The Public Prosecutor v Vangu'u Ame [1983] PNGLR 424

• Jurisdiction: Papua New Guinea
• Judge: McDermott J:
• Judgment Date: 14 December 1983
• Citation: [1983] PNGLR 424
• Court: Supreme Court
• Year: 1983
• Judgement Number: SC265

Full Title: Public Prosecutor v Vangu'u Ame [1983] PNGLR 424

Supreme Court: Kidu CJ, Kaputin J, McDermott J

Judgment Delivered: 14 December 1983

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE PUBLIC PROSECUTOR

V

VANGU'U AME

Waigani

Kidu CJ Kaputin McDermott JJ

25 October 1983

14 December 1983

CRIMINAL LAW — Sentence — Appeal against sentence — Incest — Non custodial sentence imposed — Effect of custodial sentence on welfare of children — Accused with sole care of children — Custom — Evidence of custom — Error in principle — Sentence of two years substituted.

The father with the sole care of four young female children, was convicted of incest with his adult sister, and the passing of sentence was deferred upon his entering into a two year good behaviour bond, on the basis of the effect of a custodial sentence on the welfare of the children.

On appeal against inadequacy of sentence:

Held

(1) (McDermott J not deciding) Although in sentencing it is proper to take into account the indirect effect of a person being given a custodial sentence such considerations must not be allowed to override the seriousness of the offence committed.

(2) In sentencing, the effect a custodial sentence might have on the welfare of children of the accused, should not be allowed to outweigh the seriousness of the offence.

(3) Custom may be taken into account on sentence only where there is proper evidence thereof.

(4) (McDermott J dissenting) In failing to impose a custodial sentence for the offence of incest, the seriousness of which is reflected in the maximum penalty of life imprisonment, the trial judge had erred in law in the exercise of his discretion and a sentence of two years imprisonment ought to be imposed.

Cases Cited

Acting Public Prosecutor, The v. Konis Haha [1981] P.N.G.L.R. 205.

Acting Public Prosecutor, The v. Uname Aumane, Aluma Boku, Luku Wapulae and Piope Kone [1980] P.N.G.L.R. 510.

Cranssen v. The King (1936) 55 C.L.R. 509; (1936) 10 A.L.J 199.

Mauwe Antape v. The State [1981] P.N.G.L.R. 68.

Norris v. The State [1979] P.N.G.L.R. 604.

Public Prosecutor, The v. Nahau Rooney (No. 2) [1979] P.N.G.L.R. 448.

R. v. H. (1980) 3 A. Crim. R. 53.

R. v. Radich (1954) N.Z.L.R. 86.

R. v. Tait (1979) 46 F.L.R. 386; 24 A.L.R. 473.

Appeal

This was an appeal against sentence on the ground of inadequacy pursuant to s. 24 of the Supreme Court Act (Ch. No. 37).

Counsel

J Byrne, for the appellant.

D McMillan and E. V. Batari, for the respondent.

Cur. adv. vult.

14 December 1983

KIDU CJ: This is an appeal by the Public Prosecutor under s. 24 of the Supreme Court Act (Ch. No. 37) against an order by the National Court, which deferred passing of sentence upon the respondent upon his entering into a two year good behaviour bond. The order was made under s. 19 (1) (f) of the Criminal Code (Ch. No. 262).

This is as far as I have been able to ascertain from the summaries of sentences by judges between January 1973 and 31 July 1983 the first time a person convicted of incest has been released without being sentenced.

An appellate court does not interfere in a case of exercise of discretion by a trial court unless it can be shown that the latter has made an error of law or fact. Such an error may be identifiable but if not identifiable the sentence may be shown to be, on the face of it, manifestly excessive or inadequate: See Norris v. The State [1979] P.N.G.L.R. 604; Mauwe Antape v. The State [1981] P.N.G.L.R. 68.

I now state briefly the pertinent facts relevant to this appeal. Between 1 September 1981 and 30 September 1981 the respondent had sexual intercourse with his sister, who was about twenty to twenty-two-years-old at the time, approximately nine or ten times. She became pregnant as a result and subsequently bore a child now just over a year old.

The respondent had married a woman from Goroka, Eastern Highlands Province. Four female children were issues of this marriage. His wife left him in 1978 when the youngest girl was only two months old. He was a dental therapist at the Goroka Base Hospital between 1968 and 1978. From the year 1979 he commenced working in Port Moresby. He lived in a hostel at Hohola and left his children with his sister in the village. In September 1981 he started visiting the village and spending weekends with his sister and the children and it was during this time the offence was committed. When the offence was discovered and reported to the police he subsequently left and has lived in Port Moresby with the children since then. The two older children attend Erima Community School and the two younger ones stay in the flat they occupy at Six Mile while the respondent is at work.

It is quite clear why the learned judge made the order, the subject of this appeal. I quote from his comments on sentence:

"I am most concerned about the welfare of those children.

I am not altogether prepared to accept submission of non-care by your relatives, but on the other hand this may well be true in view of the fact that their mother was from the Eastern Highlands. I am mindful that you may lose your employment as a result of the conviction. Your two elder children go to Erima Community School and they are totally dependent on you.

The lawyer for the Government has urged on me the seriousness with which the legislature treats this offence hence the life sentence and the custom view of your relatives.

I have been much troubled about the punishment I should impose taking all matters into account. The range of sentence being imposed presently by this Court averages at two years.

I consider your case a particularly special one because of the special circumstances surrounding your very young children, the fact that no one is immediately able to look after them, and in relation to the two that go to school, they may end up dropping out, if you were to be sent to goal.

In the end result, I am being merciful, for the welfare of the four young children, and I consider that the injustice caused them would be greater than by not sending you to goal — and therefore I will give you another chance."

In sentencing it is proper to take into account the indirect effect of a person being given a custodial sentence. However, such considerations must not be allowed to override the seriousness of the offence committed. Incest is one of the most serious offences found in the Criminal Code and it carries a maximum penalty of life imprisonment. The maximum possible sentence for an offence prescribed by Parliament for any offence shows the seriousness of the offence:

"The term of imprisonment prescribed by the relevant section of the Crimes Act is the public expression on these matters through the legislative process. It is for the judge to determine how important they are in a particular case but always by reference to the seriousness of the crime itself as pronounced by the penalty provided by the statute." R. v. H. (1980) 3 A. Crim. R. 53 at 65.

"The Legislature which reflects the community view of the degree of severity of various types of crimes has seen fit to prescribe a maximum penalty for this offence of penal servitude for fourteen years and an examination of the reported decisions of the criminal courts shows that it is an offence which is almost invariably visited with a goal sentence." R. v. H. at 69 per Begg J

"... However, it should not override the clear dictates of the Parliament that those who commit the crime of wilful murder attract to themselves the possible penalty of imprisonment with hard labour for life. If Parliament represents the people of Papua New Guinea and the laws it makes reflect the attitude of the people, then courts must take heed." I said this in Acting Public Prosecutor v. Uname Aumane, Aluma Boku, Luku Wapulae and Piope Kone [1980] P.N.G.L.R. 510 at 513.

In my view releasing a person convicted of a serious crime (incest) without sentencing him, plainly ignores the seriousness of the crime of incest as expressed by Parliament in s. 223 of the Criminal Code.

In his reasons I have quoted, his Honour said that he was not altogether prepared to accept submissions of non-care by respondent relatives, but on the other hand he thought that this may well be the truth in view of the fact that the mother of the children was from the Eastern Highlands Province. There was no evidence, nor was there any from which inferences could have been drawn, that because the children's mother was from the Eastern Highlands Province the respondent's relatives would not care for the children. No evidence was before the learned trial judge that the respondent's children had been ostracized or disowned or made outcasts by his family. I quote from the evidence of Peter Kape:

"According to our custom it is a most shameful thing defendant has done and he is now an outcast within our family and our good name is degraded by the defendant.

...

Why did you stop me not to come home? Because you gave baby to your own blood sister so we do not want you to come home...