of incest. While the courts are not judges of 	morality they have a moral and legal duty to enforce the people’s 	will if they so choose to legislate against behaviours that are 	against morality, such as incest, so that standard acceptable 	behaviour is maintained.

16.	Incest is a crime as well as serious infraction against morals in almost every society and the Rossel Island society is no exception. In our Melanesian societies, incestuous relationships have in the past attracted very stiff penalties including ostracism, or in the very worst of cases capital punishment. In the Mosaic Law of the Bible, incest was punishable by death. So as we can see this is not by any means a trivial offence.

17.	Incest is not a victim-less crime. Where the act is not consensual the obvious victim is the complainant. She will unfortunately have to live with the stigma of having been sexually penetrated by a close relative for the rest of her life. Her prospects of marriage are seriously reduced and where marriage is possible there is no guarantee that her partner will not raise the issue during their marriage thus exacerbating her ordeal.

18.	But then there are completely innocent victims - the children born to incestuous relationships. These will have to live through ridicules and taunting from peers and others from early childhood well into adulthood.  So what has been the sentencing trend for this crime? 

SENTENCING TREND

19.	In Mitige Neheye v. The State [1994] PNGLR 71, the Supreme Court set down sentencing guidelines for the crime of incest. Some of what the court said there has been overtaken by the amendments to the Code, but much of what it said is still very much appropriate and binding. The court held, among other things, that:

(1)	An act of incest committed without consent amounts to rape, and it is valid to apply the tariff for rape on this type of offence
(2)	In sentencing, a distinction must be drawn between a consensual relationship and one based on force or intimidation.
(3)	The following are matters that should be taken when 	considering sentences on incest:

(a)	The relationship of the parties;
(b)	The age of the victim;
(c)	If force, threats or intimation were involved, and if so, the degree of such force, threat or intimidation;
(d)	Whether it was consensual between adults;
(e)	Over what period of time the incidents (if more than one) occurred;
(f)	The number of times;
(g)	Whether pregnancy ensued by reason of the defendant failing to take contraceptive measures;
(h)	The comparative ages.

(4)	The following are other aggravating factors regardless of the 	age of the victim:
(a)	If  the victim has suffered physically or psychologically from the incest;
(b)	If it continued over a period of time;
(c)	If the incest had been accompanied by perversions abhorrent to the victim;
(d)	If the defendant has committed similar offences against more than one victim.
20.	In that case the appellant had pleaded guilty to 4 counts of incest with his daughter.  He was 39 years of age married with 2 wives and 8 children. The victim was the 4th child from the 2nd wife and was aged 15 years at the time of the offence. The victim became pregnant and from the evidence it appears the father took the victim to a doctor to confirm the pregnancy. The appellant was sentenced to 7 years imprisonment. His appeal against the severity of the sentence was dismissed. The matter was decided when the maximum was life imprisonment.

21.	Both counsel cited a few cases to assist the Court in arriving at an appropriate sentence for you as I said.  I find a couple of these cases to be particularly relevant to your case as they also involved first cousins. 

22.	In The State v Philipo (2014) N5746, the two prisoners there were first cousins who were involved in a continuous incestuous relationship for some 4 years despite admonitions from relatives and community leaders. This resulted in the co-offender (Philipo) getting pregnant. The prisoners pleaded guilty and were sentenced to 4 years, less the period in pre-trial custody. None of the resultant sentence was suspended.

23.	In The State v Sevi Kwetok (2011) N3389, the prisoner, aged about 17 years at the time of the offence, pleaded guilty to committing incest with his 15 year  old biological cousin sister under circumstances that were akin to rape. The prisoner sexually penetrated the victim without her consent and then threatened to kill her if she reported the matter to anyone. The victim had a child from this incestuous union. The prisoner was sentenced to 5 years imprisonment less the period spent in re-trial custody.  None of the resultant sentence was suspended.

24.	An example of a worst case of incest which attracted the maximum penalty is The State v Jimbe (supra) where I sentenced the prisoner to 7 years imprisonment for repeatedly committing incest with his half sister despite the fact that he had previously been convicted and sentenced to a term of imprisonment for incest with the same victim. In fact the prisoner resumed his incestuous relationship with his half sister immediately upon being released from jail for his first offence.

25.	The State v Jonathan Kainamale; CR No. 722 of 2014 (Unnumbered and unreported judgment dated 12th February 2016) is an example of a near worst case of incest between father and biological daughter, which is one of the closest of relationships one can get as far as the crime is concerned. The prisoner had taken his daughter with him from their village on Ferguson Island on a betel nut trading trip to Vakuta Island in Kiriwina. Within a period of just over one week he had sexual relations with his daughter on five occasions for which he was charged. He pleaded guilty to five counts of incest and I sentenced him to a notional total sentence of 25 years. However, I ordered that the sentences be served concurrently so the prisoner effectively got 6 years only. 

CURRENT CASE

(i)	Whether Worst Case Of Incest

26.	Turning now to your case, is this a worst case of incest that should attract the maximum penalty of 7 years imprisonment? You and the complainant are first cousins, hence, you are twice removed from each other. This is not in my opinion a very close relationship as compared to parent/child or biological or step siblings. However, there was an abandonment of moral responsibility and respect for one's own blood relatives on your part, nonetheless. Notwithstanding that, I feel that this is not a worst case of incest. In the circumstances it should attract a starting point of 5 years. What then should be an appropriate head sentence for you?  

(ii)	Mitigating and Aggravating Factors
27.	To arrive at an appropriate sentence for you let me start by considering your mitigating and aggravating factors. First, the mitigating factors:
	1.	You pleaded very early to your charge
	2.	You co-operated with the police 
	3.	You are a first time offender.
	4.	You say that your relationship with the complainant was 			consensual. The State has not satisfactorily negatived that 			assertion, so I will allow you to have the benefit of the doubt 		there and hold that it was. (Saperus Yalibakut v The State 			(2006) SC 890)
	5. 	You also have a medical condition that you suffered while in 		custody for this crime. Having had your spleen removed as a 		result of that accident you now are on lifetime medication to 		prevent infection.

28.	Against you, though, are the following aggravating factors:

1.	The complainant was 17 years old when your relationship started in 2010. And while she may have been over the age of 	consent, she may not have fully appreciated the nature and the consequences of the act that she was consenting to, so that affects the quality of her consent. In any case you were older 	than her, and you may have subtly over-borne or intimidated 	her into consenting. 
	2.	The relationship subsisted for a period of over two years.
	3.	The relationship resulted in the complainant getting pregnant. 			The complainant got pregnant a second time, but I am quite 			prepared to accept your assertion that you had nothing to do 			with the second pregnancy because you were strongly warned 			by the Government officers at Tagula when you were sent there 		after the first incident. (Saperus Yalibakut v The State (supra) 			applied) 
	4.	The offence of incest is very prevalent.

29.	So bearing in mind the principles in Neheye v The State (supra) and your mitigating and aggravating factors, and of course the purpose of sentencing for this type of offence - which is personal and general deterrence in order to protect and promote public morality - I would like to think that an appropriate head sentence for you should be in the range suggested by your counsel. This will also bring your sentence within comparable range with the sentences imposed in the cases cited above - particularly The State v Philipo (supra).

(iii)	Sentence

30.  I therefore impose a head sentence of 4 years. The period that you spent in custody prior to your sentence (9 months and 3 weeks) will be deducted.

31.	Now the last question is whether your resultant sentence should be suspended?

(iv)	Whether To Suspend

32.	I have heard your plea for probation so that you could be released to your village where your family would take care of you. I accept that you will be on life-time medication as a result of your spleen operation.

33.	The power to suspend a sentence is discretionary, but it must be exercised on proper principle. The Supreme Court said in Public Prosecutor v Done Hale (1998) SC 564, said that a suspension may only be considered if it is supported by a favourable Pre-sentence Report, and in particular where the community has expressed a willingness to assist in supervising the offender. In your case, there is unfortunately no such pre-sentence report for you, so I will not exercise my discretion in that regard.

34.	However, in Public Prosecutor v Bruce Tardrew [1986] PNGLR 91 the Supreme Court had earlier pronounced that a suspension may be appropriate where –

	1.	it will promote personal deterrence, reformation or 				rehabilitation of an offender.
	2.	it will promote the repayment or restitution of stolen money or 		goods.
	3.	it would cause an excessive degree of suffering to the offender, 		for example because of his bad physical or mental health. 

35.	The first and third categories in Bruce Tardrew seem appropriate to your case at first glance. However, in the absence of a Pre-sentence Report to assist me, I do not see how a suspension in this case where the relationship is a close one can possibly deter you or reform you. For all we know you might renew your unlawful liaison with the complainant.

36.	And granted, you do have a medical condition that now requires you to be on medication for the rest of your life, however, suspending your sentence and sending you back to the far flung Rossel Island, is like sending you to early retirement to your grave. I would rather that you are incarcerated for the full term of your resultant sentence so that the State can take the responsibility of ensuring that you have a regular supply of those medications, which, given the isolation of your island will be hard to procure from Alotau. 
 
37.	Hence, for the foregoing reasons no part of your sentence will be suspended.

ORDERS

38.	I order that you will serve your resultant sentence at Giligili Corrective Institution. However, given the fact that the Misima Rural Lock-up is in its final stage of renovations, I recommend that you will be relocated to the Misima Rural Lock-up when renovations are completed and the facilities are opened, so that you can stay close to your families at Rossel Island. 
	Orders accordingly
________________________________________________________________
The Public Prosecutor 	: Lawyer for the State
The Public Solicitor 	: Lawyer for the Prisoner