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State v Saitus [2004] PNGLR 18 (22 September 2004)

NATIONAL COURT OF JUSTICE

THE STATE

V

MICHAEL SAITUS

KOKOPO: LENALIA J

20 & 22 September 2004

CRIMINAL LAW – Incest – Plea – Sentencing guidelines – Matters for consideration –
SENTENCE – Criminal Code s.223, s.223, Criminal Code (Sexual Offences and Crimes Against Children) Act.

Facts

The accused pleaded guilty to 2 counts of incestuous acts with his biological first born daughter Joan Saitus, thereby contravening s.223 of the Criminal Code.

Held

1. Although the indictment contains two counts of incest, the facts of the instant case are similar to the case of The State v James General Wartovo where the accused in the present case persistently committed incest with his daughter until she got pregnant.

2. Taking into account the accused guilty plea as a mitigating factor, and the seriousness of the crime of incest, where the victim in this case was abused for a long time, she even got pregnant and the breach of trust relationship between the accused and the victim, the Court sentenced the accused to 10 years imprisonment in hard labour for Count 1. See The State v Mitige Neheya [1988-89] PNGLR 174. On Count 2, the accused is sentenced to 5 years imprisonment in hard labour to be served consecutively upon Count 1 making a total of 15 years. The time spent in custody can be deducted from that total.

3. The Court orders that 3 years shall be suspended on condition that after he has served the balance he should enter into a recognizance to keep the peace and be of good behavour for 2 years.

4. The accused's bail money shall be refunded to him.

Papua New Guinea cases cited

Dorina Inara v The State SC688.
The State v Amos Audada N2454 (13.5.03).
The State v James General Wartovo CR No. 1648 of 2004.
The State v Mitige Neheya [1988-89] PNGLR 174.

Counsel

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

22 September 2004

Lenalia j. The accused pleaded guilty to 2 counts of incestuous acts with his biological first born daughter Joan Saitus, thereby contravening s.223 of the Criminal Code.
The beginning of Joan's ordeal was as follows. In 2002 when the victim was doing her Grade 9 at Kokopo High School, she fell ill one day and decided to stay back home in their home at Gelegele here in Kokopo. Because she was sick the accused stayed with her whilst others were gone to school, their mother also went away to their grand mother's house.

It happened that because she was sick, she was sleeping in her father and mother's bedroom. The accused came to her and first sat beside her and started to touch her body from outside the bed sheet. He laid down beside her and lifted the bed sheet up and laid right beside the victim. Thereafter, the accused started to fondle her body including her breast and vagina. On that occasion, the accused told the victim that he always looked at her lustfully and he liked her to have sex with him. He got on top the victim and laid on her for sometime but did nor have sex.

When the victim's mother (Annie Saitus) came back, the victim told her forthwith about what the accused had done to her. The accused continued to sexually abuse the victim by sexual touching and at times he would ask her to stimulate him by the victim holding his penis.

These activities continued until the pair actually had sex on the corridor of their house for the first time. Sexual intercourse continued from there until August in 2003.

Although the indictment contains two counts of incest, the facts of the instant case are similar to the case of The State v James General Wartovo where the accused in the present case persistently committed incest with his daughter until she got pregnant.

A report done by somebody at the Papua New Guinea Family Health Association says that the victim's pregnancy test was found to be positive. That confirms what the victim said in her statement saying she had missed her monthly period for three months.

A number of aggravations are present in the circumstances of the instant case. The charge of incest as all other sexual offences involved a breach of the trust that children have towards their fathers and mothers: The State v Mitige Neheya [1988-89] PNGLR 174. Mothers and fathers alike are responsible for the up-bringing of their children providing necessities such as food, clothing, shelter and education.

Then, there was this concern that, sex continued for a long time. It was not a case of one act of sex only. The accused started to sexually abuse his daughter since 2001. The accused had cleverly carved out two holes in the partition separating the boys room and the room where the victim was sleeping. The reason the accused did that was because, he would look through the holes to see the victim changing after bathing and perhaps to see her completely naked.

For the last few years, the crime of incest has increased in great volume. Nobody would tell the reasons why this heinous crime is eating away the guts of some people who would like to treat their daughters or sons the way they have done.

But such behaviour cannot be taken lightly. The reason for this is that most incest cases that come to the Courts, they have been punished severally. In The State v Amos Audada N2454 (13.5.03), that was one incestuous act only, the accused there was sentenced to 10 years. Some other cases do reflect the sentencing pattern taken by this Court. see Dori Inara v The State SC6888 (decision of 10.7.02). The sentence of 12 years was reduced to 10 years. see also The State v James General Wartovo CR No. 1648/02 (15.9.04).

The next aggravation is that the victim was made pregnant by none other than the father himself. You committed this crime upon your daughter and the baby she will carry around and look after, instead of it being your bubu (granny), you are the father of it. This in my view does not make sense.

Taking into account the accused guilty plea as a mitigating factor, and the seriousness of the crime of incest, where the victim in this case was abused for a long time, she even got pregnant and the breach of trust relationship between the accused and the victim, the Court sentence the accused to 10 years imprisonment in hard labour for Count 1. On Count 2, the accused is sentenced to 5 years imprisonment in hard labour to be served consecutively upon Count 1 making a total of 15 years. The time spent in custody can be deducted from that total.

The Court orders that 3 years shall be suspended on condition that after he has served the balance he shall enter into a recognizance to keep the peace and be of good behavour for 2 years.

His bail money shall be refunded to him.

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