Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Tiun [2001] PGNC 79; N2129 (30 April 2001)

N2129

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 31 OF 2001

THE STATE

-V-

EBES TIUN

KOKOPO: Lenalia, J.
2001: 20, 30 April

CRIMINAL LAW – Incest – Incest between father and daughter – Plea – Sentence – Criminal Code s. 223 (1)(a) – (Ch. No. 262).

CRIMINAL LAW – Incest – Four acts of incest – Once count charged on indictment – Open to prosecution to charge three other charges.

CRIMINAL LAW – Incestuous relationship – Father and daughter – Victim age 12 at time of offence – Compensation – Not alternative punishment: Acting Public Prosecutor –v- Uname Auname [1980] PNGLR 510, considered.

CASE CITED:
The following cases are cited on judgment on sentence.
Acting Public Prosecutor –v- Uname Auname [1980] PNGLR 510
The State –v- William Muma [1995] PNGLR 161
The State –v- Maria Pelta Pung (Yamai) [1995] PNGLR 173
The State -v- Emp Mek [1996] PNGLR 330
The State -v- Aurther Maradi [1998] N.1978
The State -v- David Kiapen Daniel & Polin Warpuai [1999]

Counsel:
L. Rangan, for the State
W. Donald, for the Accused

SENTENCE

30 April, 2001

LENALIA, J. Upon arraignment, the prisoner pleaded guilty to one count of incest with his daughter charging that between 1st and 31st of April back in 1992, at Tavui No. 1 Village, Rabaul, East New Britain Province one Ebes Tiun carnally know Dessie Tiun well knowing the same to be his daughter contrary to s.223 (1)(a) of the Criminal Code.

The prisoner pleaded guilty to the following facts. In the month of April of 1992, at Tavui No.1 Village, while the prosecutrix was about 12 years and whilst doing her Grade 4, the prisoner committed four acts of sexual intercourse with his daughter. On the first instance, the prisoner sent his wife late at night between 10 and 11 pm to do some shopping in a nearby trade store and by which time the prosecutrix was already fast asleep in her bed room.

While the prisoner’s wife was gone, he walked up into his daughter’s bed room, removed her pant away from her buttocks and began stimulating the victim by pushing his fingers in and out of the victim’s vagina. He then removed his laplap and penetrated her. That same night, the victim found that her pants was blood stained as the result of her first act of sexual intercourse. The victim said, it was a very painful experience. When her mother arrived from the store, the victim wanted to inform her however, she decided against it because she knew the prisoner and his wife would certainly have argued that same night over the issue.

On the second act of incest, still in the month of April, the same year, the victim was once more sleeping in her bed room alone, when about midnight, the prisoner left his wife in their bed room, walked across to their daughter’s bed room then woke her up, removed her pants and had sexual intercourse with her. According to the victim, she felt that this time the prisoner released his sperm into her vagina. She did not wish to wake her mother then and went back to sleep until day break when she informed her mother about the news of what her father had done to her.

The prisoner’s wife approached him immediately in the morning and asked him if what the victim told her was true. The prisoner said nothing to his wife’s queries and the facts show that he had two further acts of incest with the victim. On the fourth occasion, whilst he was having sexual intercourse with his daughter, his wife watched them in action went outside and cough then came in again and asked the prisoner what was he doing in the prosecutrix room. The prisoner once more said nothing.

Word was spread to the relatives of the prisoner about his incestuous relationship with his daughter and at the same time, the same news was sent to the relatives and uncles of the complainant at Raburua Village where the mother of the complainant comes from.

After the victim’s uncles learnt about her mist\fortune, she was immediately taken to Raburua Village where she stayed with them for some three years. It was at the instance of the uncles of the victim that, the prisoner was asked to pay them some compensation whereupon the prisoner paid compensation of K400.00 to the victim and immediate relatives.

When asked in allocutus if the prisoner wanted to say anything in relation to the sentence that would be pronounced upon him and before I hear from his lawyer, the prisoner indicated his lawyer was to talk on his behalf.

Councillor Norman Lasiel was called by the defence to give character evidence on behalf of the prisoner, more particularly touching customary compensation done by the prisoner to the victim’s relatives and what was the Tolai community perspective on the offence of incest. Councillor Norman gave evidence that a total of K400.00 compensation was paid by the prisoner in the following proportion.

K200.00 was paid to the prosecutrix

K150.00 paid to the victim’s uncles and relatives of prisoner’s wife.

K50.00 was paid to Rachel, the prisoner’s wife.

According to Norman, these amounts of compensation were made on 12th of December, 1997 some five (5) years after the offences were committed and in presence of Councillor Apelis ToVue from Tavui Village and the Welfare Officer for Kokopo. It is Councillor Norman’s evidence that prior to 12th of December, 1997, the situation between the victim’s uncles and the prisoner was tense, but following payment of compensation, the parties were able to settle their differences and since then the victim was brought back to Tavui No.1 Village.

Mr. Donald for the prisoner submitted the following mitigation. The prisoner would now be about 55 or 56 years old. He is a villager and has no previous convictions. He has pleaded guilty to a serious charge of incest involving the prisoner himself and his daughter. Mr. Donald further submitted that the prisoner instructed him to tell the Court that he is very sorry and is now remorseful and that the court ought to take all these mitigating circumstances on behalf of his client and which certainly I shall take into account when I sentence the prisoner.

The crime of incest is one of the three sexual offence in our Penal Code, the other two being ss.213, 347 for defilement of girls under 12 years of age and rape for which the maximum prescribed penalty is life imprisonment. This Court has the power to sentence the prisoner to a term of years pursuant to s.19 of the Criminal Code. The prescribed maximum penalty of life imprisonment reveals how serious these offences are because the legislature regards such offences with seriousness and those who commit such crimes should be met by penal servitude for life.

By the facts of your case, you had four (4) acts of incest with your daughter. It is evident the legislature wanted to safeguard the family unit as it saw the sacredness and value of relationship between the father and his daughter, the mother and her son, the brother and his sister as a paramount factor binding the nucleus family unit. When I say nucleus family unit, I am referring to a family unit without reference to the common extended family unit maintained in most Papua New Guinea societies.
Instead of the prosecutrix being married in a more respectable manner, she has now been ruined and defiled by her own father and will be looked upon with contempt by her peers. The serious nature of the crime of incest has been emphasised both by the National Supreme Court judges. Brunton, AJ. said in The State -v- Mitige Neheya [1988-89] PNGLR 174 at 177.

"An incestuous act with a child is a circumstances of aggravation of the most severe kind. It is a gross betrayal of the most sacred relationship of father and daughter. When young girls are the victims, it is difficult to imagine that the girls will not be sacred emotionally, perhaps for life."

The Supreme Court upheld the decision of the trial judge in the above appeal where the appellant was sentenced to 7 years and went further to say that in cases where incest was committed with force or intimidation of any sort would be tantamount to rape and it would be valid to apply the sentencing tariff enunciated in John Aubuku –v- The State [1987] PNGLR 267 see also Mitige Neheya –v- The State [1994] PNGLR 71.

On reflection of the facts of this case, no wonder the Supreme Court said that a notable feature of incestuous relationship between father and daughter, mother and son, sister and brother is they often repeat if not detected immediately and one or two acts of incest can be as serious as many because if they are not discouraged they can lead to many: Grayson Andewa -v- The State [1998] SC576 of October 1998. This is exactly what occurred in the instant case. The victim decided not to be further abused by the prisoner so she told her mother. Quite correctly, the mother did not wish to keep the bad news to herself but sounded the warning to all concerned. Had the mother decided otherwise, the result could have been disastrous.

For the State, Mr. Rangan cited the cases of The State -v- Aurther Maradi [1998] N1878 and The State –v- David Kiaplaen and Polin Warpuai Daniel [1999] N. on which Jalina, J. sentenced the three accused to terms of 7,8 and 2 years respectively. The former case being that between the father and daughter while the latter one, between the mother and son. The son was sentenced to 8 years while his mother to 2 years due to the legislative constraints provided for by s.223 (2) of the Criminal Code.

Let the Court elaborate and address the question of compensation as I am of the view that the issue was over-emphasised by the defence. Councillor Norman Lasiel said in his evidence from the witness box that he is of the view that if this Court was to make any orders against the prisoner, it would be double jeopardy. With respect that is not what the law is. In fact both case law and statute establish that any form of customary punishment in terms of compensation may only be taken into account on mitigation because customary punishment is not defined by law but can only be taken into account when determining the penalty to either mitigate or aggravate: Acting Public Prosecutor –v- Uname Aumane [1988] PNGLR 510. I am more particularly interested in the judgment of Kapi, J. (as he then was) at 542 where His Honour said:

"Under s.7 (e) of the Native Customary (Recognition) Act a court may have regard to these matters in arriving at the appropriate sentence. This means that a judge may increase or decrease the sentence depending on whether, custom mitigates or aggravates the offence and may impose the appropriate sentence within the range given by law. In this case the trial judge had only power to impose punishment within the range given by ss. 19 and 309 of the Code. While the trial judge did not err in referring to the willingness of the respondents to pay compensation in terms of pigs, in accordance with custom, he fell into error when he imposed the sentence as a matter of law.

Section 7 (e) of the Act does not enlarge the power of the Court under ss. 19 and 309 of the Code. Section 7 (e) may only operate with the range provided under ss. 19 and 309 of the Code".

In The State -v- Emp Mek [1996] PNGLR 330, Woods, J. held that s.7 (e) of the Native Custom (Recognition) Act does not enlarge the courts powers in terms of s.19 of the Code and the charge that was contained in the indictment presented before His Honour but the court when exercising its sentencing discretion must operate within the range provided by law. I totally conceed with those statements as they do reflect on what might be the true position in the application of customary compensation and it should be applied in determination of an appropriate sentence and whether custom aggravates or mitigates.

In was held in The State –v- William Muma [1995] PNGLR 161. that where young children are victims of crimes including crimes of sexual nature compensation paid to relatives should not be allowed but compensation may only be taken into account on mitigation. This was an unlawful carnal knowledge case whereby the relatives of the accused paid K1,010.00 cash, 3 live pigs valuing at K700.00, K60.00 and K40.00 respectively. Further in The State –v- Maria Pelta Pung (Yamai) [1995] PNGLR 173, Akuram, AJ. (as he then was) held that customary compensation was a liability imposed on an offender by the dictates of custom. That was the case where a co-wife had stabbed to death her co-wife both being married to one husband.

Thus, as a matter of law, this court can only impose a penalty provided for and defined in the Penal Code or any other statutes for that matter. This court although empowered by ss. 2,3 and 4 of the Criminal Code (Compensation) Act of 1991 to order compensation, the same does not correspondingly empower the Courts to impose customary punishment as substitute for an offence defined and prescribed by statute. And despite Sch.2.1 (1) of the Constitution providing for adoption of custom to be applied and enforced, however such application is subject to Sch. 2.1 (3)(b) which provides that an Act of the Parliament may regulate the manner and application of custom. In my view, the Native Custom (Recognition) is envisaged in terms of Sch.2. 1 (1)(b) of the Constitution. Thus customary punishment together with compensation may only be taken into account either to aggravate or mitigate the penalty defined or prescribed by law.

Having said what I have discussed in the foregoing, what is the Tolai community perception of the crime of incest. Quite frankly, the fact that compensation has been paid to the victim and her relatives does not completely exonerate the prisoner from criminal culpability as this court will only take such factors into consideration and determine an appropriate penalty.

Before you are sentenced, the Court has a duty to tell you, you have treated your own daughter as your wife by having uncovered her nakedness which is prohibited by the Code s.223 (1)(a), see also Sch. 2.1 and 2.2 of the Marriage Act Ch. No. 280 you and your daughter with whom you committed incest with are within the "prohibited degrees of consanguinity and affinity" meaning you cannot marry your own daughter which s.223 (1)(a) of the Code abundantly seeks to protect any form of sexual nature. Under s.223 (1)(a) of the Code, Ebes Tiun could be sent to gaol for life imprisonment for having carnally know your daughter. The court has power to sentence you to a lower term than life imprisonment.

In your favour, I have certainly taken into consideration your guilty plea which in law operates as credit in your favour. I have also taken into account you are a first offender with no previous convictions and the fact that you may be coming toward the age of between 50 – 56 years. As well I have taken into account the K400.00 compensation you have paid. The court does not agree with your lawyer however that, you have shown remorse for reasons that you committed this offence in April of 1992, but yet you did not pay compensation until some five (5) years afterwards.

Secondly, it was not at your instance that you paid compensation. If I get the facts correct, it was the uncles of the victim who suggested to you that you should pay compensation. To this Court, the suggestion to pay compensation was not on your own initiative. Thirdly, despite the fact that your news about your incestuous behaviour was made public and despite the fact that such allegations were quite true, when police interviewed you, although you made admissions to them, you said however that the victim was not medically checked. This to the court is not genuine remorse at all.

Having taken all those mitigation in your favour and the aggravating circumstances I have addressed and have considered the seriousness of the crime of incest and the community perception of it, the court has a duty to impose a term of years that with both have the effect of deterring you and the public as well as a reflection of your community concern. I sentence you to a term of 6 years in hard labour. I suspend one (1) year from that sentence and you shall serve the balance of 5 years. Less 5 weeks in custody. Your bail moneys shall be refunded accordingly.

Sentenced accordingly.
_____________________________________________________________________
Lawyer for Accused : Namaliu Lawyers
Lawyer for the State : The Public Prosecutor