The State v Erika M Lucas ("Prisoners") (2005) N2883

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 22 August 2005
• Court: National Court
• Citation: (2005) N2883
• Docket Number: The State v John Peril
• Year: 2005
• Judgement Number: N2883

Full Title: The State v John Peril; The State v Erika M Lucas ("Prisoners") (2005) N2883

National Court: Davani J

Judgment Delivered: 22 August 2005

N2883

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

AT GOROKA

CR 1161 OF 2004

THE STATE v JOHN PERIL

AND:

CR 994 OF 2004

THE STATE v ERIKA M. LUCAS

(‘Prisoners’)

GOROKA : DAVANI, J

2005 : 12, 22 AUGUST

Criminal Law – Attempting to Pervert Course of Justice – plea – Criminal Code s. 136.

Sentence – Mother of four – sentenced – husband in prison – no substitute caregivers whilst parents incarcerated – children destitute – children’s interest, paramount – Child Welfare Act Chapter 276 ss. 13, 14 and 15.

Sentence – Plea - Attempting to Pervert Course of Justice – Court to exercise sentencing discretion – non-custodial – Criminal Code s. 19 (1) (f).

Counsel:

M. Ruarri, for the State

P.Kaluwin, for the Prisoners

DECISION

22nd August 2005

DAVANI, J: Both prisoners pleaded guilty to 1 count each of attempting to pervert the course of justice, charges laid under s. 136 of the Criminal Code Act (‘CCA’). This section reads;

“136. Attempting to pervert justice

…

A person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert or defeat the course of justice is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding two years”.

Evidence and Law

The prisoner Erika is the mother of a 16-year-old female who was sexually molested by her father, the prisoner’s husband. He presently serves a 14-year jail sentence at Bihute for Incest. The evidence is that she sent the victim, her daughter, to Rabaul so she would not give evidence for the State, against her father. The child/prosecutrix was brought back and the prisoner Erika was told by the Police not to do that again. However, before the date of trial, she again, with the assistance of co-accused John Peril, attempted to send the child/prosecutrix to Lae. The evidence is that John Peril took the prosecutrix from the guardian’s house and had with him a bag containing her belongings. Prisoner Erika purchased beer and gave cash to a man and woman to take the prosecutrix to Lae. However, they were intercepted by the prosecutrix’s guardian.

On allocatus, John Peril said he did what he did because they were suffering financially whilst Erica’s husband was in jail on remand awaiting trial. Erica Lucas said she did what she did because her husband “ordered” her to do so. She apologized to the court and asked the court for its mercy.

Mr. Kaluwin, the prisoner’s counsel, submitted that John Peril was aged 17 when he committed the offence. He has been on remand for 1 year 1 month and 6 days (as at 12th August 2005). Prisoner Erika was on remand for 1 week and since then, has been on bail. She has 4 children, the prosecutrix/victim who is aged 16, and others aged 6, 3 and 1.

Mr. Kaluwin submitted that the mitigating factors outweigh the aggravating factors in that this is their first offence, they both pleaded guilty and that the prosecutrix eventually gave evidence resulting in her fathers conviction for a term of 14 years.

Mr. Kaluwin asked that both prisoners be sentenced to the rising of the court. Mr. Ruarri did not have any submissions on sentence, only re-emphasising that the maximum term of imprisonment is for a period of 2 years.

Both counsel did not assist with authorities or submissions on community work orders if such were to be made. I find that most unhelpful especially in this case where there are four young children who may be left on their own if their mother is jailed. I will expand further on this below.

To assist me in deciding on an appropriate sentence, I considered the case The State v Geyame Kiliki [1990] PNGLR 216. In this case, on 6 June 1990, His Honour the then Brunton, J dealt with the accused person, who had written a letter to a grade 5 magistrate telling her that “any court ruling will provoke a breach of peace in the congregation and will destroy Christian faith, justice and harmony with God’s people in Labu Butu Congregation”.

The accused was convicted and discharged under s. 19 (1) (f) of the CCA, then entered into a recognizance of K500.00 without surety, for a period of two years, conditional upon his keeping the peace and being of good behaviour.

In this case, a mother with very young children has just been convicted. Her husband is serving time as well. What will become of her children if she is sentenced to serve time? It appears her lawyer did not consider this issue to be of any importance, hence the absence of submissions. I have been unable to locate authorities touching on this similar issue. If a court were to deal with an issue such as this, it would undoubtedly seek assistance from the Welfare Services. But it is common knowledge that the Social Welfare System in this country has neither the facilities nor the manpower, money and resources to care for such children. The Child Welfare Act Chapter 276 ‘CWA’ provides a very elaborate framework to care for such children i.e. Part 111 (ss. 13, 14 and 15) of that act applies to children who are declared ‘destitute’ or have insufficient means of support. In the event the Director of Child Welfare is advised that a child is destitute or neglected etc (Part V11 ss. 36 to 47 of CWA) the Director has certain powers he can exercise to care for these children. However, this country’s social welfare system is under funded and successive governments have not given it the attention and focus it deserves, and that has been the trend since Independence. As a result, children whose parents are incarcerated in the jails and cells of this country are left in the care of extended families, who of course, after a while, are unable to care for these children because either their own financial resources are very meager or they do not want to. The children are then thrown into the whirlpool that is the ‘uneducated unwanted youth’ and who are churned out ultimately, in a great majority of cases as criminals and prostitutes. We cannot hide behind the facade that all is well and that the extended family system works. It does not and our children are the victims of governments who see no urgency in revamping and focusing on their needs, considering they are this country’s future.

Having said that, I will not, in this case, throw these innocent children to a system that will not care for them,...