N6542
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS.835 &836 of 2016

THE STATE

V

OSCAR LAWRENCE &PATRICIA JOHN

Kokopo: Lenalia, J.
2016: 21st, 27th July &3rdAugust

CRIMINAL LAW – Incest– Sexual penetration of blood relative – Incest 1st cousin sister and brother – Offence committed over a period time – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.s.223 (1)(2).   

CRIMINAL LAW – Incest aggravations – Breach of trust – Punitive and deterrent sentence called for – Worse type case – Sexual penetration persisted for over 2 years – Sentence of 5 years appropriate.

Cases cited.
Grayson Andowa v The State (1998) SC 576
Junias Tolom & Dorish Voa (18.2.2009) Cr. No. 24 of 2009
The State v Mitige Neheya [1988-89] PNGLR 174
The State v Donald Kemimou (2001) N2299
The State v Lawrence Kava (13.3.06) CR.N0.1116 of 2004
The State v Harry Wara (16.6.07) CR.No.413 of 2007 &The State v Miriam Warlil (15.6.07) CR.No.414 of 2007

Counsel:	
Mr. L. J. Rangan, for the State
Ms. J. M. Ainui, for the Accused

3rd August, 2016

1.	LENALIA J: Oscar Lawrence & Patricia John come from Malakuna No.4 Ward, Kokopo District E. N. B. Province. The two offenders pleaded guilty to one count of incest contrary to s.223 (1) (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The offence was committed at their village between 1st January 2014 and 31st December 2015. The crime of incest is defined in the above provision 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 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.”

Facts in Brief

2. 	The two offenders both come from Malakuna No.4 village, Kokopo District, East New Britain Province. Agreed facts are that between January 2014 and 31st December 2015, the two offenders engaged themselves in sexual relationship for a long period of time. When the wife of the male offender and some of their relatives suspected such relationship, they wanted to confirm if the two were actually having such relationship. When it became clear that the two were having sexual relationship, the matter was reported to the Sexual Offences Squad in Kokopo. 

3. 	When the two were interviewed, in answer to questions 17 to 20, offender Oscar admitted he had a sexual relationship with his niece. With Patricia John she admitted in questions 16 to 20, she admitted to having sexual relationship with her uncle the male offender. 

Relationship

4. 	The female offender is the daughter of the male prisoner’s biological sister. She addresses the prisoner Oscar as an uncle and likewise, she is Oscar’s niece. 

Pre-Sentence & Means-Assessment Reports

5. 	Only one person was contacted in the pre-sentence report. She is Mrs. Pelis Lawrence. She is the mother of the female offender and the biological sister of the male prisoner. She expressed her family and related family members about the shock they received when the news came out that, the male offender and his female niece were having a sexual affair. She said, at the present time, all family members go around with shame and embarrassment in the community.

6. 	She expressed her concern that as soon as the two are released, they must settle quickly as the two prisoners are close blood relatives. 

Antecedents

7.	 Oscar Lawrence Uragap- 31years old,
Did Grade 1- 6 at Takabur Primary School,
Highest education reached, attended Raval Vocational Centre and graduated in 2008,
He is employed as casual worker with Zion Plumbing,  
Married with 3 children,
Has no previous conviction. 

8. 	Patricia John – 21 years old.
Educated up to Grade 4 at Takabur Primary School;
She is in custody at C. S at Keravat,  
She is nursing one child at Keravat Correctional Services,
She is married and not employed

Allocutus
9. 	Oscar Lawrence – “I say sorry for what I did. I apologize to family members and to the Court. I ask the Court to place me on probation.”

10. 	Patricia John –“I say sorry to the court for what I did. I say sorry to my family. I ask for mercy if the court can put me on probation.”

Addresses on Sentence

11.	 Ms. Ainui, counsel for the two prisoners submitted the following mitigations:
The offenders pleaded guilty,	
They forthrightly admitted the crime,
Admitted in the record of interview they committed incest,
Previous good characters,
Expression of remorse,
Saving the court’s time and money

12.	 Counsel submitted that, the case involves close blood relatives and the court considers sentence in light of comments in the pre-sentence and means assessment reports. Both counsels referred to the case of The State v Jenice Lucas and Sakias Tobing (1.6.2016) Cr. No. 505 & 507 of 2016 where this court sentenced the two offenders for incest to terms of 5 years each. 

13. 	For the State, Mr. Rangan submitted on the seriousness of the crime of incest as it was committed with breach of trust between the two of them. Counsel submitted that, apart from custodial penalties the court should consider compensation to settle the immediate family members of the two offenders. Counsel raised concern with distribution of any compensation if ordered. 

Crime of Incest

14. 	The crime of incest has always been serious. The law governs relationship of all human beings. Until 10th April 2003 when the current Criminal Code (Sexual offences and Crimes Against Children) Act came into operation, incest is one of those crimes which the previous provision prescribed life imprisonment. Since the coming of operation of amendments, the maximum penalty reduced to 7 years. 

15. 	Agreed facts show that, there was existing relationship of trust between the two offenders. The male offender is the last born biological brother of the mother of the female prisoner. They address each other as uncle and niece. The amended provisions of the Code safeguards relationships of family members by defining such relationships in s.6A (2) and s.347A of the Amended provisions all give comprehensive definitions of relationships of persons connected by custom and work responsibility. The case of The State v Mitige Neheya [1988-89] PNGLR 174 has often been referred to where the Court there said, incest is an act of “gross betrayal of the most sacred relationship”. 

16. 	In recent years there is a sharp increase in the abuse of the sacred relationships between the class of persons defined under ss.6A and ss.223 (2) of the Act. The penalty for incest was changed from life to seven years. This court cannot tell why, but the parliament decided so. It could be because, such offence involve close blood relationships. 

17. 	The indictment pleads that the incestuous relationship of the two offenders commenced in January 2014 and continued until December 2015 when they were found out. If they were not found out, the relationship could have continued. This is real life experience and that is why the Supreme Court commented in Grayson Andowa v The State(1998) SC 576 that one act of incest usually repeats itself. In the above case, the Court there 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."

18. 	The impact of the crime that you two committed had caused insecurity in your home environment. As Mrs. Pelis Lawrence said, what you did had caused great shame to her and the affected family members. Expressing concern over this kind of relationship and the effects of incest and of course other sexual crimes committed with breach of trust, Justice Kandakasi expressed the following comments on the case of The State v James Donald Keimou(2001) N 2295: 

"... 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.”

19. 	The instant case is similar to the case of Junias Tolom & Dorish Voa (18.2.2009) Cr. No. 24 of 2009, a case involving an uncle and his niece. The niece was the daughter of the elder sister of male offender (Junias Tolom). Sexual relationship between the two commenced in March 2007 and continued until October 2008 when they were found out. The offenders in that case were charged with three counts of incest each. They pleaded guilty, this Court sentenced the two to 4 years consecutive sentence making a total of 12 years on each offender. Three (3) years were suspended and they each served the remaining balance of 9 years each. 

20. 	The above comments were made in relation to the cases of a father and his two daughters. In the instant case, the two prisoners appear to be youths just to be about adults now. The two offenders must realize that you can be sentenced to the maximum of 7 years. The court considers the fact that you two abused your position of trust which the law and the custom of the Tolai community places on each of you to respect each because your relationships are sacred. 

21. 	The court has considered what you told the court in your last say. I have also considered counsels’ submission and the terms of the pre-sentence and means-assessment reports.  I consider that the two offenders should be sentence to terms of imprisonment partially suspended with compensation orders. The court makes the following orders.
 
1.	They are each sentenced to 3 years imprisonment. The Court suspends 1 year from the head sentence on condition that after serving 2 years, you shall keep the peace for 2 years from the date of your release. You shall each serve the balance of 2 years.
2.	Prisoner Oscar Lawrence after serving the balance, you are ordered to pay an amount of K500.00 cash together with 50 fathoms of Tolai shell money to the parents, of the victim. 
3.	Patricia John shall also pay a sum of K500.00 compensation together with 50 fathoms shell money to the parents of the male actor.  
4.	You both are given 3 months to pay the compensation orders.
5.	Mr. David Paul Simiriong the author of the pre-sentence and means assessment report shall supervise payment of these compensation orders.
6.	The court orders that the Tolai shell money shall be in the standard sale value in the length of one fathom. 
7.	Because, the two are uncle and niece, compensation shall be paid to the Ward Member and the Village Committees who shall distribute such compensation to affected members of the community. 
8.	In the event that the parents of the two offenders cannot meet the time set by Order 4 of this Order, the Probation Officer shall report back to this Court for endorsement.  
9.	Bail monies of the first offender are now converted into part payment of the compensation order.
_______________________________________________________________
Public Prosecutor	:	Lawyer for the State
The Public Solicitor:	Lawyer for the Accused.