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State v Yaul [2011] PGNC 66; N4330 (20 June 2011)

N4330

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 601 OF 2009

STATE

V

JACKSON YAUL
Accused

Wewak: Ipang AJ
2011: 6, 10, 15 & 20 June

CRIMINAL LAW – Sentence – incest – Criminal Code Act (as amended) – own natural daughter on two (2) occasions – plea of guilty – sentence of 5 years for first count & 5 years for second count – total of 10 years minus pre-sentence period of 2 years 3 months – offender to serve 7 years 9 months in prison

Cases Cited

Martin Gawi v State [1994] PNGLR 7
State v Mitige Nehiye [1998-1989] PNGLR 174
Arthur Maradi (1999) N1878
State v Ilam Peter (2006) N3090
State v JB (2007 N3224

Counsel

Mr. F. Popeu, for the State

Mr. J. Kolkia, for the Accused

DECISION ON SENTENCE

20 June, 2011

1. IPANG AJ: The offender pleaded guilty to a charge of two (2) counts of incest and was convicted. Based upon request from the Defence Counsel the Court ordered a Pre-Sentence Report to be done on the offender. Court then adjourned the matter to the 15 June, 2011 for Submission on Sentence.
   
2. The brief facts are these; the victim in this case is the natural daughter of the offender and they all live together in their family home at Kombikum No. 3 village in Maprik, East Sepik Province. On the 5th November, 2008 at around 9.00 am whilst the victim 'FY' was alone in the house with the offender, the offender had sexual intercourse with her. Then on the 14 day of November, 2008 the victim went to the garden with her small sister Bitris and the offender followed them. At the garden, the offender told the victim to follow him to another part of the garden to assist him to carry yams from the yam house. At the yam house the offender had sexual intercourse with the victim. Victim then reported the matter to their councilor who reported the matter to the police.
   

Antecedents

3. The offender has no prior convictions.
   

Allocutus

4. The offender was given the opportunity to address the Court. He said;
   

"I am sorry for my family. My children are in school. There's no one to look after them. I have my business, two (2) hectares of cocoa gardens. I ask for Court's mercy."

Pre-Sentence Report

5. I received the Pre-Sentence Report prepared by Kutan Ponious, the Probation Officer based at CBC's Office in Wewak. The report stated the following:-
   

"The officer is 42 years old and comes from Kombikum No.3 village of Yamil/Tanawi LLG, Maprik District. He is married with 6 children. His elders daughter from his second wife is the victim in this case. The victim said as early as she could remember, she had been continuously been sexually assaulted by her father. She said she recalled that she had not gone to school yet when her father began to assault her. 'F' is illiterate because her father wouldn't allow her to go to school. She had completed only grade 2. She recalls one incident when she was of pre-schooled age when her father sexually assaulted her and caused damaged to her private part. She was taken to the hospital to be stitched with caution from her father to tell the nurse that she had fell on to a tree stump while she was playing. This all began when the father returned to the villager after working outside of the province. She said that this has continued into her teenage years and she became pregnant from her father.

She said when she grew in to her teenage years; her father would become suspicious of her whereabouts and would question her insistently of this or would accuse her of going around or sleeping with other boys in the village. She said that when these accusations are made, the father would capitalize on that to assault her sexually as a means of discipline. The child she had conceived from her father died a week later after delivery. Her mother sent her to Madang to live with her uncle.

The victim's mother said that the defendant's interest shifted from her to the child when the father returned from Port Moresby. She also said that she moved to her village at Saikisi because her family insisted her to have this matter reported to the police. She said that while living in her husband's village, his families just turn a blind eye to what was happening out of fear of reprisal from the defendant. She said her husband threatened her for her to give consent for him to marry both her and the victim. The report stated that the offender is of no threat to the community but posses' great risk to the wife and daughters."

Submission by Defence Counsel

6. Defence counsel referred to a number of National and Supreme Court judgments and the types of sentence that were imposed. Counsel submitted that the age of the victim appears to be the factor in determining the severity of the penalty plus the aggravating factors. Counsel referred to the cases of State v JB (2007) N3224, Martin Gawi v State [1994] PNGLR 71, State v Ilam Peter (2006) N3090. Counsel submitted the Court takes in to account the mitigating factors, the aggravating factors and the Pre-Sentence Report and decide on the appropriate sentence.
   

Submission by State Prosecutor

7. State Prosecutor submitted that the maximum sentence for the charge of incest under section 223 of the Criminal Code Act (Amended) is seven years. Prior to the amendment of the Criminal Code Act, the penalty was "life imprisonment." Prosecutor said the offence has not become less serious as it is still very serious requiring stern punishment as a deterrent to those who would commit such offence.
   
8. The following as listed below are the mitigating and aggravating factors, which will be considered together with the Pre-Sentence Report for an appropriate sentence to be formulated.
   

9. The previous penalty under Section 223 of the Criminal Code Act is subject to Section 19, imprisonment for life. For some reason (s) only known to the law makers (parliamentarians), they have decided to make amendment to the penalty provision and reduced the penalty to Seven (7) years.

10. I consider the crime of incest to be one of the highest crime of human biological disorder or lineal disorder. Notably in this case I can't think of a father sexually penetrating his own daughter. The daughter is his very own flesh and blood. The act of the father does nothing more than to bring shame and embarrassment to his family. I therefore, join other judges and concerned public that penalty for offence under Section 223 of the Criminal Code Act should be increased.

11. In the case of State v Mitige Nehiye [1988-1989] PNGLR 174 at p. 177, His Honour Brunton AJ (as he then was) said:

"An incestuous act with a child is a circumstance of aggravation of the most severe kind. It is gross betrayal of the most scared relationship of father and daughter. When young girls are the victims, it is difficult to imagine that girls will not be scared emotionally, perhaps for life." In Arthur Maradi (1999) N1878, Jalina, J called for stiffer penalty to be imposed on offenders of incest.

12. I find the appropriate sentence for the offender would be a custodial sentence. I sentence the offender to 5 years imprisonment for the first count and 5 years imprisonment for the second count. Total of 10 years minus 2 years 3 months for pre-sentence period served in custody. Prisoner is to serve the balance of 7 years 9 months in prison.

____________________________________
Public Prosecutor: Lawyer for the State

Paul Paraka Lawyers: Lawyer for the Accused