Mitige Neheye v The State; Martin Gawi v The State

• Jurisdiction: Papua New Guinea
• Judge: Woods J, Konilio J, Doherty J
• Judgment Date: 30 August 1992
• Citation: [1994] PNGLR 71
• Court: Supreme Court
• Year: 1994
• Judgement Number: SC448

Supreme Court: Woods J, Konilio J, Doherty J

Judgment Delivered: 30 August 1992

SC 448

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 51 OF 1989

MITIGE NEHEYE -v- THE STATE

SCA 19 OF 1990

MARTIN GAWI -v- THE STATE

WAIGANI: WOODS, J

KONILIO, J

DOHERTY, J

23rd April & 30th August 1992

Criminal law — Sentence — Incest — Sentencing Principles.

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

(1) The offence is a serious crime for which the legislature has provided a
maximum term of life imprisonment.

(2) Sentences for the offence of incest have been increasing in recent years but
the increase in case of appellant Mitige Neheye does not represent a sudden
increase in the range of sentences for this type of offence.

(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.

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

(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 or 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.

(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:

The following cases are cited in the judgement:

Aubuku -v- The State [1987] PNGLR 267

Attorney General's Reference (No.1 of 1989) [1989] Crim App R (S) 409

E. Batari for the Appellants

V. Noka for the Respondent

WOODS, J: These are 2 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.

In Appeal 51 of 1989 the Appellant had pleaded guilty to 4 counts of incest with his daughter in August 1987. The Defendant was 39 years of age married with 2 wives and 8 children. The victim was the 4th child of the 2nd wife and was aged 15 years at the time of the offence. The victim became pregnant and from the evidence it appears the father took the victim to a doctor to confirm the pregnancy. The appellant was sentenced to 7 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:

1. In that the trial Judge erroneously applied the tariff in rape sentences to the crime of incest.

2. In that the trial Judge placed too much weight to the social effects adverse to the victim in sentencing the Appellant.

3. In that 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 namely incest, which is the offence in this case, the defilement of a girl under 12 Section 213 and Section 347. He then noted that the sentences of life imprisonment laid down by the Legislature indicate the seriousness with which Parliament views these offences. After noting that the Supreme Court has not discussed the principles for sentencing in incest cases but it has recently addressed principles of sentencing in rape in the case 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 real substantial reasons why this is wrong. I myself cannot find any error in His Honour's reasoning here. I refer to the phrases "Statutory Rape" which is sometimes used in other jurisdictions to describe carnal knowledge underage 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 and the law recognises that full mature consent may not exist therefore under law it 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 and Counsel for the Plaintiffs has presented no clear reasons or authorities to show any error.

On the second ground perhaps Counsel for the Plaintiffs 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...