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State v David (Jnr) [2002] PNGLR 32 (12 December 2002)

NATIONAL COURT OF JUSTICE

THE STATE

V

DONALD DAVID JUNIOR

KOKOPO: LENALIA J

4 and 12 December 2002

CRIMINAL LAW — Incest — Plea — Factors for consideration—Sentence — Criminal Code (Ch 262) s 223(1).

Facts

The prisoner pleaded guilty to a charge of incest with his mother contrary to s 223 (1)(c) of the Criminal Code.

Held

1. Sex can only be accepted and practised between a certain degree of relationship accepted by law and our social norms. It is not normal for a son to have sex with the mother, nor the mother with her son as in your case and in other cases of incestuous acts between the father and daughter and even between the brother and sister.

2. Both the National and Supreme Courts have sounded very clear warnings that sex between father and daughter, mother and son or brother and sister is very serious: The State v Mitige Neheya [1988-89] PNGLR 174 see also Grayon Andowa v The State (1988) SC576. Because of the serious nature of incest, the Supreme Court in Mitige Neheya v The State [1994] PNGLR 71 suggested that sentencing guidelines in rape cases should be applicable.

Papua New Guinea cases cited

Grayson Andowa v The State (1998) SC576.
The State v Mitige Neheya [1988–89] PNGLR 174.
The State v MKB [1976] PNGLR 197.
The State v Peter Kaudik [1987] PNGLR 201.

Counsel

L Rangan, for the State.
M Peter, for the accused.

12 December 2002

Lenalia j. The prisoner pleaded guilty to a charge of incest with his mother contrary to s 223 (1)(c) of the Criminal Code.

A bit of family back ground history should help to understand the full circumstances of this case.

The accused and the victim are mother and son. The victim was formerly married to Donald David (Senior) and their first-born son is the prisoner. From her former marriage she have four children who are all grown up by now.

The former husband deserted the victim (Jane Melki Warkia) sometime in 1988 and took up employment in Tabubil leaving Jane Melki Warkia alone and the former husband took control of all the four children and reared them at Tabubil, Western Province. From 1988, up to the time the offence was committed the prisoner was with the father in Tabubil.

The accused came to East new Britain in January 2002 to spend sometime with the relatives of his natural father at Sikut in Warangoi in the Gazelle. Having heard of the accused's arrival, it was a natural thing for the victim to ask her current husband, Mr. Robin Woiwoi, who got married to her in 1988, soon after her former husband deserted her, to bring the prisoner to their home in Mandress.

Mr. Woiwoi hired a vehicle from Mandress to Sikut to look for the accused and after looking for him they could not find him. On their way back, they located the accused at Kabakaul and took him to Mandress. The next day, Mr. Woiwoi who is now the stepfather had to hire another vehicle to pick up the accused's belongings from Sikut.

It is the State's allegation that between 16 January and 15 March, 2002 at Mandress, the accused on several occasions carnally knew Jane Warkia Melki whom he knew to be his mother. Such behaviour is, prohibited by law, s 223 (1)(a).

When the accused came into the house of his stepfather after some few days, his behaviour changed. He was always seen by his stepfather and his grand mother to be sitting very close to his mother. At times, he would fondle his mother's breast and they would be seen sleeping together. At other times he would be on top his mother's laps and thighs. They were seen to sleep together in one bed and even used one bed sheet to cover themselves together.

According to the stepfather and grandmother of the accused, such behaviour arose suspicion not only in the family home but, with the neighbouring community.

When the accused started the incestuous relationship with his mother, he was so possessive of the victim. He would treat his mother as his wife, not wanting her to go anywhere without his company. Most times the accused would get drunk.

One night, the stepfather walking up the stairs to his room overheard the accused and her mother having sex and talking sexually during which the accused asked his mother "mummy do you feel me like daddy" and the mother replied by saying "you feel like daddy". Mr. Woiwoi, could not believe his ears.

At another night during the month of February, at about between 9 and 10 pm, Likius Wartovo a self-employed and block holder wanted to pay a visit to Mr. Robin Woiwoi and the family and stood a distance away saw the family store's door wide open. He became suspicious thinking there may have been rascals.

He came closer and heard some noises and talking from under the accused stepfather's house. He did not make any noise but when he look closely, he saw that the victim was lying on the bed naked with the accused on top of her having sexual intercourse.

The only mitigation the Court can take in favour of the accused is that he pleaded guilty and he is a first offender. These would in my view fade away quite significantly due to the serious nature of this crime. The offence of incest is very serious.

To start with, the law regards incest with great concern so much so that the prescribed penalty is life imprisonment for a man. The provision under which the accused is charged in my view holds the fabrics of our society together tieing the nuclear family together so that there is family solidarity. The true rationale behind criminal law is to enforce our moral values and beliefs and that sentences given to offenders must reflect our moral values and beliefs and the public abhorrence: The State v MKB [1976] PNGLR 197.

The community have a right to express their dislike, concern and abhorrence on this type of behaviour. Incestuous relationship erodes our moral values and is seen by the people as very shameful. Community leader, Likius Wartovo expressed his habhorence thus in the following manner.

"After encountering the mother and her son engaging in these acts of sex without any shame on the two occasions, I can just say that it is the most unimaginable act anybody can---, when they are supposed to be the same blood. This is a case of Junior Donald David having sex with his own mother and his own mother knowingly permitting him to put his penis into her knowing that it is the same part of her body that her son came out from during his birth" (see page 3 of Likius Wartovo's statement).

On sentence, I have before me the pre-sentence report furnished to this Court by our local based Community Correction & Rehabilitation Officer Mrs. Suzie Vuvut covering a wide range of pre-sentence report and factual background information on the upbringing of the accused. The pre-sentence report confirms the accused coming from a family break-up environment and that the stepmother at Tabubil often mistreats him, his two brothers and a sister. The accused in fact is the first born of the victim.

The pre-sentence report suggest this case is not suitable for probation and I totally agree with such conclusion due to the tremendous impact caused to the community at Mandress and the public perception of this crime. The Court must punish by incarceration.

The crime of incest is very serious in our societies. Not only is it serious because the law prescribes life imprisonment but it offends against the accepted standard of decency and the social norms and our moral values and principles and our Christian doctrines. Sex can only be accepted and practised between a certain degree of relationship accepted by law and our social norms. It is not normal for a son to have sex with the mother, nor the mother with her son as in your case and in other cases incestuous acts between the father and daughter and even between the brother and sister.

Both the National and Supreme Courts have sounded very clear warnings that sex between father and daughter, mother and son or brother and sister is very serious: The State v Mitige Neheya [1988-89] PNGLR. 174 see also Grayon Andowa v The State (1988) SC. No. 576. Because of the serious nature of incest, the Supreme Court in Mitige Neheya v The State [1994] PNGLR. 71 suggested that sentencing guidelines in rape cases should be applicable.

Incest involves a breach of trust between parents and their children. You and your mother severed the trust and betrayed the mutual trust that the smallest family unit being a nucleus family has. In many instances, such relationship causes enmity, anger and abhorrence between relatives. You have ruined your own house, your mother and brothers and sisters and your uncles and aunties. What you did is a big shame in your community.

You realise that you could be sent to jail for life imprisonment but the law in its own wisdom provides a leeway by vesting in this Court the sentencing discretion pursuant to s 19 of the Criminal Code to sentence offenders to lesser sentences on this crime.You are a very young men but you have got yourself involved in this very serious crime with your own mother. I certainly have taken into account your guilty plea as mitigation in your favour. A guilty plea in a very serious charge is genuine credit: The State v Peter Kaudik [1987] PNGLR. 201. However given the serious nature of the crime you committed, the sentence of this Court is nine (9) years imprisonment in hard labour. The time spent in custody shall be deducted.

Lawyer for the State: The Public Prosecutor.
Lawyer for the accused: The Public Solicitor.