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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR.NO.24 OF 2009
THE STATE
V
JUNIAS TOLOM & DORISH VOA
Kokopo: Lenalia, J.
2009: 9th & 18th February
CRIMINAL LAW – Sexual offence – Sexual penetration of blood relative –
Aggravations – Incest by an uncle on his niece – Incest by niece with her uncle – Jointly charged – Offences
committed over a period of time between March 2007 and October 2008 – Persistent sexual penetration – Plea – Matters
for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.s.223 (1)
CRIMINAL LAW – Incest aggravations – Breach of trust – Incest and like offences
very prevalent in PNG community – No substantial age differences – Aggravation – Punitive and deterrent sentence
called for – Sexual penetration persisted for over 1 ½ years – Consecutive sentences of 12 years each sufficient.
Cases cited.
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Grayson Andowa v The State (1998) SC 576
Mase v The State [1991] PNGLR.88
Public Prosecutor v Terrance Kaveku [1977] PNGLR.110
The State v Mitige Neheya [1988-89] PNGLR 174
The State v James Donald Keimou (2001) N 2295
The State v Eddie Sam (2004) N2521
The State v Harry Wara (16.6.07) CR.No.413 of 2007
The State v Miriam Warlil (15.6.07) CR.No.414 of 2007
The State v Lawrence Kava (13.3.06) CR.N0.1116 of 2004
Counsel:
L. Rangan, for the State
P. Kaluwin, for the Accused
18 February, 2009
1. LENALIA, J: The two prisoners in this case, Junias Tolom and Dorish Voa are both from Malaguna No.1 village, Rabaul, East New Britain Province. They are jointly charged with three counts of incest against each other. On arraignment they pleaded guilty to the three charges. This is an offence contrary to s.223 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The facts show that the offences were committed over a period of time between 1st March 2007 and 6th of October 2008.
Relationship
2. The relationship between the two accused is clearly covered in their confessional statements dated 6th & 7th October 2008 made by the two prisoners. In the case of the male prisoner, the female co-accused is the daughter of his first born sister. The female accused told investigating officers that, the first accused is her mother's small brother that is her mother and Junias Tolom have the same parents and they are brother and sister. Such relationship is defined by Sections 6A and 223 (2) of the Act.
Summary of Facts
3. The sexual relationship between the two accused began in March 2007. Early morning on a Saturday of that month about 3 am, the 2nd Accused was returning from a dance when the 1st Accused met her on the street in Rabaul. Since they are related, the 1st accused invited Dorish Voa to go with him to his house. In the remaining hours of that morning the two accused had sex for the first time. It was the first of the many occasions of sex that started from then until they were found out on 6th October 2008. The mother of the 2nd Accused made her own investigations and found out about the pair's relationship.
4. The female accused states in her confessional statement and the record of interview that, after the first time they had sex, she can not recall the number of times they use to have sex because they consistently had sex until her mother found out. She reveals too in those documents that although she knew that the male accused is very closely related to her she continued to engage in sexual relationship with Junias. By contrast, the male partner said in the record of interview and the confessional statement that, he only had sex with his niece three times.
5. Dorish's mother states in her statement that, the male accused used to treat the female accused like his wife. Whenever she was late coming home, he would beat her up and kept pestering her. He applied very strict control over Dorish more than other children in that family. The 1st Accused never exhibited this type of attitude to other children in the family. This made Eva Voa suspicious so she decided to keep a close watch over the two accused activities such that in time she realized and suspected that, the two accused were having a love affair. She kept her suspicion until she found them out.
Addresses on allocutus
6. The 1st Accused briefly said, he is sorry for committing these offence upon his niece. He admitted he knew that the female partner is very closely related to him. He said he was adopted by another family and grew up in Lae and when he returned he committed these offences. He further said this is his first time to appear in court and asked that he be given a chance. The 2nd Accused likewise said, she is sorry for what she did, said sorry to her immediate family members and the 1st Accused and his parents. She begged for mercy and leniency and if possible she could be given a good behaviour bond or something of that nature.
Address by Defence Counsel on Sentence
7. Mr. Kaluwin of counsel for the two prisoners asked the court to consider the following mitigations:
➢ their guilty pleas,
➢ they are first time offenders,
➢ they will have to live with the stigma all their lives,
➢ they are remorseful and
➢ They have no previous convictions.
8. On sentence counsel submitted that the best way to punish the two accused would be to punish the two of them publicly and for the court to impose sentences but suspend sentences wholly and place them on community work so that they work in the village so people can see them. In this way, the community will play its part and the two accused will bear the shame of their wrong doing rather than hiding them away in the Correctional Services where they will not learn anything.
Address by Prosecution Counsel on Sentence
9. Mr. Rangan of counsel for the prosecution submitted on the serious aggravations of the three cases saying that morally the cases involved breach of trust and the court should consider consecutive sentences as the three cases were separate instances where sexual intercourse took place between the two prisoners. Counsel submitted on the prevalence of this offence which undermines community ties and bonds. He submitted on the consistent sexual behaviour saying, this was a shameful act and the court must or should punish the two accused appropriately. Counsel submitted serious aggravations include:
Relevant Law
10. The maximum penalty for the offence of incest is a term not more than 7 years. Section 223 (1) & (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act state:
"(1) A person who engages in an act of sexual penetration with a close blood relative is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years."
(2) For purposes of this section, a close blood relative means a parent, son, daughter, sibling (including a half brother or sister), grandparent, grandchild, aunt, uncle, niece, nephew or first cousin, being such a family member from birth and not from marriage or adoption."
11. Time and again, this court and other judges have expressed grave concern that, offenders who commit the offence of incest must be prepared to face the consequences of being sent to long terms of imprisonments. Be it for an offence of incest or any other offences under the Criminal Code (Sexual Offences and Crimes Against Children) Act, it is very serious because as in this case, incest erodes customary ties and offends against the moral decency standards. There are too many incest cases in the criminal list together with other sexual penetration cases. In your case, as though there were no more other girls or boys left on planet earth to be-friend for sexual purposes.
12. This is a sign of a sick society. The excuse by the 1st Accused that the reason he did this to his niece was because when he used to bring women to their house to marry and the victim's mother used to fight with them cannot be accepted. I make the same comments to the 2nd Accused. You knew well that the 1st Accused is your uncle, yet you chose to agree with him to go to his house to have sex. Your behaviour toward one another was and is totally nonsensical and out of logic.
13. Incest is an act of 'gross betrayal of the most sacred relationship' not only between the father and daughter as was in The State v Mitige Neheya [1988-89] PNGLR 174. It is an abuse of the sacred relationship between the class of persons defined under ss.6A and 223 (2) of the Act. The penalty for incest was changed from life to seven years is I think, to recognize the experience of the courts that the great number of incest cases with serious aggravating circumstances were offences against children involving in many cases, gross breaches of trust.
14. The facts of this case show that the two prisoners committed incest many times. One passage particularly appropriate to the present case comes from the case of Grayson Andowa v The State (1998) SC 576 where Woods J; Injia J; (as he then was) and Akuram J; said:
"One feature of many of these incest cases is that once the man has committed one act of incest against a daughter or sister he often repeats. In the above-mentioned case there were repeated acts and in the case before us now there are two counts and the evidence is that the appellant was wanting to do it again. This highlights the importance of stopping these incest acts as soon as discovered because they tend to repeat and suggests that two counts can be as serious as many as if not stopped they do lead to many."
15. Speaking of the effect on the family and the victims of this type of crime, Kandakasi J; made the following pertinent observations in the case of The State v James Donald Keimou (2001) N 2295 which, with respect, I fully endorse:
"... it no doubt destroys trust, the security of the home and leaves for ever lifetime scars for the victim and a bad stigma for him or herself and his or her family and relations. Love gets replaced by hate and trust with distrust. Insecurity replaces security and fear replaces confidence in the family unit and the immediate community. Happiness, peace and joy are replaced with shame, ridicule and unhappiness in the family unit and in the wider community. If the victim gets infected with sexually transmitted diseases, his or her health is replaced by sickness."
16. The above comments were made in relation to the cases of a father and his two daughters. In the instant case, the two accused appear to be youths just to be about adults now. Last year, this court in the case of The State v Hosea Morongo (25.3.08) Cr.No.532 of 2005, where the prisoner pleaded guilty to two charges of incest with his daughter. He was an elite and teacher by profession. He was sentenced to a cumulative sentence of 8 years. Five (5) years were imposed for the first charge and 3 years for the second one. They added up to 8 years. Those were charges of incest under s.223 (1) of the Act.
17. Crimes of incest cannot be treated lightly. The crime itself is very serious offending against the law of this nation, the human logic, and nature. I accept Mr. Rangan's submission that, the three counts of incest were three separate acts of incest committed by the two accused. I must add that the two accused committed very serious offences. You two breached the trust reposed on you two by your parents and the Tolai custom.
18. There was an existing trust between the two of you in terms of ss.6A & 223 (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. Instead of you accused Junias Tolom looking after Dorish, you chose to sexually abuse her. You even treated her as your wife by physically abusing her. Despite the fact that you were both aware of such existing relationship between you two to be very close, you continued to have sex until you were found.
19. On the prisoners' mitigations, the court will take into account your guilty pleas to the three charges. Certainly that is a factor in your favour. I take into account the fact that, no compensation has been paid. You have also shown remorse in your allocutus. But words of remorse in cases of very serious crimes cannot make good or rectify the damage caused to your parents, your community and the law.
20. Before the prisoners are sentenced, I remind myself about the totality principle which requires that when a decision is made to make two or more sentences consecutive, I must consider the totality principle. The principles require this court to see that the total sentence impose must be just and appropriate: Public Prosecutor v Terrance Kaveku [1977] PNGLR 110, see also Mase v The State [1991] PNGLR 88 or Acting Public Prosecutor v Konis Haha [1981] PNGLR 205.
21. I have considered options of imposing concurrent or consecutive sentences. I must make sure that, if the court decides to order consecutive sentences, the total must be fair and reasonable in all the circumstances of the three charges. I also remind myself that, the maximum penalty for the crime of incest is 7 years. Because the offences committed are separate offences, I consider imposing consecutive sentences.
22. Unlike in cases brought under the old provisions where there was discrimination on the penalty provisions in case of males and females when a male was charged for incest he was liable to the maximum term of life imprisonment while the female actor could only get a lousy 3 years. In the new amendment, it is no longer the case now meaning the court can impose equal sentences on both the 1st and 2nd Accused.
23. I think I showed some discrimination in sentences imposed in the cases of The State v Harry Wara (16.6.07) CR.No.413 of 2007 and The State v Miriam Warlil (15.6.07) CR.No.414 of 2007. Those cases involved incest between very close cousin brother and sister. The two prisoners in those cases pleaded guilty. The male accused was sentenced to 4 years and 2 years were suspended with conditions. Miriam was sentenced to 4 years, but 3 years were suspended with conditions and she only served 1 year. In my view there was great disparity in those sentences and I do not wish to repeat myself in the circumstances of the instant case.
24. Just a bit about offenders who have been charged with a series of sexual crimes. In this Province, in The State v Eddie Sam (2004) N2521, the prisoner was sentenced to 17 years imprisonment for nine counts of incestuous relationship with his biological daughter. In that case, the prosecution was also brought under the old section. The case went by trial. In The State v Lawrence Kava (13.3.06) CR.N0.1116 of 2004 a case between the prisoner and his cousin sister. He was convicted on his plea to three charges of incest. He was sentenced to 3 years each for those three counts making a total of 9 years imprisonment.
25. Having considered all mitigations and aggravations in the instant case, I am of the view that, I should impose consecutive sentences. The two prisoners are sentence to 4 years imprisonment for each count making a total of 12 years for each of them. The court will suspend 3 years from the sentence on condition to keep the peace and be of good behavior after serving 9 years each. The time spent in custody shall be deducted.
_____________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for Accused
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