The State v Michael Siwiri (2006) N3382

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 22 November 2006
• Citation: (2006) N3382
• Docket Number: CR No. 663 of 2006
• Court: National Court
• Year: 2006
• Judgement Number: N3382

Full Title: CR No. 663 of 2006; The State v Michael Siwiri (2006) N3382

National Court: Kandakasi, J

Judgment Delivered: 22 November 2006

N3382

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 663 of 2006

THE STATE

-V-

MICHAEL SIWIRI

Daru: Kandakasi, J.

2006: 20th and 22nd November

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Particular offence – Incest – Sexual penetration by an adult male of a niece – Age disparity between victim and offender – Breach of trust – Guilty plea – First time offender - Sentence of 6 years imposed – Section 223 Criminal Code

Papua New Guinea Cases cited:

Koniel Alar and Hosea Biu v. The State [1979] PNGLR 300.

Imiyo Wamela v The State [1982] PNGLR 269.

Roger Jumbo and Aidan Awatan v The State (26/03/97) SC516.

The State v. Tikiria Amos (19/09/05) N2614.

Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71.

The State v. Joseph Ping (17/12/01) N2169.

The State v. Lohori Mau (22/07/03) N2430.

The State v. Peter Yawoma (19/01/01) N2032.

The State v. Attiock Ishmel (16/10/01) N2294.

Sakarowa Koe v. The State (01/04/04) SC739.

The State v. Sevi Kwetok CR N0. 1474 of 2005 (decision delivered in Tabubil on 9th

The State v. Douglas Natilis (Unreported and Unnumbered judgments, 2004)

The State v. Francis Angosiwen (No 2) (21/06/04) N2670.

The State v. Amos Audada (13/05/03) N2454.

The State v. Eddie Sam (03/02/04) N2521.

The State v. James Donald Keimou (12/10/01) N2295.

Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71

The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082.

The State v. Lucas Yovura (29/04/03) N2366.

The State v. Enni Mathew & 8 Ors (No 2) (29/10/03) N2563.

Overseas Cases Cited:

Law v. Deed [1970] SASR 374.

Counsel:

D. Mark, for the State.

P. Kapi, for the Prisoner.

22 November, 2006

1. KANDAKASI J: You pleaded guilty to a charge of sexual penetration contrary to s. 223 of the Criminal Code. After having administered your allocutus and receiving both yours and that of the State’s submissions, I reserved a decision. This is now the decision of the Court.

Relevant Facts

2. The relevant facts as put to you in your arraignment and as they appear from the District Court depositions are these. On 14th August, 2005, at about 11 am here in Daru, Western Province, you were at the main oval/sports field. You saw LW, your victim and your blood niece, aged 20 years old at the time and her aunty walking home from their church service. You met and spoke with L about her teacher wanting to meet her. You instructed L to meet you at the Water Board area near the Daru Airport and you will take her to her teacher. She trusted you and thought you were telling the truth. So she went home, got changed from her church clothes and followed your instructions to get to the Water Board area. She came along with her sister, SL.

3. The girls met you at the Water Board area near Daru Airport. You signalled them and they came to where you were. You told the two girls that LW’s teacher was waiting somewhere away in the bushes and asked them to follow you and they did. You took them some distance away from the main road and into the bushes. L looked for the teacher but she did not find him there. You asked SL to remove herself and she did. She moved away for about 15 metres. As soon as SL was gone, you told L that if she wanted to get married to the teacher then she must listen to you and do whatever you told her to do. You told her that she must have sexual intercourse with you through which, you will collect your sperm and her vaginal fluid, mix them with some oil you already had with you in a bottle and showed her the bottle of oil. You told her to remove her clothes and she did and you proceeded to have sexual intercourse with LW. She felt pain and tried to push you away but she was unsuccessful. After satisfying your sexual desires, you stood and collected the sexual fluids that had been released by you and her by the use of some leaves. You told her that, you will mix them with some oil in the house. The victim then got dressed and the two of you went to where SL was and the three of you left the scene with you following the girls. Before they left, you told them not to tell anybody about what you did to L and they went home.

4. On Monday 5th September, 2005, about 6.30 pm, you went to L and asked her to have sexual intercourse with you again but she did not give in. You continued to go back to her and ask her but she did not give into your requests. Meanwhile, SL saw what was happening and told her parents about what you did and were trying to do with LW. SL’s parents went to the police and reported you and you were arrested and charged.

5. The facts disclose a case of rape because you secured the sexual intercourse with your niece through trickery. The fact of your trickery and securing the sexual intercourse with your niece through trickery were not put to you during your arraignment and are therefore not part of the case against you. If by that reason, this facts were left out, it would render the whole story incomplete and leave the question how did you manage to secure your niece’s consent for the purposes of your sexual intercourse with her totally unanswered. So I note that part of the evidence only to appreciate the possible answer to the question just posed. Other than that, the law is clear.

6. The State is required to put to an accused during his arraignment any aggravating factor the State wishes to raise against the accused. Where it fails to do so, any such factor cannot be taken into account against the offender for the purposes of determining an appropriate sentence. For in guilty plea cases, an accused person pleads guilty to the essential elements of the offence he is charged with. The Supreme Court in Koniel Alar and Hosea Biu v. The State,

lxxxiii [1979] PNGLR 300.

lxxxiii1 affirmed this and provided some guideline as to acceptance of facts in guilty plea cases particularly when there is a conflict in the version of facts for and against an accused. The Supreme Court cited with approval amongst others the following passage per Bray CJ in Law v. Deed:

lxxxiv [1970] SASR 374 at 377-378.

lxxxiv2

“The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution; nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the defendant alone. … [I]f a defendant disputes circumstances of aggravation alleged in sworn evidence from the prosecution, he must do so by sworn evidence from himself or someone else: if on the other hand the aggravating matter is not sworn to and is only alleged on the one hand, and denied on the other, in an unsworn form, then ‘it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused’…

…

The court can reject the explanation if it passes the bounds of reasonable possibility, but I do not think it ought to take this course without giving that defendant an opportunity to support his story by his oath and that of any other witnesses he desires to call. Some stories which might appear incredible when related in oratio obliqua by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination.”

7. Subsequent decisions of the Supreme Court such as the one in Imiyo Wamela v The State

lxxxv [1982] PNGLR 269.

lxxxv3 and Roger Jumbo and Aidan Awatan v. The State,

lxxxvi (26/03/97) SC516.

lxxxvi4 endorsed and applied the above passage.

8. In your case, the State decided not to present a charge against you for rape, where you secured the victim’s consent through trickery would have been a relevant and necessary fact and element. Despite the discloser of a possible case of rape even in parts of your record of interview with the police, the State decided to charge you with the less serious offence of incest. I say the charge is less serious because the penalty is low. The law on what I must do in the circumstances is clear. Where the facts disclose a possible case of rape as is the case here, I must proceed to sentence you bearing that in mind and the fact that, you have been charged with a less serious offence.

lxxxvii For examples of authorities on point The State v. Tikiria Amos (19/09/05) N2614 and Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71.

lxxxvii5 By virtue of the reduced charge, you have already benefited by avoiding the need for you to be charged and dealt with for rape, which carries a maximum penalty of life imprisonment. I must therefore be careful not to unnecessarily further reduce the sentence you should receive.

lxxxviii See The State v. Joseph Ping (17/12/01) N2169; The State v. Lohori Mau (22/07/03) N2430; The State v. Peter Yawoma (19/01/01) N2032 for examples of authorities on point.

lxxxviii6 For as I said in The State v. Attiock Ishmel:

lxxxix (16/10/01) N2294.

lxxxix7

“No doubt...