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State v Pairie [2004] PGNC 244; N2519 (4 March 2004)

N2519

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR: NO. 1154 OF 2003

THE STATE

-V-

PATRICK PAIRIE

KOKOPO: Lenalia, J.
2004: 2, 4 Mar.

CRIMINAL LAW – Incest – Pleas of guilty – Sentencing principles – Tariffs as guidelines – Criminal Code, s. 223 (1), Ch. No. 262.

CRIMINAL LAW – Incest – Sentence – Accused aged, 47 – Victim aged 15 years – Pregnancy resulting – Father and daughter – Factors for consideration – Sentence.

CASES CITED:
The following cases are cited.
The State -v- Mitige Neheya [1988-89] PNGLR 174.

COUNSELS:
L. Rangan, for the State
M. Peter, for the Accused

4th March 2004

LENALIA, J. The accused pleaded guilty to two counts of incest with his biological daughter Maryanne Sintemil Pairie. The two charges date back to the months of February 2002 and January 2003. Both offences were committed at Sampun village in the Pomio District on this Province. The crime of incest is contrary to s. 223 (1) of the Criminal Code.

The prisoner pleaded guilty to the following facts stated by various witnesses including the victim herself. The victim is the ninth born in a family of eleven children. The family come from East Pomio but are currently understood to be residing at Londip Plantation in the Sulka area within the Bitapaka Local Level Government area. Beginning in 2002, the victim could not go to school because the accused had not paid for her school fees so she stayed at home.

In the village, the family occupy a house with the description in the facts consistent with what the accused said on allocutus. Despite his large family, they live in the house with only two rooms. At the time of those offences, the victim says, one night the accused came into their house and knocked at the room where his wife, the victim and a few other young children were sleeping. As soon as the accused entered the room, he lowered the lamp so that there was not much light to illuminate the room. The other room is occupied by other male children and, the accused.

The accused came into the room at the time his wife was saying her rosary prayer. Not wishing to disturb her children sleeping, she stopped praying and walked cross the room to the door and opened for the prisoner. She silently went back to her bad sat down quietly and continued her prayers.

As soon as the accused was in the room, he walked toward the victim then held a pocket-knife against her neck, he therefore forcefully penetrated her right on the full view of his wife. The prisoner’s wife, Maria Pairie could not do anything nor could she shout for assistance as she was also threatened to be killed if she express her dissent or if his wife and the victim told anybody.

It is obvious from the statements of both the mother and the victim that, whenever Maria wanted to talk to the prisoner about this problem, the accused would threaten to stone his wife and both persons say that the accused treated his daughter like his wife. Not only that he had carnal knowledge of the victim on those two occasions, but whenever the prisoner wanted sex, he would go and have it with his daughter. The situation was such that continued incestuous relationship resulted in the victim being pregnant. The child would be born by now.

In his allocutus, the prisoner said, he was tempted as sin presented itself. He blamed the victim for sleeping carelessly by exposing her private parts when she was fast asleep. The prisoner even said, when he woke the victim up to tell her to sleep properly and cover her nakedness, the victim then invited him to have sex with her. Part of the blame goes to the structure, which the family occupied. The prisoner said, there was no room for him and his wife to have privacy. I shall return to this later.

I had the benefit of hearing counsels’ addresses on sentence. Mr. Peter of counsel for the accused submitted that the Court should take into account the accused guilty pleas and his previous good character. Mr. Rangan of counsel for the State submitted that this case is even worse than that of The State -v- Eddie Sam, CR. No. 100 of 2001 on which this Court sentenced the accused to a total of 17 years cumulative and concurrent sentences for 9 counts of incestuous relationship with his daughter. He was sentence on 9th of February this year.

Incest and sexual offences committed upon young persons by a father, mother or brother and sister is a breach of trust and must be treated very seriously by the Courts. The circumstances under which the two crimes were committed were such that, the accused repeatedly had sexual intercourse with the victim whom he well knew to be his biological daughter. There are a number of aggravating factors involved in your case. What you did to your daughter is a breach of trust. You are the father of your own children and you are expected to care for them. You are to provide shelter, clothing, food, water and other necessities including your protection and care. What you did is a betrayal to the victim, her mother and your other ten children. The State -v- Mitige Neheya [1988-89] PNGLR 174.

The next consideration is the victim was only 15 years by the time you sexually molested her. She was quite young by then and according to the case cited earlier, any acts of sexual intercourse with a minor, is an aggravation. This is the reason why sexual intercourse with the age limited by legislation the element of consent is irrelevant. Assuming that the victim in the instant case consented to the accused to have sex with her as the accused said in allocutus is of no value and no relevance at all although it may be taken into account on sentence.

The next aggravation is the victim in the instant case got pregnant. The sad circumstances under which the child of the victim will bring about is that in the community, the child will not be respected and will be treated with contempt because, he or she was born out of an incestuous relationship. On the part of the victim, she might be lucky to marry a husband or otherwise she would be treated with contempt as well. Nobody will want to look after an incestuous child. The usual cores of the wellbeing, welfare and up-bringing of that child will be an issue and burden to the innocent victim.

The prisoner himself told the Court by his own mouth that he had been a church worker of the Roman Catholic Church for some 31 years. He was in fact a Catechist. Being a Catechist in the Church of God should have made you a little wiser than you were. To make things worst, sexual intercourse is supposed to be an act of the bond of love between two persons. Instead of having sex with your wife who was by then awoke on that first instance you acted like an animal by penetrating your daughter in front of your wife who was closely watching you having sex with your daughter.

Since the case of The Sate -v- Ebes Tiun N3029 of 2001, in this Province before me sentences for incest has had some slight increases. Ebes was sentenced to 6 years with one year suspended. In The State -v- Robert Makiso CR. No. 631/2003 a case in Kavieng, this Court sentenced Robert to 8 years. Before that case in The State -v- Francis Liro (unreported) of May 1999, Jalina, J. sentenced the accused to 13 years for committing incest with his two daughters who were students at Madina High School in Kavieng. The Supreme Court reduced a sentence of 12 years to 10 years for two counts of incest between the appellant and his daughter for grounds of severity in Dori Inara -v- The State SC688.

Before the Court sentenced you, I have a duty to tell you that, you treated your daughter as though she was your wife. You repeatedly penetrated her contrary to the terms of 233 (1) (a) of the Code. In Papua New Guinea, the incidence of sexual crimes committed against women is on the increase. The upward trend in sexual crimes is unprecedented over the very recent past. So many of those crimes are despicable and an affront to the dignity of individual victims, many of whom, are very young as in the case of the victim in the instant case. As in the case of this prisoner, many of these crimes in sexual nature are often characterised by force. Sexual abuse of children is on the rise in this Province and elsewhere and not only by ordinary men, but even by fathers and mothers doing that which is unseeing against their own biological daughters and sons.

You now place the blame on the structure, which you and your family occupied. The facts show that you had your room with you male children while and the other was shared by your wife and grown up female children. You have a large family, 11 children, you and your wife brings that number up to 13 persons in the family. As to how many children a couple decides to have is their business and nobody is going to talk to them about it. But the point I wish to make is whose responsibility was it to make sure the house was big enough for you and your family to occupy. If it was yours, then you cannot blame anybody.

Not only that you had breached the trust between you and your daughter because you are her father, but you being a church worker and a catechist for some 31 years, a man with some standing in the community, the higher up the person goes in his standing and esteem, the higher the responsibility and accountability become to take care and give protection to your children or anyone’s children in the community.

Certainly Patrick, this Court has taken into account your guilty pleas to these two serious crimes. You are charged under the old Criminal Code provisions and the law says that you can be sent to gaol for life imprisonment. If the Court was minded to sentence you to life, it could but this morning the Court will not do that as I consider a number of factors in your favour such as your plea, your previous good character and you have a lot of children to care for. But on the other side, the Court take into account the seriousness of the two crimes you committed against your own daughter. It is against human nature to have incestuous relationship with a daughter or son. You used force against your daughter to do what you did to her then issued threats to her and your wife to cover up your animalistic toward the victim and her mother. The sentence of this Court is that on Count 1, you are sentenced to 9 years imprisonment. For Count 2, you are sentence to 8 years in hard labour. These two sentences shall be served consecutively upon each other making a total of 17 years. The Court suspends 3 years from the sentence. The time spent in custody shall be deducted. He shall serve the balance. On the suspended portion, after serving, he shall enter into a Good Behaviour Bond for 2 years.
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Lawyer for the State : The Public Prosecutor

Lawyer for the Accused : The Public Solicitor