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Police v Wail [1999] PGDC 14; DC60 (13 July 1999)

Unreported District Court Decisions

[1999] PNGDC 7 - POLICE V DONIS WAIL

[1999] PNGDC 7

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 16 OF 1999

PARTIES:� POLICE

INFORMANT

V

DONIS WAIL

DEFENDANT

Madang

Bidar PM

5 July 1999

12-13 July 1999

CRIMINAL LAW � Unlawful Carnal Knowledge � Plea of guilty � victim 14 years and (7) seven months old � Repeated acts of sexual intercourse by Adopted father � victim pregnant � expected delivery end of July or early August.

CRIMINAL LAW � Sentence � unlawful carnal knowledge aggravating factors � General principles and guidelines.

Cases Cited

State v Sottie Apusa [1988-89] PNGLR 170

State v Komai Airi CR 1290/96

Legislation Cited

Criminal Code Act s216(1)(a)

Representation

Counsel/Representative

Informant:� Constable M Ipai

Defendant:� Appeared in person

12 July 1999

BIDAR PM:

N1>[1]����� Donis Wail, you have pleaded guilty to the information which charged that, between 31 December 1998 to 31 March 1999, you unlawfully and carnally knew Amat Donis, a girl under the age of 16 years contrary to s216(1)(a) of the Criminal Code Act.

N1>[2]����� The prescribed penalty is a term of imprisonment, for a period not exceeding five years.

N1>[3]����� I will sentence the defendant on the following facts:

N1>[4]����� The victim, Amat Donis was adopted by the defendant and his wife when she was about one year and six months old from her natural parents. This customary adoption took place about ten months to a year, after the birth of the defendant and his wife's first born son, who is now years old. It seems the adoption took place towards the end of 1984 or beginning of 1985. The victim had been raised and brought up as a member of Donis family and defendant is the head of the family.

N1>[5]����� On a date in December 1998, the victim was in the house whilst her adopted mother, defendant's wife, went out on normal family duties. Whilst she was in the house about 10 o'clock in the morning, defendant approached her, grabbed her by her hands and dragged her into the bedroom despite her protests, he threatened to kill her if she did not co-operate.

N1>[6]����� He then forcefully stripped her and had sexual intercourse with her. This was the victim's very first experience of sexual intercourse. In January 1999, defendant had sexual intercourse with the victim again the same bedroom and in the same manner. Defendant had three more acts of sexual intercourse with the victim, all of which took place in their own house and family bedroom. There were five acts of sexual intercourse from December 1998 to March 1999. By March, the victim felt that her body was getting heavy, but did not know if she was pregnant or not.

N1>[7]����� On 17 March 1999, she was checked by a nurse who visited the victim's village on routine Maternal Child Health and Ante-natal Clinic. The victim was confirmed to be pregnant. According to the medical report by Sister Anne Vieteus, Officer in Charge of Mugil Health Centre, the victim is expected to deliver by the end of July or beginning of August 1999.

N1>[8]����� On the facts the defendant should have been charged with five counts of unlawful carnal knowledge. Police for reasons only known to themselves decided to lay only one charge. It is not specified if it was the first or the last act of sexual intercourse defendant is charged with. In all the circumstances, I can only assume that it was the last act of sexual intercourse defendant is charged with.

N1>[9]����� S216 of the Criminal Code prescribes the offence defendant is charged with. It is in these terms:

N2>"(1)���� a person who:

(a)����� has or attempts to have unlawful carnal knowledge of a girl under the age of sixteen (16) years; or

(b)����� . . .

is guilty of a misdemeanour.

N2>(2)����� It is a defence to a charge of an offence against subsection (1)(a) to prove that the accused believed on reasonable grounds, that the girl was or above the age of sixteen (16) years.

N2>(3)����� . . .

N2>(4)����� . . ."

Penalty:������� Imprisonment for a term not exceeding five years.

N1>[10]��� The offence is a serious one as the penalty reflects its seriousness. In this case, it is particularly serious because the victim is your adopted daughter. She looked upon you as her father and protector. You have breached that trust. It is doubtful now whether she can call you her father or not.

N1>[11]��� On your allocatus, you say it was your first time to commit such an offence, and that you beg Court's mercy and forgiveness. You have children who are not old enough to look after themselves. That your wife does not care for your children properly.

N1>[12]��� The reasons you offered in the record of interview for committing this offence, was that, your wife constantly accused you of having affairs with the victim. You kept telling your wife, that her accusations were all false. You say, you were frustrated with her accusations, and so you decided to confirm her accusations. You were intent on making your adopted daughter pregnant, which you did, when you carnally knew her on five occasions.

N1>[13]��� In considering an appropriate sentence to impose on you, at the outset, I have considered imposing maximum sentence, but I have decided against it.

N1>[14]��� I take into account these mitigating factors on your sentence:

N2>(a)����� You have pleaded guilty. Your plea has saved the victim from trauma of appearing before this Court and re-living the experiences in front of total strangers.

N2>(b)����� You have expressed no remorse but has begged this Court for mercy and forgiveness.

N1>[15]��� As against you, you have breached the trust placed on you as a father. You carnally knew the victim not only once but on five occasions, and the victim is now pregnant with your child. The victim should really bear you a grand-child, not your child. The stigma which will remain with victim for long time, is the memory of being made pregnant by her father. I consider those factors are aggravating factors, which are against you.

N1>[16]��� Arriving at an appropriate sentence, is never an easy task, as each case is different. Your case is not a case of single act of sexual intercourse but, rather, repetitive acts on the same victim, until her pregnancy.

N1>[17]��� I take into account in considering your sentence, the case of State v Sottie Apusa [1988-89] PNGLR 170, and the recent case of State v Komai Airi CR 1290/96.

N1>[18]��� In the former case, Brunton AJ (as he then was) set out factors to be taken into account and the range of sentences appropriate in this view. I consider those factors and range of sentences are appropriate and I adopt them in this case.

N1>[19]��� In the latter case, Her Honour Doherty J (as she then was) dealt with prisoner who was 21 years old and the victim nine (9) years old. It was a plea case, and there were severe injuries and much bleeding. Prisoner was sentenced to four years imprisonment.

N1>[20]��� The case before me lacks features of violence, but features of aggravation are clearly present.

N1>[21]��� Taking into account various factors, I have referred to and all the circumstances of the offence, I conclude that a period of custodial sentence is appropriate.

N1>[22]��� I therefore, convict the defendant and sentence him to imprisonment with hard labour for a period of two (2) years.

Constable M Ipai for Police Informant

Defendant appeared in person