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State v Sangep [2012] PGNC 70; N4684 (17 May 2012)

N4684

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1 0F 2012

THE STATE

V

WILLIE MAS SANGEP

Madang: Cannings J
2012: 3, 12 April, 10, 17 May

CRIMINAL LAW – sentence – incest – Criminal Code, Section 223 – offender had sex with his niece, making her pregnant – guilty plea – sentence of 4 years.

A man pleaded guilty to one count of incest. He had sex with his younger sister's 16-year-old daughter, his niece, making her pregnant. This is the judgment on sentence.

Held:

(1) The maximum penalty is 7 years and a useful starting point for sentencing purposes is 42 months imprisonment.

(2) Mitigating factors are: no prior conviction; no physical injury or STD; the victim was not his biological daughter; co-operated with police; no further trouble caused to the victim; pleaded guilty; early guilty plea; remorse; substantial compensation.

(3) Aggravating factors are: large age gap; victim only 16 years old; made her pregnant; no consent; emotional impact on victim; severe breach of trust.

(4) A sentence of four years was imposed. The pre-sentence period in custody was deducted and three years of the sentence was suspended because of genuine efforts towards reconciliation.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Marcus Pitmete (2007) N3229
The State v Michael Siwiri (2006) N3382
The State v Paul Waiya CR No 1834 of 2005, 21.12.05
The State v Raphael Torona CR No 875 of 2007, 18.09.07

SENTENCE

This was a judgment on sentence for incest.

Counsel

J W Tamate & M Pil, for the State
E Valikvi, for the offender

17 May, 2012

1. CANNINGS J: This is a decision on sentence for a 50-year-old man, Willie Mas Sangep, who pleaded guilty to one count of incest, contrary to Section 223(1) of the Criminal Code. He had sex with his younger sister's 16-year-old daughter, his niece. The offence was committed at Garup village in the Sumkar District of Madang Province in June 2011. The offender followed his niece to the river where she was preparing to wash dishes. He grabbed her from behind, took control of her and without her consent penetrated her vagina with his penis, and did that three times in one day. This caused her to become pregnant and she has recently given birth. She did not immediately tell anyone what happened as the offender had threatened to harm her if she reported him but when it was clear that she was pregnant she was asked questions, which led to her telling her parents that it was her uncle who was responsible.

ANTECEDENTS

2. The offender has no prior conviction.

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:

I am very sorry that I committed this offence. I have reconciled with my niece and her parents in a customary way by paying three separate rounds of compensation, worth K300.00, K700.00 and K1,900.00. My wife passed away a long time ago. I do not live in the village any more. My house was burned down by my relatives after they found out what happened. Life is very difficult for me now. I ask for the mercy of the court and a non-custodial sentence.

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 (2006) SC890). I take into account that he co-operated with the police and made admissions in his police interview. It is also accepted that he has paid substantial compensation in the amounts he referred to.

PRE-SENTENCE REPORT

5. Willie Mas Sangep comes from Garup village and has lived all his life there until recently. He was chased out when his offence came to light. He is now living at Karkum village. He has nine children who he has brought up as a single parent after the death of his wife in 1998. He was educated to grade 4. He has never been formally employed. His health is sound. He used to survive financially through income earned from the sale of garden produce but since being chased out of the village he has found things very difficult. The only asset he owns is his land. He is very concerned about the welfare of his children. Receipt of the compensation referred to by the offender in the allocutus (which has been in the form of pigs, food and a block of land) has been confirmed by the victim's father who has indicated that he supports the offender's bid for a suspended sentence. The report concludes that the offender is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Valikvi highlighted a number of mitigating factors: the guilty plea, admissions to the police, no prior conviction, the expression of remorse, payment of compensation, absence of physical violence, the victim was not subject to any further sexual indignity or perversions in addition to the act of incest, there has been no further trouble caused to the victim. A sentence of four years, part of which should be suspended, would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Tamate strongly opposed the proposal of a suspended sentence, and submitted that a lengthy custodial term was called for, highlighting that the offender had made his own niece pregnant at a very young age, thus changing her life forever in a negative way and undermining her prospects of marriage. The very large age difference was another major aggravating factor that made this a very serious case.

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 sentences have been imposed for equivalent offences?
• step 4: what should the head sentence be?
• 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. I will use the mid-point of three years, six months (42 months) as the starting point.

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

11. Ms Valikvi helpfully referred in her submission to two decisions of Kandakasi J in which offenders had pleaded guilty to incest in relation to their niece: The State v Paul Waiya CR No 1834 of 2005, 21.12.05 and The State v Michael Siwiri (2006) N3382. The sentences imposed were seven years and six years imprisonment respectively. Both of those cases had significant aggravating features. In Waiya a bush knife was used to threaten the victim before she was sexually penetrated. In Siwiri the victim was tricked into having sex by her uncle who told her that it was necessary to do so if she wanted to get married. Ms Valikvi also referred to my decision in The State v Raphael Torona CR No 875 of 2007, 18.09.07, where a man pleaded guilty to incest in relation to his 16-year-old biological daughter, making her pregnant. The sentence was five years imprisonment.

STEP 4: WHAT IS THE HEAD SENTENCE?

12. I refer to the list of sentencing considerations set out in Torona and in Lay J's judgment in The State v Marcus Pitmete (2007) N3229 and highlight the following mitigating and aggravating factors.

13. Mitigating factors:

• the offender has no prior conviction for any offence;
• he caused no physical injury to the victim and did not pass on any sexually transmitted disease;
• the victim was not his biological daughter;
• he co-operated with and made early admissions to the police;
• he has caused no further trouble to the victim;
• he pleaded guilty, and it was an early guilty plea;
• he has expressed genuine remorse;
• he has paid substantial compensation.
  

14. Aggravating factors:

• the large age gap (34 years) between the offender and the victim;
• the victim was only 16 years old;
• there was no consent;
• he made the victim pregnant;
• he has changed his niece's life forever, forcing her into motherhood at a very young age;
• the breach of trust was severe.
  

15. The offender must be given credit for his early guilty plea and the payment of compensation, which are signs of genuine remorse and acceptance of responsibility for his actions. However, the fact that he made his niece pregnant and that she is so young are extremely weighty aggravating factors. A sentence above the starting point but below the five years imposed in Torona is required. I impose a sentence of four years imprisonment.

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

16. Yes. 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 four months.

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

17. The pre-sentence report is generally favourable, and the prospect of reconciliation seems realistic. However, it is not clear what the present attitudes of the victim and her mother are to the offender. The court has only been informed about the attitude of the victim's father (who says the offender should be shown some leniency). So it is not appropriate to suspend the entire sentence. I will, however, suspend a substantial part of it: three years. That means that the offender will have to spend some more time in custody, which will reinforce the gravity of his crime. Then upon his release from prison he will be on probation for three years. He has already paid some compensation and it does not appear that the victim's immediate family is seeking much more. However, I think it will assist the healing process for him to pay some more; this should be regarded as financial assistance to his niece in the raising of the child. Therefore I will include a requirement to pay further compensation in the conditions of the suspended part of the sentence. Other standard probation conditions will also apply. Three years of the sentence is suspended on condition that the offender:

(a) must appear before the National Court and have the conditions of the sentence fully explained to him before being released from custody;

(b) must report to the Probation Office within three days after the date of release from custody;

(c) must, within six months after the date of release from custody, with his family, participate in a reconciliation ceremony with the victim and her family, supervised and witnessed by the Police, the Village Court and the Probation Office, and:

• pay compensation of K1,000.00 cash + foodstuffs to the victim;
• the victim's family must contribute 5 chickens + foodstuffs;
  

and, within one week after the reconciliation ceremony, the Probation Office shall provide a report of the reconciliation ceremony to the National Court in Madang;

(d) must appear before the National Court at Madang within seven months after the date of release from custody to prove compliance with condition (c);

(e) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

(f) must not leave Madang Province without the written approval of the National Court;

(g) must perform at least three hours unpaid community work each week at a place notified to the Probation Office under the supervision of his local Church elder;

(h) must attend his local Church every weekend for service and worship and submit to counselling;

(i) must report to the Probation Office at Madang as and when required;

(j) must not consume alcohol or drugs;

(k) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and her family;

(l) must have a satisfactory probation report submitted to the National Court registry at Madang every six months after the date of release from custody;

(m) if he breaches any one or more of the above conditions, shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

18. Willie Mas Sangep, having been convicted of one count of incest contrary to Section 223(1) of the Criminal Code, is sentenced as follows:

Sentenced accordingly.

_________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Offender