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State v Melki [2002] PNGLR 34 (19 December 2002)

NATIONAL COURT OF JUSTICE

THE STATE

V

JANE WARKIA MELKI

KOKOPO: LENALIA J

13 and 19 December 2002

Facts

The accused stands charged that between 16 January and 15 March, 2002, being a person above the age of 18 years, permitted her son Donald David (Jr) being her first born son to have carnal knowledge of her, an offence contrary to s 224 (1)(c) of the Criminal Code.

Held

1. Under s 224 (1)(c) of the Criminal Code, the maximum penalty you could be sentenced to is three years. I adopt comments made by my brother Jalina, J. in The State v David Kiaplaen and Polin Warpuai Daniel (1999) N1878, where his Honour commented about the great imbalance in sentencing females for the offence of incest. Under s223, a male offender having incest with his daughter, sister or mother is subjected to a life imprisonment. Under s224, however, a woman above the age of 18 years who commits the same offence can only be sentenced to the maximum of three years.

2. What the prisoner did is repugnant to the general principles of humanity which act must not be tolerated in any community and due to the prevalence of incest cases in this Province the warning must be sent out to the general public that for a mother to have sex with her son, or the father with his daughter and the brother with his sister is total disgrace to our social standard of decency, it offends against first our statutes your custom and anybody's custom in Papua New Guinea for that matter, and against religion.

3. I thought for a while that the Court should send you to prison for the maximum of three years. But I thought against that as it would be a big jump since the case of The State v David Kiaplaen and Polin Warpuai Daniel (supra). In the circumstances of your case, you are sentence to two years. The time spent in custody shall be deducted.

Papua New Guinea cases cited

The State v David Kiaplaen and Polin Warpuai Daniel (1999) N1878,
The State v Donald David Junior [2003] PNGLR 177

Counsel

L Rangan, for the State.
B Sumsuma, for the accused.

19 December 2002

Lenalia j. The accused stands charged that between 16 January and 15 March 2002, being a person above the age of 18 years permitted her son Donald David (Jr) being her first born son to have carnal knowledge of her, an offence contrary to s 224 (1)(c) of the Criminal Code.

The facts to which the prisoner pleaded guilty to are much similar to the facts in your son's case, (The State v Donald David Junior (supra p. 177) whom the Court sentenced to 9 years.

In early January this year, you heard that your son was with his father's relatives in Sikut near Warangoi and you in consultation with your current husband Mr. Robin Woiwoi hired a vehicle from your block in Mandress to pick up your son so he could spend time with you being the natural mother.

Your son, whom you became the victim of, is the first son born to you and your former husband David Donald Senior. Your former husband deserted you in 1988 or thereabout and left for Tabubil in the Western Province to take up employment in the mines. Your former husband got married to a new wife in Tabubil, but he also took custodial responsibility of your firstborn son and three other children of your marriage.

The facts show that, since he left you in 1988, you never saw your children again until you and your current husband brought Donald David from Kabakaul to Mandress where a relationship developed between you and your son between the time period stated on the indictment. During the time he was with you, you become the victim of your own son having sexual intercourse with him several times.

Anyone of sober, tranquil or sane understanding would have thought that you being the mother would have been a little wiser than your son to resist the temptation suggested to you that the two of you should have sex. But instead of being vigilant you gave in to the temptation. It was not wise to submit to a kid who is your own son.

The two of you acted as though you were married. Your son became so possessive of you. What is called "sexual intercourse" is meant to be an hidden action between partners who love each other. To you and your son it became like a public show. When community leader of Mandress, Likius Wartovo, came in one night wanting to have a talk with Mr. Woiwoi and you, instead of having a talk, he had a look at you lying naked on the bed under your house with your son lying on top of you.

Even your current husband couldn't believe his ears when he overheard you saying to your son that you felt your son in you as you used to feel his daddy.

The crime of incest is very serious. It offends against our accepted standard and decency and our social norms and the moral principles. For a mother to have sex with her son is a total disgrace to your family members and your community.

Under s 224 (1)(c) of the Criminal Code, the maximum penalty you could be sentenced to is three years. I adopt comments made by my brother Jalina, J. in The State v David Kiaplaen and Polin Warpuai Daniel (1999) N 1878, where his Honour commented about the great imbalance in sentencing females for the offence of incest. Under s 223, a male offender having incest with his daughter, sister or mother is subjected to a life imprisonment. However under s 224 a woman above the age of 18 years who commits the same offence can only be sentenced to the maximum of three years.

There have been recent amendments done on several sexual offences under the Criminal Code with the effect that both actors in incest case must be equally punished. I am surprise that the lawyers did not raise this to the Court, and I don't even know if those provisions have been effected. If they were effected, I would have been told by both counsels.

What the prisoner did is repugnant to the general principles of humanity which act must not be tolerated in any community and due to the prevalency of incest cases in this Province the warning must be sent out to the general public that for a mother to have sex with her son, or the father with his daughter and the brother with his sister is total disgrace to our social standard of decency, it offends against first, our statutes, your custom and anybody's custom in Papua New Guinea for that matter, and against religion.

The medical report done on you for psychological assessment and evaluation tendered by consent shows that you are socially competent in maintaining relationship with the people around you and what you did has been attributed to the history of your marital break down.

I accept that report on the basis that you are mentally and socially sound. I do not however accept some suggestion in that evaluation that what you did was due to the marital break down and that your son could take the place of the father which in my view totally nonsensical.

I thought for a while that the Court should send you to prison for the maximum of three years. But I thought against that as it would be a big jump since the case of The State v David Kiaplaen and Polin Warpuai Daniel (supra). In the circumstances of your case, you are sentence to two years. The time spent in custody shall be deducted.

Lawyer for the defendant: The Public Prosecutor.
Lawyer for the accused: Sumsuma Lawyers.