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Neheye v The State [1994] PGSC 13; [1994] PNGLR 71 (30 August 1992)

PNG Law Reports 1994

[1994] PNGLR 71 - Mitige Neheye v The State�

[1994] PNGLR 71

SC448

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MITIGE NEHEYE

V

THE STATE

MARTIN GAWI

V

THE STATE

Waigani

Woods Konilio Doherty JJ

23 April 1992

30 August 1992

CRIMINAL LAW - Sentence - Incest - Sentencing principles - Plea of guilty - Pregnancy - Age of victim - Consensual relationship.

Facts

The appeals arose out of sentences imposed on two separate incestuous relationships. The Supreme Court is required to consider sentencing principles, and this is the essence of these two separate rulings being considered together.

Held

The following guidelines are to be taken as appropriate to sentencing for incest:

N2>1.������ The offence is a serious crime for which the legislature has provided a maximum term of life imprisonment.

N2>2.������ Sentences for the offence of incest have been increasing in recent years, but the 7-year sentence in case of appellant Mitige Neheye does not represent a sudden increase in the range of sentences for this type of offence.

N2>3.������ An act of incest committed without consent or by force amounts to rape, and it is valid to apply the tariff for rape in such cases.

N2>4.������ In sentencing, a distinction must be drawn between a consensual relationship and one based on force, threat or intimidation.

N2>5.������ The following are matters which should be considered in considering sentence in incest:

(a)����� the relationship of the parties;

(b)����� the age of the victim;

(c)����� if force, threats, or intimidation were involved and, if so, the degree of such force, threats, or intimidation;

(d)����� whether it was consensual between adults;

(e)����� the number of times;

(f)����� over what period of time the incidents (if more than one) occurred;

(g)����� whether pregnancy ensued by reason of the defendant failing to take contraceptive measures;

(h)����� the comparative ages.

N2>6.������ The following are other aggravating factors regardless of age of the victim:

(a)����� if the victim has suffered physically or psychologically from the incest;

(b)����� if it continued over a long period of time;

(c)����� if the incest has been accompanied by perversions, abhorrent to the victim;

(d)����� if the defendant has committed similar offences against more than one girl.

Cases Cited

Papua New Guinea cases cited

Aubuku v The State [1987] PNGLR 267.

State v Neheya [1988-89] PNGLR 174.

Other case cited

Attorney General's Reference No 1 of 1989 [1989] 3 All ER 571; [1989] 1 WLR 1117; (1989) 90 Cr App R 141.

Counsel

E Batari, for the appellants.

V Noka, for the respondent.

30 August 1992

WOODS J:� These are two appeals from sentences imposed following pleas of guilty to the crime of incest. Because the sentencing principles applied were the same in each case, the appeals against sentence have been argued together.

Mitige Neheye had pleaded guilty to four counts of incest with his daughter in August 1987. The appellant was 39 years of age, married with two wives and eight children. The victim was the fourth child of the second wife and was aged 15 years at the time of the offence. The victim became pregnant, and from the evidence it appears the appellant took her to a doctor to confirm the pregnancy. The appellant was sentenced to seven years imprisonment.

The original notice of appeal was lodged by the appellant himself from jail. A supplementary notice of appeal was filed, and the grounds set out and argued were that the sentence is manifestly excessive in that:

N2>1.������ the trial Judge erroneously applied the tariff in rape sentences to the crime of incest;

N2>2.������ the trial Judge placed too much weight on the social effects adverse to the victim;

N2>3.������ in all the circumstances, it is out of reasonable proportion to the crime committed.

On the first ground of appeal, the trial Judge clearly noted in his judgment that under the Papua New Guinea Criminal Code Ch 262 there are three sexual offences which attract life imprisonment. These are incest by man (s 223), which is the offence in this case, the defilement of a girl under 12 (s 213), and rape (s 347). He then noted that the sentences of life imprisonment laid down by the legislature indicate the seriousness with which it views these offences. After noting that the Supreme Court has not discussed the principles for sentencing in incest cases but that it has recently addressed principles of sentencing in rape in Aubuku v The State [1987] PNGLR 267, he said that, in his view, the same principles can be applied to the offence of incest, because that offence is a sexual offence and because it is regarded as a very serious offence by Parliament.

Counsel for the appellant has submitted that this is wrong, but he has presented no substantial reasons why this is wrong. I cannot find any error in His Honour's reasoning here. I refer to the phrase "statutory rape", which is sometimes used in other jurisdictions to describe carnal knowledge under age, where consent is not an element. The law has clearly understood that children can be at a disadvantage in certain areas of contact. They are educated and brought up to respect their elders and to do what grown ups and their parents tell them. That is part of effective growing up and learning about life. Thus, in the matter of sexual contact, they must initially rely on being told or advised by their elders or parents.

The law recognises that young people may not know the full implications of sexual intercourse and they, thus, may be overawed or feel disadvantaged when approaches are made of a sexual nature. So they submit to sexual contact without necessarily realising what is happening or going to happen. Therefore, consent is not to be considered. The law recognises that full mature consent may not exist; therefore, under law, incest is the equivalent of rape. As His Honour has said, the penalty laid down by Parliament clearly suggests that it must be dealt with the same as rape. I, therefore, find no error here. Counsel for the appellant has presented no clear reasons or authorities to show any error.

On the second ground, perhaps counsel for the appellant was referring to the reference by His Honour to the concern in metropolitan countries and in informed circles in Papua New Guinea that the position of women in society and its general subservient or secondary nature can, in part, be attributed to the violence that is visited upon women. He then states, "A lot more is known about the effect of incest as an offence upon the psychology of young girls. It is a gross betrayal of the most sacred relationship between father and daughter. When young girls are the victims, it is difficult to imagine that the girls will not be scarred emotionally, perhaps for life. In this case the victim, who once loved her father, now says that she hates him".

I find no error in His Honour's reasoning. I, myself, in incest cases have for years emphasised in sentencing that we expect fathers to protect their children not to defile them; and if you defile them and betray their trust, then you must be heavily punished. I have imposed sentences of up to six years in equivalent situations (although the six-year sentence imposed in 1983 was after a plea of guilty to a rape charge involving the 9-year-old niece of that defendant). His Honour says, "The prime duty is to protect the young". I have been saying that myself for years as a Judge, so I, therefore, find nothing unusual in His Honour's reasoning in this area and find no errors on this ground.

The third ground is that His Honour has increased the range too suddenly or too drastically after noting that the range of sentences has been between two years to five years. Counsel has referred to the English case of Attorney General's Reference No 1 of 1989 [1989] 3 All ER 571. Whilst that case contains detailed guidelines on sentencing in cases of incest, these are, of course, in relation to the English law. However, there is a major difference between the English law and the Papua New Guinea law. Under the English Sexual Offences Act 1956, incest by a man on a female over 13 years carries a maximum penalty of seven years imprisonment, whilst in Papua New Guinea it is life imprisonment. However, that English case does note, which His Honour has noted in his judgment, that the view taken by the legislature of the gravity of this offence has to be judged by the maximum penalty which can be imposed. Therefore, whilst we cannot necessarily follow the ranges noted in the English case because our maximum penalties may be different, the main point is that we must note the gravity by the way the legislature has treated it.

I have already noted that in a similar category of case in 1983 I imposed six years imprisonment for a sexual offence against a 9-year-old niece who was in the care of the victim. This must be considered equivalent to incest, but is not incest because of the lack of the direct relationship. That case being a plea of guilty, it cannot be said that the increase in sentencing to seven years, as in the case before us now, is an unreasonable jump. I further note the circumstances of aggravation here; that pregnancy did ensue. His Honour discussed this in some detail. I feel that His Honour has carefully noted what many people feel, namely, that incest is as serious as rape. It does breach the sacred responsibility of the care of children; it can cause emotional scars, although scars that we may never fully discover; and in this case there is the pregnancy, which has to be a burden on a young girl looking for a real normal relationship with a partner later on. I do not need to have a 15-year-old victim of incest to be cross-examined about possible emotional scars, or about future social stigma, or about future difficulties that may arise with any emotional relationship. We have been inundated with enough publicity about the misfortunes of young girls by media and by books to be aware of the possible repercussions.

I, therefore, see no errors, and I see no increase by leaps and bounds. I only see an appropriate sentence in the category of the penalties as laid down by the legislature of this country.

I dismiss the appeal of Mitige Neheye.

Martin Gawi had pleaded guilty to committing incest with his daughter in 1989. At the time, his daughter was 18 years old and attending high school. The appellant talked of his belief that his daughter was being enticed by a man through black magic, so he himself gave his daughter some potion to neutralise the black magic. This caused her to have dreams of a sexual affair with her father, which he took advantage of. He apparently had sexual intercourse with her a number of times until she became pregnant. The child died one week after birth.

The trial Judge, in considering the sentence to impose, referred to Brunton J's comments in State v Neheya [1988-89] PNGLR 174. Except for the ages of the accused and the victim in that case, he applied the Judge's remarks to his case. So we are faced with another Judge expressing and agreeing with the seriousness of the crime of incest. As His Honour says, "In my view, with respect, the age of the victim does not matter. It is the relationship that matters. For the prisoner to have sexual intercourse with his own blood daughter when his second wife is with him, and from whom he could easily satisfy his sexual desires, is very serious in my view." His Honour notes that the father took advantage of her relationship with him in her dream, she having revealed it to him because he was her father and she trusted him. His Honour sentenced him to six years imprisonment.

Counsel has submitted that the Court has usually adopted a lower sentence for an older victim and, therefore, in this case, as the girl was 18 years old, the case must be adjudged less severe, into the lower range of sentences. Whilst it is true that, at 18 years of age, the victim can be regarded as being a mature adult who did consent; nevertheless, she was still at high school and was, thus, still under the care and protection of her father, who abused that position.

I agree that the sentence should not be as severe as that imposed in Mitige Neheye's case, and I find the sentence of six years is excessive.

I, therefore, allow the appeal of Martin Gawi and substitute a sentence of four years.

KONILIO J:� I have read the judgments of Woods J and Doherty J, and I agree with them. I agree that appeal of Mitige Neheye be dismissed and that the appeal of Martin Gawi be allowed and substitute a sentence of four years.

DOHERTY J:� I have read the judgment of Woods J and agree with all he says in regard to the trust relationship breached in incest cases and on tariff increases in incest cases.

It seems to me that there has been a tendency on the part of the Public Prosecutor in the past to indict a defendant for incest regardless of whether it took place by consent or by force. Sexual intercourse with a woman without consent or by force is rape and must invite a sentence tariff on the same scale as rape. A filial relationship would, in my view, be an aggravating factor, as it involves a breach of trust between the older adult member of the family and the younger child.

The relationship of the parties, their comparative ages, the age of the victim, whether it was consensual between adults (as in a brother and sister close in age), the number of times sexual relations took place, over what period of time, and the degree of force are all relevant matters in assessing punishment.

Counsel for the appellant has referred us to the English case of the Attorney General's Reference No 1 of 1989 [1989] 3 A11 ER 571.

It has been said in other cases that care should be taken in adopting the tariffs set in other jurisdictions. I endorse that view, particularly where, as in the case of incest with a female over 13 years, the penalty provisions in the respective legislations are different.

It has been noted by the learned writers of the book "Sex, Crime, and the Law" (New York: Free Press, 1977) at p 68, "Incest is contrary to the mores of all societies". A traditional attitude in the appellant Mitige Neheye's own society is reflected in the statement he made to his daughter. "Do not tell anyone about this. If you say it to your adopted parents and they kill me....".

Since incest is commonly repugnant, I consider these additional aggravating factors set out in Attorney General's Reference No 1 of 1989 at p 576 are appropriate matters that may safely be considered by our own courts:

"Other aggravating factors, whatever the age of the girl may be, are, inter alia, as follows:

(1)����� if there is evidence that the girl has suffered physically or psychologically from the incest;

(2)����� if the incest has continued at frequent intervals over a long period of time;

(3)����� if the girl has been threatened or treated violently by or was terrified of the father;

(4)����� if the incest has been accompanied by perversions abhorrent to the girl, eg buggery or fellatio;

(5)����� if the girl has become pregnant by reason of the father failing to take contraceptive measures;

(6)����� if the defendant has committed similar offences against more than one girl."

I agree with Woods J that the tariff in Mitige Neheye's case, when considering the force used, the number of incidents, and the age, is not excessive, and I would not allow this appeal.

The incest in Martin Gawi's case occurred in a consensual relationship between a girl of 18 and her father. There is a suggestion that the father administered a herbal potion that incited the girl, but this is not clear. There appears to have been genuine affection between the parties.

In view of this, I consider that a comparison with a case involving threats, force, and intimidation of a younger girl is not a wholly valid comparison, but I concur that the breach of trust, fundamental in the repugnance against incest, still exists. I would have considered a lesser sentence was warranted and would have suggested a penalty of four years instead of six.

I would allow this appeal and substitute a sentence of four years.

Order of the Court in Neheye's case - appeal dismissed.

Order of the Court in Gawi's case - appeal allowed, sentence of six years quashed; sentence of four years IHL imposed.

Lawyer for the appellants: Public Solicitor.

Lawyer for the respondents: Public Prosecutor.