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State v Torona [2007] PGNC 183; N4970 (18 September 2007)

N4970

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 875 0F 2007

THE STATE

V

RAPHAEL TORONA

Buka: Cannings J
2007: 5, 18 September

CRIMINAL LAW – sentence – incest – Criminal Code, Section 223 – offender had sex with his daughter, making her pregnant – guilty plea – sentence of 5 years.

A man pleaded guilty to one count of incest. He had sex with his natural born daughter, making her pregnant.

Held:

(1) The starting point for sentencing for this offence is 42 months imprisonment.

(2) Mitigating factors are: no physical injury or STD; co-operated with police; no further trouble; pleaded guilty; first-time offender.

(3) Aggravating factors are: large age gap; victim only 16 years old; no consent; penile penetration; emotional impact on victim; breach of trust; did not give himself up; no compensation, apology or reconciliation; made his own daughter pregnant.

(4) A sentence of five years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Francis Angosiwen (No 2) (2004) N2670
The State v Mitige Neheya [1988-89] PNGLR 174

SENTENCE

This was a judgment on sentence for incest.

Counsel

L Rangan, for the State
P Kaluwin, for the offender

18 September, 2007

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of incest arising from the following facts. In October-November 2004 the offender, Raphael Torona, a man in his late 40s from Kieta, Bougainville, was living with his family at Mis village, near Madang town, Madang Province. One night in the family home he went to where his 16-year-old daughter was sleeping and had sexual intercourse with her, without her consent. As a result his daughter became pregnant and gave birth.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

My family is far away in Madang. My father is deceased; my mother is very old and is in Kieta. I know that I am wrong and now I say sorry to your Honour, to the lawyers, to everyone in the courtroom, to the community and to God. I ask this court for mercy.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). The only significant mitigating factor amongst all that material is that he co-operated with the police and made admissions in his police interview.

PERSONAL PARTICULARS

5. The offender's daughter was the third-born out from his first marriage. His first wife died when his daughter was very young. Then the offender moved to Madang, re-married, and had two children from the second marriage. He lived in Madang for 15 years. It was in that period that the offence was committed. He has since returned to Bougainville but the family is still in Madang and he wants to return there once his case is over. In fact, when he was asked whether he had a preference as to his place of imprisonment he said it was Madang. The offender is the fourth-born in a family of five boys and was educated to grade 5. He has never been formally employed.

SUBMISSIONS BY THE DEFENCE

6. Mr Kaluwin highlighted the guilty plea, which is significant in this case as he has saved his daughter the trauma and embarrassment of giving evidence in court; the offender's co-operation with police; and his remorse. A sentence of three or four years would be appropriate, Mr Kaluwin submitted.

SUBMISSIONS BY THE STATE

7. Mr Rangan submitted that this was a serious case of incest as the sexual relationship was not consensual. A statement from a clan chief shows that it is a very serious breach of customary law, which could lead to the death of the offender. A sentence close to the maximum is warranted.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what other sentences have been imposed recently for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 223 of the Criminal Code provides that the maximum penalty for incest is seven years imprisonment. The maximum used to be life imprisonment but amendments to the law made by the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002, changed the elements of the offence of incest and the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of three years, six months (42 months) as the starting point.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

11. There are few reported decisions on sentencing for incest under the new sentencing regime. In The State v Francis Angosiwen (No 2) (2004) N2670 Kandakasi J imposed the maximum of seven years in a trial involving a man found guilty of incest in relation to his daughter.

STEP 4: WHAT IS THE HEAD SENTENCE?

12. There are a number of considerations to take into account in deciding on a sentence for incest, as set out by Brunton AJ in The State v Mitige Neheya [1988-89] PNGLR 174. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 9 focus on the circumstances of the incident. Numbers 10 to 16 focus on what the offender has done since the incident and how he has conducted himself. Number 17 looks at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Is there only a small age difference between the offender and the victim? No – the offender was aged about 45 and the victim 16, an age difference of almost 30 years.
   
2. Was the complainant of a mature age at the time of the offence? No, she was only 16.
   
3. Was there consent? No.
   
4. Was the form of penetration other than penile penetration? No.
   
5. Did the offender not use a threatening weapon and not use aggravated physical violence? Neutral. The victim's police statement alleges that the offender threatened her but he has not admitted to that in his guilty plea so I do not regard it as an aggravating factor.
   
6. Did the offender not cause physical injury and not pass on a sexually transmitted disease to the complainant? Yes.
   
7. Was there no relationship of trust, dependency or authority between the offender and the complainant or, if there was such relationship, was it a distant one? No – the offender was her father.
   
8. Did the incident have only a minimal impact on the victim? No, in the absence of evidence to the contrary it must be presumed that the emotional impact on a young woman of being molested by her father and made pregnant would be severely adverse and permanent.
   
9. Was it an isolated incident? Neutral. The victim's police statement alleges that the offender molested her on at least three occasions but he has only admitted to one incident in his guilty plea so I do not regard it as an aggravating factor.
   
10. Did the offender give himself up? No.
    
11. Did the offender cooperate with the police in their investigations? Yes.
    
12. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did? No.
    
13. Has the offender not caused further trouble to the complainant or the complainant's family since the incident? Yes.
    
14. Has the offender pleaded guilty? Yes.
    
15. Has the offender genuinely expressed remorse? Neutral. The offender did not apologise to his daughter in his allocutus.
    
16. Is this his first offence? Yes.
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? No, he made his daughter pregnant, exhibiting a shameful abuse of trust.
    

13. To recap, mitigating factors are:

• No 6 – no physical injury or STD;
• No 11 – co-operated with police;
• No 13 – no further trouble;
• No 14 – pleaded guilty;
• No 16 – first offender.
  

14. Aggravating factors are:

• No 1 – large age gap;
• No 2 – victim only 16 years old;
• No 3 – no consent;
• No 4 – penile penetration;
• No 7 – breach of trust;
• No 8 – emotional impact on victim;
• No 10 – did not give himself up;
• No 12 – no compensation, apology or reconciliation;
• No 17 – made his own daughter pregnant.
  

15. The remaining factors (Nos 5, 9 and 15) are neutral. There are five mitigating factors compared to nine aggravating factors, which gives an indication of the very serious nature of the offence that was committed. The sentence I impose is five years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is five months, one week, five days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

17. There is no pre-sentence report before the court and I have not been informed of any reconciliation or forgiveness. No material has been presented that warrants suspension of any part of the sentence.

SENTENCE

18. Raphael Torona, having been convicted of one count of incest, is sentenced as follows:

Sentenced accordingly.
_______________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender